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Ideologies across Nations:

The Construction of
Linguistic Minorities at the
United Nations

Alexandre Duchêne

Mouton de Gruyter
Ideologies across Nations


Language, Power and
Social Process 23

Editors
Monica Heller
Richard J. Watts

Mouton de Gruyter
Berlin · New York
Ideologies across Nations
The Construction of Linguistic Minorities
at the United Nations

by
Alexandre Duchêne

Mouton de Gruyter
Berlin · New York
Mouton de Gruyter (formerly Mouton, The Hague)
is a Division of Walter de Gruyter GmbH & Co. KG, Berlin.


앝 Printed on acid-free paper which falls within the guidelines
of the ANSI to ensure permanence and durability.

Library of Congress Cataloging-in-Publication Data

Duchêne, Alexandre.
Ideologies across nations: the construction of linguistic minorities
at the United Nations / by Alexandre Duchêne.
p. cm. ⫺ (Language, power and social process ; 23)
Includes bibliographical references and index.
ISBN 978-3-11-020583-1 (hardcover : alk. paper)
ISBN 978-3-11-020584-8 (pbk. : alk. paper)
1. Linguistic minorities ⫺ New York (State) ⫺ New York.
2. United Nations ⫺ Language policy. I. Title.
P119.315.D83 2008
341.4185⫺dc22
2008035954

ISBN 978-3-11-020583-1 hb
ISBN 978-3-11-020584-8 pb

Bibliographic information published by the Deutsche Nationalbibliothek


The Deutsche Nationalbibliothek lists this publication in the Deutsche
Nationalbibliografie; detailed bibliographic data are available in the Internet
at http://dnb.d-nb.de.

쑔 Copyright 2008 by Walter de Gruyter GmbH & Co. KG, D-10785 Berlin.
All rights reserved, including those of translation into foreign languages. No part of this book
may be reproduced in any form or by any means, electronic or mechanical, including photo-
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Cover design: Christopher Schneider.
Printed in Germany.
Acknowledgements

This book is the achievement of a complex journey that led me to various indi-
viduals who contributed to it in various ways. Georges Lüdi was the first to see
the relevance and potential of this project. He strongly supported this work insti-
tutionally and conceptually. Monica Heller has been an essential interlocutor at
various stages of this project. Her insightful comments and critical questioning
enabled me to strengthen my arguments and to significantly extend the scope of
my research.
The research project and the present book received institutional and financial
support from the Swiss National Research Foundation through a personal grant,
providing excellent conditions for the drafting of this book.
The book was first written in French and then translated into English. I
would like to thank Carolyn Henshaw for her contribution, and Richard Watts
for proofreading the English version. I would also like to express my special
gratitude to the two anonymous reviewers for their insightful comments.
I take this opportunity to thank all my colleagues from the Universities
of Neuchâtel, Lausanne, Basel and Toronto for their support. Furthermore, I
would like to acknowledge the indirect contributions of my parents, who through
their own life trajectories and dedication were able to make me aware of social
inequalities from the early stages of my childhood. Finally, my warmest thanks
go to Georges Zecchin for his dedicated support and for being here.
Contents

Acknowledgements v
Introduction 1

Chapter 1
The protection of linguistic minorities as a field of inquiry 5
1. The protection of linguistic minorities: research direction 5
1.1. A sociology of objectifying language: language as the object
of protection 6
1.2. “Critical” sociolinguistics: a protection for whom, why, and
with what interests? 10
1.2.1. Language between practices and politics 10
1.2.2. Minorities and the state: a complex relationship 13
1.2.3. Towards a critical and historically situated sociolinguis-
tics of minority protection 18
1.3. Why study linguistic minorities within the United Nations? 19
1.3.1. An international institution 19
1.3.2. The United Nations: a unique terrain of its kind 20
1.3.3. The United Nations: a central object of investigation 22
2. Conceptual framework 23
2.1. Production of knowledge 24
2.2. Ideologies 26
2.3. Discourse 28
2.4. The historicity of discourses, ideologies and the production
of knowledge 31
3. Collection of data and analytical frame 31
3.1. An immersion in UNO and an apprehension of the field 31
3.1.1. A critical look at the institution 32
3.1.2. An in vivo vision of UNO debates 32
3.2. Documentary research: the process of collecting historiographic
data 33
3.2.1. Collection of data by trial and error 33
3.2.2. A systematic collection of data 34
3.2.3. Collection of data and making the object of study precise 36
3.2.4. Synthesis of this section 37
3.3. Framework of analysis 37
4. Outline 40
viii Contents

Chapter 2
Discursive spaces and the protection of minorities: historical,
institutional and ideological conditions of knowledge production 43
1. Introduction 43
2. The emergence of international institutions and the international pro-
tection of minorities 45
2.1. From consultation to elaboration: a brief history of interna-
tional institutions 45
2.2. The League of Nations: the era of consultation 47
2.3. Synthesis of the section 54
3. The United Nations: the emergence of the institution 55
3.1. Historical premises 55
3.2. The Conference of San Francisco: institutional architecture and
the emergence of human rights 57
3.2.1. The architectural bases 57
3.2.2. The filigree of human rights 60
4. The discursive spaces of the UN and linguistic minorities 61
4.1. Three discursive spaces, three modes of functioning, three forms
of hierarchical relations 62
4.2. The Commission on Human Rights: a political space 63
4.2.1. The creation of the Commission on Human Rights 63
4.2.2. The mandates of the Commission on Human Rights 67
4.3. The Sub-Commission: a space of expertise 69
4.3.1. The mandate of the Sub-Commission: its emergence
and negotiation 69
4.3.2. The methods of work of the Sub-Commission 73
4.4. The Working Group on Minorities: a space of dialog and con-
sultation 80
5. Conclusion 85

Chapter 3
Production of discourse and institutional constraints:
the search for objectivity 88
1. Introduction 88
2. From speech to text: the regulation and production of discourses at
the United Nations 90
2.1. Speaking out at the United Nations: some discursive dimensions 91
2.2. The United Nations and the production of documents 97
2.2.1. The institutional regulation of discourse:
example – the summary record 99
Contents ix

2.2.2. The summary record: from desire for objectivity


to necessary selection 100
2.2.3. From directions to writing: discursive “passages” 108
2.2.4. Synthesis of the section 116
3. Conclusion 118

Chapter 4
State divergences and the principle of universality:
a protection through absence 120
1. Introduction 120
2. Presence and ambivalence 122
2.1. First steps towards the Declaration and ambivalence
on the question of minorities 122
2.2. Discursive movements and the location of an article 124
2.2.1. Three propositions, three stages of writing 124
2.2.2. The discursive processes of modification 127
2.3. Ideological issues, changes and diversity of positions 130
2.3.1. The reasons given to explain the changes 130
2.3.2. The ideological issues of the discursive movements 134
3. The Commission on Human Rights and the eviction of minorities 137
3.1. A non-legitimate presence 138
3.2. Proponents of the presence of the Article: towards a justification 143
3.3. Synthesis of the section 146
4. The General Assembly: power relations and ideological divergences 147
4.1. The Declaration as a culture of compromise 147
4.2. Polarization of points of view and ideological division:
minorities in question 148
4.2.1. The Soviet endeavors and criticism of the Declaration 148
4.2.2. Response to criticism and commendation of collegiality 151
4.2.3. Criticism of the state as the backdrop of discussion 152
4.3. The fate of minorities: the pursuit of expertise 153
5. Conclusion 155

Chapter 5
Ambivalence, particularism and the reproduction of state interests: a limited
protection 159
1. Introduction 159
2. The strategic cautiousness of the Sub-Commission: the emergence
of an article 160
x Contents

2.1. The search for multi-modal measures of protection: the first


steps towards the specification of an article on minority rights 162
2.1.1. Three discursive strategic positions in the first steps 163
2.1.2. The establishment of the conditions necessary for for-
mulation, and the conceptual premises 166
2.2. A strategic article, a reproduction of state interests 177
2.3. Synthesis of the section 179
3. An accepted presence, a formulation under discussion: the debates
of the Commission 180
3.1. The conditions of possibility for acceptance 180
3.2. Three propositions, three conceptions of minorities
and their protection 182
3.2.1. Three propositions 182
3.2.2. The arguments 183
3.3. Identifying the “right” proposition: a political decision 186
3.3.1. The fears: separatism and the creation of new minorities 187
3.3.2. The proposition by the Sub-Commission as an appease-
ment of fears 193
3.4. Synthesis of the section 194
4. Distance, non-commitment and legitimization: the discussions
of the Third Commission 195
4.1. Acceptance of presence through negation of existence 196
4.2. Acceptance of the presence as legitimization
of national institutions 199
4.3. Synthesis of the section 202
5. Conclusion 203

Chapter 6
Institutional continuity, the management of paradoxes
and state consensus: a controlled protection 205
1. Introduction 205
2. The emergence of the Declaration on Rights of Persons Belonging
to Minorities 207
2.1. The proliferation of rights and international mechanisms within
the United Nations 207
2.2. The emergence of the Declaration on minority rights within
the Sub-Commission 209
2.2.1. The Capotorti report and the premises of the Declaration
on minority rights 210
Contents xi

2.2.2. The reception of the report: acceptance of the recom-


mendations, rejection of the definition 213
3. The elaboration of the Declaration 215
3.1. Preliminary steps 216
3.1.1. A source document 216
3.1.2. A definition of the term “minority” as a necessary con-
dition of formulation? 218
3.2. The resolution of paradoxes: the conditions of the Declaration’s
acceptability 229
3.2.1. A paradox between the necessary presence of a defini-
tion and the impossibility of creating one 230
3.2.2. A paradox between collective and individual rights 234
3.2.3. State duties and state interests 236
3.2.4. Synthesis of the section 238
3.3. The Declaration: the final document and the place of language 239
3.3.1. The general structure of the Declaration 239
3.3.2. Linguistic minorities and language:
their discursive inclusion 240
3.4. A step forward, but for the Others: the acceptance
of the Declaration 246
4. The Declaration and new possibilities for the protection
of minorities: the Working Group 248
4.1. General context of the Working Group’s procedure 249
4.2. The catalog of particular situations as the production of knowl-
edge and institutional action 249
4.3. The adoption of new measures: a future Convention? 253
5. Conclusion 256

Chapter 7
Conclusion 258

Notes 265
References 270
Index 280
Introduction

Since the rise of the nation-state in the 19th century, issues concerning linguis-
tic minorities have generally been debated within the contexts of nation-states
and their institutions. This can explain historical emphases on the constitutional
rights for linguistic minorities and on the implementation of language regulation
bodies within the boundaries of the nation-state. Over the past several decades,
however, the nation-state has been displaced as a major site of discursive produc-
tion on linguistic minorization. Supra-national and international organizations
(such as the United Nations, the European Union, NGOs, etc.) have emerged as
key sites for the examination of debates on linguistic minorities. In fact, these
discursive spaces play fundamental and authoritative roles in the management
of diversity as well as in the propagation of essentialized views of language
and minorities by endorsing universalistic assumptions (e.g. universal language
rights, linguistic biodiversity, etc.).
Perhaps due to their rather recent emergence, international organizations
have attracted little critical attention within the field of linguistic anthropology
and sociolinguistics. Fundamentally, I consider that these sites can no longer be
ignored and should be considered as key sites for the sociolinguistic considera-
tion of linguistic minorities, since on the one hand they shape the distribution of
power and on the other reify state ideologies under the umbrella of international
structures.
Precisely for this reason the present book aims to take up the challenge and
engage in the discussion surrounding the role of international organizations, in
adopting a critical stance on the internationalization and universalization of the
protection of linguistic minorities.
To do so, this book takes a detailed look at one specific international or-
ganization, the United Nations, as a power institution producing discourses,
knowledge and actions on the protection of linguistic minorities. The book in-
terrogates the institutional structure through a close and innovative examination
of the interests and ideologies at stake in the establishment of international reg-
ulation of the protection of linguistic minorities within an international setting.
Concretely, the book examines the international component of language and
institutional ideologies by asking the following questions:
– What does it mean to talk about the protection of linguistic minorities within
an international context?
– Who is considered legitimate to address minority issues, why and how?
2 Introduction

– What are the economic, political and national interests and implications of
creating international structures to protect linguistic minorities?
This study arises from the idea that the United Nations have played, and continue
to play, a particular role in debates about the protection of linguistic minorities
because: 1) as an international organization, they are part of the collection of
places where the norms in this matter are established; 2) they produce a knowl-
edge specific to this subject; 3) because they are the object of criticism or used as
a legitimate voice in various places; but also, 4) they are composed of states that
created the United Nations and are managed by them, thus raising the question of
state interests, as far as minority protection is concerned, within an international
institution.
I consider that the study of the United Nations as a field of research essen-
tially allows the demonstration of the following elements constituting the central
argument of this book:
– Expert and state discourses are anchored in different – sometimes convergent
and sometimes divergent – positions and envisage the protection of minorities
from an essentially political and national angle while, at the same time, seeking
to construct a common international ideology;
– The discourses on minorities are embedded in the conceptual and institutional
frame of human rights and therefore reflect a series of paradoxes in regard to
both the universal and the particular;
– Finally, the protection of linguistic minorities within the United Nations is a
complex phenomenon, comprising a form of recognition of minorities while
allowing for the preservation of state prerogatives.
This work therefore seeks, on the one hand, to contribute to the understanding of
the ambiguous relations between states and their minorities; on the other hand,
it will allow for the provision of elements that are likely to make a contribution
to the discussion of the protection of linguistic minorities and their languages:
1) by providing a critical examination of the complexity of any undertaking that
aims to protect minorities and 2) by insisting on the necessity of understanding
international action as being closely linked to the various national interests
involved.
Drawing on the understanding of discourse as a jointly constitutive and con-
straining practice, the book examines how discourses of linguistic minorities
are conditioned by historical and institutional processes. In particular, it draws
attention to the elaboration of minority rights issues by the United Nations by
considering them not as a stable product but as an institutional process and a site
of power. Focusing on the various debates on the protection of linguistic minori-
ties from 1946 to 2003, the book addresses the question of the historical, insti-
Introduction 3

tutional and discursive conditions that enable a specific legal instrument to take
form. It follows step by step, through a close analysis of the debates accessible
through summary records, the construction of international laws, and offers an
insightful understanding of the machinery of the production of discourses on and
knowledge of linguistic minorities. Finally, the historical perspective provides
a diachronic understanding of the political issues and international concerns
surrounding the protection of linguistic minorities throughout and across major
eras from post WWII to the Cold War, from decolonization to globalization.
This book is an invitation to a genealogical understanding of the ideological
and discursive processes that have emerged out of the regulation of linguistic
minorities issues within an international context. It highlights the contradictions,
limits and possibilities in the elaboration of international measures within the
universalist framework of human rights.The book also emphasizes the paradoxes
between national interests and the elaboration of an international community,
paradoxes in which minority issues fundamentally question the homogeneity of
the state. It shows that despite the shift from national spaces to international
ones the fears of nation-states for linguistic minorities remain. Finally, the book
reveals the importance of the reproduction of the interests of nation-states within
an international organization and the reproduction of power through the legal
management and regulation of minority rights in general, and those of linguistic
minorities in particular.
The general history of this book, i.e. the history of the United Nations, its vi-
sion of the protection of linguistic minorities, the underlying ideologies that have
emerged, as well as the limits and possibilities of action, should contribute to a
better understanding of the complexity of the protection of linguistic minorities
and the role of language ideologies within an international context.
Chapter 1
The protection of linguistic minorities
as a field of inquiry

1. The protection of linguistic minorities: research direction


The research questions set out in this book originate in questions that have
marked the history of ideas in sociolinguistics, and persist today. Indeed, soci-
olinguistics emerged in the sixties as a counter-movement to innatist approaches
put forward by generativist studies and structuralist approaches seeking to lo-
calize the homogenous language system. Contrary to the dominant movements
of that time, sociolinguistics was involved in a more general consideration of the
links between language(s) and society and, within this framework, has sought
to understand the manner in which social processes and the processes of lan-
guage articulate with one another. Different approaches emerged, seeking ei-
ther to break away from classical linguistics by studying language from the
perspective of practices or, on the contrary, to lay claim the existing theoreti-
cal framework while expanding its field of investigation to that of “speech” and
“performance”, dimensions that were excluded from the system of Saussure and
Chomsky. While, in the current path of sociolinguistics, approaches are diverg-
ing, the investigation of linguistic minorities, on the contrary, assumes a major
overarching importance in a significant number of past and present studies in
the discipline.
The emergence of linguistic minorities as the object of investigation for
linguists is grounded in reflections on linguistic diversity and language contact
within a given place, and is accompanied by different attempts to promote action
in linguistic, educational and social politics. Accordingly, the following section
will deal with the question of understanding how linguistic minorization has
become an important component of academic studies and why the protection
of languages appears as a praxeological undertaking for researchers in this do-
main. These investigations also seek to understand the subjacent conceptions of
language that can be extrapolated from these studies.
In fact, I have foreseen the complexity of the elements involved in under-
standing linguistic minorities, distancing myself from structural and functional
studies by taking my bearings from interactional and critical sociolinguistics.
These studies are founded upon what I consider to be a change of paradigm in the
scientific understanding of linguistic minorities; i.e. an approach to linguistic
minorities as a discursive production situated and envisaged in the perspective
6 The protection of linguistic minorities as a field of inquiry

of power relations, connected to ideological and political stakes. I shall then


clarify the relevance of the chosen field in order to establish my work under the
aegis of a historically situated and explicative sociolinguistics.

1.1. A sociology of objectifying language: language as the object


of protection

Among the research trends in sociolinguistics, there is one that has a particular
bearing on the issue of protecting linguistic minorities and languages through the
intermediary of law, language planning and language policies. I consider that this
trend has strongly influenced the history of linguistic ideas, as well as remaining
dominant in current research. Accordingly, an examination of the conceptual
framework demands that we pause here in order to understand how linguistic
minorities have become an essential object of investigation for researchers in
this framework.
This research movement, which I qualify as a sociology of objectifying lan-
guage, is based on the work of the sociolinguist, Joshua Fishman. For Fishman
(Fishman 1972), the question of linguistic minorities leans essentially towards
language as the object of investigation. The recognition of plurilingualism as an
established fact, then, leads to an attempt to understand the functioning of such
a co-existence of languages within a given society. Anchored in a functional and
structural approach, language is a phenomenon that can be located and observed
within previously delineated borders in the framework of a given state. In this
way, Fishman’s work led to the valorization of state plurilingualism and to the
promotion of diverse forms of language planning, while seeking to demonstrate
the factors determining the retention and the loss of language (Fishman 1972,
1991, 2002). This kind of work thus tends to construct linguistic minorities and
minority languages as existing within a “natural” space. They are not created;
they are a fact. Languages in co-existence are described in their internal func-
tionality and connected to social determinants, in terms of correlations. They
become the object of a continual investigation with regard to their vitality and to
their possibility of existing within a given state. Language is a transparent and
foreseeable given and the linguistic community, in Fishman’s work, is connected
to the existence of languages or of stable, overlapping variations in a system of
collective values and norms.
These discourses, founded upon a functional and structural approach to lan-
guage, entail different kinds of consequences that emerge through the promotion
and establishment of language policies. They thereby seek to respond to a social
necessity: the “painful” co-existence of different languages or varieties. The
The protection of linguistic minorities: research direction 7

many studies emerging from this trend will thus be included in a regulatory
logic of inter-group relations and will attempt to put institutional systems into
place that favor linguistic diversity within a given territory.
The focus on language planning (Kloss 1969; Haugen 1987; Cooper 1989)
has made considerable advances in North America and also in Western Europe.
Language is perceived, in these studies, as a necessary factor in the construction
of identity, as well as in the preservation of cultural and historic patrimony. Lan-
guage is identity, and, in this sense, language must be preserved and protected, if
not fixed. In addition, fixation becomes the guarantee of the stability of identity.
Language planning will thus seek to enact and legitimize these practices for the
purposes of identity and nationality. Quantitative approaches to linguistic vital-
ity like, for example, demolinguistics (cf. Heller 2002a, for a critic of this tool in
Canada), support the theses of assimilation and reinforce the need for linguistic
division in order to preserve certain groups. Language is thus quantifiable and
measurable.
This trend is progressively accompanied by movements of “revival” (cf. Free-
land and Patrick 2004 for a historical overview of this discourse) in which the
preservation of linguistic characteristics becomes an object of struggle and is
therefore considered as a social necessity. Academic circles actively participate
in this and endeavor to establish a linguistic minority by defending the char-
acteristic that makes the minority a marginal group, i.e. language. An echo of
this is also to be found in the field of education (cf. Cummins 2000; Skutnabb-
Kangas and Cummins 1988). The teaching of patrimonial languages, teaching
by immersion or bilingual teaching become the means by which to resolve social
problems.
If, in this approach, the construction of the linguistic borders of the nation-
state remains central to the understanding of the relationship between individuals
and their language, the question of linguistic rights (cf., for example, Giordan
1992; Fenet 1985; Maurais 1997) as a means of action to reduce social inequality
becomes, like educational initiatives, an essential stake in the sociolinguistic un-
dertaking. These rights movements, similar to those dealing with language plan-
ning, seek to integrate a legal recognition of the languages of minorities into state
constitutions. Sociolinguists will have a considerable role to play in this regard
and will promote the law as a guarantee of the peaceful co-existence of commu-
nities.This work, which seeks to establish linguistic minorities in a judicial order,
is currently making new advances by including linguistic rights from the per-
spective of their universality and that of human rights in general (Phillipson and
Skutnabb-Kangas 1995; Skutnabb-Kangas 1998, 2002; Skutnabb-Kangas and
Phillipson 1995, 1996; Skutnabb-Kangas, Phillipson and Kontra 2001). Studies
such as these rest explicitly upon an irrefutable fact – the death of languages
8 The protection of linguistic minorities as a field of inquiry

and, with it, loss of patrimony; even, more radically, the death of the population.
The proof of this fact arises from a presupposition similar to what we have seen
before, i.e. that clear borders exist between languages, that they can be counted,
catalogued with certainty and that, above all, their vitality can be promoted and
their disappearance prevented. Language here is considered principally as an
object, which exists of course in relation to speakers, but fundamentally these
speakers only seem to exist via the language they speak. What must be pro-
tected above all, then, is the language; if the language can be protected, then
individuals and groups will also be protected. Thus, Skutnabb-Kangas (2002)
emphasizes that “through linguistic genocide in schools we are not only killing
languages, we may be killing the prerequisites for our great-great-grandchildren
to exist”. In this sense, the inter-relation between “linguistic genocide” and the
disappearance of a section of humanity becomes obvious. The author goes on
to say that “the knowledge for preventing this exists, but it is not being used”
(p. 900), thus insisting on the ethical duty of each individual in the activation of
this existing and established knowledge.
While the consequences of this research may be to promote multilingualism
and to fight against discrimination – and in doing so, it could not please me more –
it does seem to lead to certain logical impasses. As in Fishman’s sociology of
language, upon which this field of thought is based, language is disconnected
from its social dynamics in the sense that it exists without it – or, rather, the
only reason to refer to social dynamics is to explain the death of languages.
In other respects, the emergence of the principle of universality and human
rights as praxeological and conceptual paradigms tends to give rise to valuable
principles in all situations and contributes in a particular way to the linearity of
the processes rather than adding to their complexity. There is therefore a kind of
paradox inherent in these approaches: the paradox of diversity being associated
with universality. It is revealed even more explicitly with the emergence of the
notion of the biodiversity of languages, and it leads to an essentialist vision of
language, putting it in a position equivalent to plant and animal species (Maffi
2000), even indicating, indeed, that the extinction of languages is more rapid than
the extinction of species (Skutnabb-Kangas 2002). A classification of languages
thus comes to be grafted onto the classification of species, following the same
logic and allowing an objectification of “facts”.
Criticism with regard to the state is present in these various studies, and
emphasizes above all how the state fails in the recognition of linguistic diversity.
However, here again, as commendable as this criticism is, these studies tend to
reproduce particular kinds of categorizations of language that are essentially the
product of the nation-states themselves (cf. Duchêne and Heller 2007) and only
partially succeed (this is probably not one of their objectives, even though there
The protection of linguistic minorities: research direction 9

is an insistence on the necessity of diversity) in bringing back into question the


unitary vision of languages.
As Heller (2002a) remarks, “the basic idea of this approach . . . is that the
‘normal’ state of a language would be the European model from the period of the
nation-state’s construction, which links the ideology of language as a watertight,
coherent and complete system to the ideology of the homogenous and clearly
delineated nation and to the ideology of the State with its well-defined borders”
(p. 178). The consequence of a structural and functional approach therefore
somehow tends to avoid a re-questioning of the linguistic principles established
by states, and to conceive language, therefore, as an object that can be delineated
and identified.
In summary, these studies envisage the protection of linguistic minorities
by emphasizing the inclusion of linguistic rights in universal human rights and
by favoring the axis of language above that of minorization. Furthermore, they
also emphasize an understanding of the phenomenon by putting it on an inter-
national level, distancing themselves from the kind of particularism inherent
in the multiplicity of sociolinguistic situations, while at the same time seeking
speakers outside the state, i.e. at the inter-state level. Furthermore, they effec-
tively establish linguistic minorities as objects of reality and in this way follow
the logic of nation-states.
Although there is no question here of a deliberate intention to proceed in
this way, I consider, nevertheless, that the epistemological foundation of these
studies can only fix the linguistic borders and thus demarcate a certain kind
of standard, which alone can make political action in the matter of language
possible. The object, “linguistic minorities”, appears to be necessary to the very
existence of the discipline, somehow legitimizing it. These academic discourses
are incidental insofar as they do not succeed in going into the complexity of
the actual existence of linguistic minorities – i.e. their constructions within
the ideologies of nation-states – and, in this sense, they maintain a vision of
language as, above all, objectifying. Moreover, these studies pass into silence
just as political action with regard to language, grounded in the same logic as the
logic of nation-states, supports proto-nationalist theses in line with particular
movements of linguistic minorities emerging at the end of the sixties.
As far as I am concerned, and subsequent to different critiques relating to
these studies (see Blommaert 2001; Heller 2002a, 2004; see also for another
nuanced perspective on linguistic rights May 2003, 2004, 2005), I consider that
this approach tends to reify language in its fixed and delineated dimension, and
that it is not capable of integrating the complexity of the social, economic and
political factors that are involved in any process of linguistic, cultural or other
minorization and, by extension, in any kind of protection of minorities. Accord-
10 The protection of linguistic minorities as a field of inquiry

ingly, those who adopt this approach – often put in the position of experts –
tend to misconstrue the ideological meaning of their own discourse, while at
the same time denying the very principles that cause minorization – principles
that therefore go beyond the single object language to a considerable extent. It
is necessary, then, that we seek to understand what is at stake in the protection
of linguistic minorities as a discursive product within the nation-state. It will
be a necessity to envisage the complexity of questions regarding minorities in
constant relation to the places in which these discursive constructions emerge,
i.e. the places where a means of using the notion of minority exists.

1.2. “Critical” sociolinguistics: a protection for whom, why, and


with what interests?

The approach to and the reading of linguistic minority protection that I am


proposing here are different, and correspond to how I consider language and
minorization. I shall attempt, then, to reveal the complexity of what is at stake in
minorities by calling upon various reflections relating to the necessity of under-
standing language and minorities in terms of what they represent on a political
level. I thus intend to establish my approach to linguistic minorities within social
theories. Thereafter, and according to the position that I then develop, I intend to
show where and how it is possible to envisage the study – in a critical manner –
of linguistic minorities in an international framework, and to demonstrate the
possible contribution of such an undertaking for the question at hand.

1.2.1. Language between practices and politics


Contrary to the approaches that I have referred to above, I consider that language
is above all linked to communication practices and thereby establishes itself as
eminently social. The formal contours that a language assumes do not emanate
from some “divine” process; they exist beyond any given territory and are the
product of the language practices that form and trans-form its structural com-
ponents. Language in this sense does not allow itself to be catalogued, classed
and ordered in the same way as geometric forms, and does not obey the same
rules as the formulae of logic and algebra.
Indeed, language is above all a dynamic phenomenon that transforms and
modifies itself, to incorporate new forms just as it may well lose other forms.
This vision of language is, of course, nothing new. Since Hymes (1973) – and
the concept of communicative competence that seeks to divert Chomsky’s in-
natist opposition of competence and performance – we have known that lan-
guage practices do not materialize through a homogenization of form, and that
The protection of linguistic minorities: research direction 11

communication practices allow language to insert itself into a series of social


processes that tend towards different interactional objectives. For Hymes (ibid.),
not only does a diversity of languages exist, but also a diversity of manners of
speaking according to a diversity of situations. In that sense, it is impossible to
separate the social and the linguistic or to shut them up in variables and cor-
relations. Other works in the ethnography of communication (Gumperz 1981a,
1981b; Lüdi and Py 2003) also seek to develop a dynamic approach to language
in the understanding of the contexts of its emergence, in its social role and
in its processes of co-construction (cf. also Lüdi 1991). Language, therefore,
is fragile, fluid, fundamentally heterogeneous and must necessarily pursue the
objectives of communication. As researchers working in multilingual sociolin-
guistic contexts have shown (cf. Lüdi 1992; Lüdi and Py 2003; Matthey and de
Pietro 1997), the structures of language are modifiable; they are not immedi-
ately “evident” and accessible. Language interactions in plurilingual contexts
thus bring about pragmatic, specific and contextualized ways and means. The
utilization of language forms is balanced by strategies that are not homogenous
and that constantly modify the normalized state of the language. Internal or
external migration situations create new language forms that are progressively
incorporated into the dominant language of a region, without the native speakers
necessarily realizing it (cf. Grosjean and Py 1991).
Moreover, the inclusion of migrants in the understanding of the dynamics of
language allows us to go beyond some of the monolithic visions of strictly speak-
ing national languages. Indeed, for Lüdi (1990b), in a traditional conception of
minorities, “we close our eyes, so to speak, with regard to what is sometimes
delicately called personal linguistic minorities (Mackey 1983) resulting from
migratory movements of various origins (refugees, migrant workers, repatriated
colonial civil servants, etc.)” (p. 114). The author goes on to emphasize the im-
portance of going beyond the split between national linguistic minorities and
migrant communities in order to depart from a piecemeal conception of identity
and to be able to conceive of a plurilingual identity that transcends national splits.
It is also along these lines that we can re-think Ferguson’s concept of diglossia
(Ferguson 1959) in order to arrive at the concept of polyglossy, and demand a
fundamentally plurilingual approach (cf. Lüdi 1990a).The latter approach effec-
tively permits us to go beyond a simple inter-relation between “high” language
and “low” language, and to include here the interactional complexity and the
dynamic side of plurilingual practices. A moving and “circulating” conception
of language practices, moreover, brings about a re-reading of the identificatory
and symbolic components of language in that such a re-reading would allow us
to see particular identity acts that a structuralist approach to language is inca-
pable of revealing (cf. Le Page and Tabouret-Keller 1985; Duchêne 2000). These
12 The protection of linguistic minorities as a field of inquiry

acts are essential to an understanding of the complex mechanisms relevant to


the means of language, and allow us to think of language and language practices
as no longer only observable and demarcatable, but also as part of a cluster of
social phenomena.
At the same time, language also constitutes a political means, a means of
struggle, a means of exclusion. The necessity of fixing a language at a particular
moment in order to achieve objectives of standardization, in order to create
a particular common denominator, is an eminently political and ideological
act that, in a particular way, is out of step with effective practices. Language
can be the object of uniformity and standardization. Monolingualism can thus
be preferred to linguistic plurality or to a selective linguistic plurality. It is
at this moment that language becomes the object of struggle because, at play
behind these objectives of homogenization, are ideological stakes and eminently
political choices in which languages, varieties and practices will be put into a
hierarchy according to research objectives (see Higonnet 1980; Swiggers 1990;
Kasuya 2001 for the historical dimensions, and also Klinkenberg 2001a, 2001b).
Bourdieu (1980, 1982) emphasizes the characteristic of language as an ide-
ological means by insisting on the phenomena of inclusion and exclusion that
are linked to it. For him, language is above all to be understood in terms of the
power relationships that it brings to light: “la langue . . . est sans doute le support
par excellence du rêve de pouvoir absolu” (Bourdieu 2001: 66) [‘language . . . is
without doubt the supreme support of the dream of absolute power’]. Language,
therefore, is more than a simple object: it is practices but it is also symbolic and
material resources. In this way, language conditions particular forms of social
stratification, permitting or limiting access to positions of power. Language thus
becomes a means of exclusion and social inequality, just as it allows social repro-
duction. The specter of exclusion and social inequality can be seen in different
institutional settings, for example at school or in the workplace (Boutet 1994;
Goldstein 1997), as well as in different forms of conflictuality within the micro-
cosm, like the couple (Piller 2002) and the family (Desprez 1994; Duchêne and
Rosenbaum 1999; Duchêne 2001). The importance of the political and social
stakes with regard to choice of language(s) or of variety(ies), for example, is
thus included in the dominant perceptions of what is valued or devalued in a
given society.
When we return to the perspective of linguistic minority protection, the ques-
tion of which languages, varieties and practices should be protected – and why
these and not others – arises. Seen from this angle, the question of the protec-
tion of languages becomes far more complex, more ideological and necessarily
more arbitrary. Behind these questions, there are others concerning who has
the capacity to decide, according to what criteria and with what legitimacy, thus
The protection of linguistic minorities: research direction 13

referring to the state and dominant ways and means. In this way, questions about
language are joined to those about minorization insofar as language is one of
the elements on the basis of which exclusion occurs, and insofar as exclusion
is inscribed in a cluster of complex factors in which the relation between power
and the proclamation of norms based on certain characteristics tends to maintain
a constant quest for homogeneity.

1.2.2. Minorities and the state: a complex relationship


To raise the question of minorities and their protection seems to me above all
to envisage their existence within a certain social and diachronic order; more
specifically, it is about thinking of linguistic minorities as a discursive production
and political means.
As Hobsbawm (1990) emphasizes, at the beginning of the 20th century, the
national question in the whole of Europe assumes a central importance. The
principle of nationalities was replaced by the principle of the state, leading to
the idea that a state should comprise of a single nationality, which led in turn
to a radicalization of language and ethnicity as the only condition of national-
ity. Furthermore, the nationalism that emerged at the end of the 19th century
manifested itself in the form of discourse arising from right-wing politics at
the beginning of the last century. The socialist workers’ revolution, directed in
several nation-states by the lower middle classes, became an obvious danger and
authority tended to react by promoting a race – nation equation. What followed
was a nationalism of the masses, inflated by the petite bourgeoisie in power,
irrefutably assuming the features of anti-Semitism and racism. The ideological
manipulation consisting of allying the national question to the social question
allowed the union of all social classes under the banner of patriotism, with
nationalism thus becoming the solution to the states’ social problems.
After the First World War, the fall of composite empires brought about, for the
first time in history, the emergence of a European continent characterized by the
presence of numerous states, most of them defined in terms of the United Nations
but also conceived as “some kind of bourgeois parliamentary democracies”
(Hobsbawm 1990: 131).1 Through the Treaty of Versailles in 1919, a form of
equation from the time of the French Revolution was reproduced: state = nation =
language; the notion of race, ethnicity, religion, etc. can be substituted for the
last element of the equation. This territorial demarcation, however, does not
take a fundamental fact into account, i.e. the states, newly created out of great
empires, remained multinational and multilingual:
The main change was that states were now on average smaller and the ‘oppressed
peoples’ within them were now called ‘oppressed minorities’. The logical im-
14 The protection of linguistic minorities as a field of inquiry

plication of trying to create a continent neatly divided into coherent territorial


states, each inhabited by a separate ethnically and linguistically homogeneous
population, was the mass expulsion or extermination of minorities. (Hobsbawm
1990: 133)

The artificiality of the construction of states after the Treaty of Versailles also
introduced a new element, i.e. that the notion of nation was revealed as not really
coinciding with the identification of the people concerned. What characterized
the inter-war years was the use of nationalist ideas by fascist and extreme right-
wing movements. Nationalist propaganda had as much weight within the middle
classes as within the working classes, in that state problems were seen in the
form of external causality. The pre-First World War premises of state nationalism
were therefore extended, taking into account the different economic crises facing
many nation-states. Fascist ideologies made full use of nationalist ideas (in
Germany and Italy), while minorities without states sought a radicalization of
separatist positions.
One can consider the supreme form of nationalism to be found in the Nazi
ideas of the Third Reich: the adoption of a racist discourse in order to construct,
by any means possible, a homogenous empire. Racial and linguistic ideas then
converged in a form of racial order that allowed genocide to be legitimized
and that was anchored in the production of a knowledge founded above all on
lauding the superiority of one race and one language over another (cf. also Hut-
ton 1999, 2004). Confronted by this ideology, opposing world movements then
stressed the need for an alliance between bourgeois nationalism and socialist
ideologies, united under the same banner of anti-fascism. It nonetheless remains
the case that, under this banner, the homogenous ideals of the states were per-
petuated from the end of the Second World War until almost the end of the 20th
century.
These reflections about the research on homogeneity and its political utiliza-
tion allow us to emphasize the quest for national unity and the appropriation of
language for nationalist purposes. Here, language is effectively embodied in a
framework that is much larger than its form; language is therefore essentially
submitted to means that go far beyond it and that by necessity lead to a reflection
on the construction of minoritization. The very notion of minority is concomi-
tant with a radicalization of nationalist ideas and thus allows us to understand
how the problem of minorities emerged and is constructed historically.
Indeed, minorities have historically been constructed in relation to nation-
state ideologies that consist of the quest for homogeneity, leading states to qualify
as “minorities” those groups that do not meet the dominant criteria. The minori-
ties thus emerge in line with the radicalization of nationalist movements and the
territorial changes after the First World War (cf. Hobsbawm 1990).
The protection of linguistic minorities: research direction 15

For nation-states, the existence of minorities effectively constitutes a chal-


lenge to national unity, and they are not inclined to favor linguistic and cultural
heterogeneity. The dominant characteristics by which a state defines itself be-
come, then, “the symbolic ground for the construction and legitimization of the
nation-state and of its citizens” (Heller 2002a: 179). The state seeks by vari-
ous means to stifle heterogeneity by practicing assimilation or the transfer or
displacement of minorities, but does not succeed in destroying this diversity.
Minority movements emerged progressively during the sixties, demanding the
same rights – legal recognition of their existence – and brandishing the specter
of separatism in order to do so.
The emergence of these movements places the constant interaction of sites
of the production of discourse in minorities in accordance with the evolution of
the state. This has, moreover, been shown by numerous studies in critical socio-
linguistics, which seek to understand the origins of nationalist discourses and
to include their research in an ideological understanding of the stakes involved
in linguistic minorities.
Jaffe (1999), for example, emphasizes the importance of discourse about
the Corsican language as a claim for autonomy in the face of the centralizing
power of the French State. For sociolinguists of the Corsican language and its
standardization through, among others, spelling, the means of language became
a means of political action.This also shows, moreover, that the means of language
become means of identification, and therefore reveal the multiple processes of
minorization from which the nationalist Corsican movements seek to distinguish
themselves by creating a group uniformity, a process in which language takes
the form of a consequent means. “Nationalists have consistently kept the issue of
the Corsican language at the forefront of political discourse, and have been the
catalysts for all the early language related legislation in the Corsican Regional
Assembly” (1999: 69).
We find this kind of discourse in other nationalist movements of the time:
in the Basque country, in Wales, Ireland and Brittany. In the case of Brittany,
for example (McDonald 1989), the identificatory discourse seeks to distinguish
itself from “French” and to be constituted as a people with homogenous charac-
teristics. The protectionist discourse that emerges therefore explicitly takes its
bearings from the French state’s linguistic and cultural strategies of homogeniza-
tion. McDonald emphasizes this: “militants regard French educational policy
since the eighteenth century as a continuous ‘cultural genocide’” (1989: 76).
In Quebec, nationalist discourse during the period of minority movements
took the form of demands for provincial powers. The French language became an
object of discursive struggle in the face of the dominant English-speaking power.
The nation was created discursively, breaking away from the traditional concept
16 The protection of linguistic minorities as a field of inquiry

of the French Canadian nation. Quebec thus constructed a discourse anchored


in the idea of a Quebecois nation-state (Heller 2002b). Within this ideological
transformation, language becomes an essential element of discourse. As Heller
states (2002b): “combining its legitimisation as defender of a Quebecois nation
with roots in ethnic nationalism, and its legitimisation as representing the other
citizens” and persevering “to the extent that one could claim that language is
something that can be learned, it is a better symbol of belonging than race,
religion or ethnicity” (p. 42). Language as a means of unificatory value appears
here as a place of resistance and gathering.
In their opposition to the dominant power, therefore, the demands of mi-
norities themselves remain dependent on the same state ideologies, reproducing
within themselves the homogenization that led to both their minority status
and the exclusion that has confronted them. The inclusion of diversity becomes
problematic precisely because it constitutes a risk that prevents the clear and de-
marcated existence of the social groups trying to gain a kind of independence.
The reproduction of nation-state ideologies can also be explained by the hege-
mony of a world order that tends to set up the concept of the nation-state as a
norm and therefore necessarily situates minority discourses within this logic.
To be recognized means acceding to a proper national identity.
Faced with this and dependent on its own nationalist ideologies, the nation-
state thus considers minority movements not only as a challenge for the state’s
homogeneity but also as a real threat to internal peace and stability. The state then
finds itself in a series of dilemmas: to recognize minorities, thereby avoiding
the specter of separatism, but taking the risk of moving away from the pur-
suit of national ideals and of creating more radical grievances; or maintaining
its homogeneous principles through assimilation, taking the risk of enhancing
the separatist movements; or, finally, explicitly promoting “national diversity”
pursuing common internationalist objectives. There are, of course, the other al-
ternatives of using force to displace minorities or to eradicate them completely.
The 20th century is unfortunately the arena of a series of genocides involving
minorities.
With the emergence of a new world order and the advent of new kinds of
economy and technology, state borders and nationalist ideologies seem to be
somewhat blurred. Minorities likewise find themselves involved in a series of
transformations in which essential values rest on a global economy and a valuing
of particular forms of authenticity (cf. Heller and Labrie 2003; Heller 2003).
These transformations lead to new forms of inequality while at the same time
allowing minorities new possibilities of access at the economic level. The state
is being gradually replaced by a private economy but without the state interests
being completely compromised. On the other hand, although these remarks are
The protection of linguistic minorities: research direction 17

valid for western nation-states and even for developing states that have been
able to take advantage of these world order transformations, in other parts of the
world where state regimes are far from attaining the democratic ideals promoted
by a western approach to society, the question of minorities is quite different.
Discrimination and the enactment of genocide on the basis of ethnic differences,
for example, persist. The ideologies of such a nation-state, inspired by the west,
sometimes increase their dictatorial powers, leading to a radicalization of the
state’s homogenization.
These observations on the relations between states and minorities necessarily
lead us to consider the whole question of their protection in all its complexity
and in the multiplicity of possible responses. The protection of minorities raises
several questions, which can be summarized in a formula: who protects whom,
and from what? By this, I mean that minorities demand rights and thereby de-
mand to be protected and recognized by the state. At the same time, their main
interlocutor is, and remains, the state, from which they demand protection –
and what they demand to be protected from, is generally the state itself. Further-
more, the state seeks to protect itself from the risk posed by the very existence of
minorities; one may well ask whether the protection of minorities then becomes
the protection of the state. Finally (and the observations I have brought for-
ward above emphasize this), it is essential to ask the following questions: what
protections for which minorities, in what states and when? By means of such
questioning, I wish to make it clear that the protection of minorities is a phe-
nomenon that is intimately linked to particular contexts, according to particular
needs and particular social, political and economic situations.
As I have attempted to demonstrate in the two preceding sections, the call
for linguistic minority protection not only has a bearing on the question of
language, but is also fundamentally included in the processes of minorization.
In this sense, the understanding of the protection of linguistic minorities cannot
avoid these social and political components, nor can it ignore its ideological as
well as historic complexity. In fact, I consider that the existence of minorities and
their protection only make sense in the logic of the nation-state. Accordingly, any
study of them is completely dependent on an interrogation, not only of minorities
and language, but also of the relations between linguistic minorities and states,
taking into account that the discourses emanating from minority groups as well
as those of majority groups are essentially conditioned by ideological processes.
These reflections are all the more important if they are considered in connec-
tion with an international protection of minorities which, in a particular manner
as we shall see, seeks to bring about the most general and universal protection
possible – in that it would have to respond to the needs of minorities all over the
world – while still safeguarding the interests of the states, which will themselves
18 The protection of linguistic minorities as a field of inquiry

design this protection and be required to adhere to it. The international dimen-
sion of the minority question – at least within the framework of the institution
concerned here – in no way annuls the position of the nation-state. On the con-
trary, it contributes to the generalization of the nation-state as a form of good
governance (this will be all the more obvious with the gaining of independence
of colonized countries), to which all countries should aspire. On the basis of
these observations, it seems necessary to claim an approach to the protection of
minorities from a critical sociolinguistic perspective.

1.2.3. Towards a critical and historically situated sociolinguistics


of minority protection
“Critical” sociolinguistics seeks to understand the interests subjacent to the so-
cial construction of minorities and language. In this sense and as Heller (2002a)
emphasizes, this sociolinguistics “questions the way we use ideologies, language
practices and language ideologies in order to advance interests by means of the
construction of social categorisation and regulation of access to the produc-
tion and distribution of resources” (p. 184). Hence, this approach will consider
minorities and language in all the complexity of the networks and social rela-
tions in which they exist, and will reveal the reasons that cause particular actors
to produce particular discourses on minorities, majorities, language, religion,
ethnicity, etc. It will, above all, approach language issues from the angle of
their historically situated discursive production. Language and minorities will
therefore be envisaged here not in a correlative connection, but rather in the
general context of social (for an overview of the possible bases of social and
sociolinguistic theory, cf. Coupland, Sarangi and Candlin 2001) and historical
(cf. Seriot 2004) theory, which principally seek to explain certain phenomena
without reducing language to an object.
Studying the protection of linguistic minorities therefore presupposes that
these different parameters are taken into account and seeks to understand the
interests that are subjacent to action, discourse and the production of knowledge
within a given context and according to specific places. But what is particular
about the approach that I am using here is that it also adheres to the necessity
of thinking about the discourses of linguistic minority protection from the per-
spective of their place in history. I do not intend to say what these discourses
are, but rather to describe how discourses on minority protection emerge and are
transformed in the course of time, according to state and institutional ideologi-
cal movements. This study does not, therefore, directly concern the current state
of discourses on minority protection, but represents the opinion that historical
development and diachronic institutional creation bring out the complexity of
The protection of linguistic minorities: research direction 19

minority protection issues, while at the same time providing a particular reading
grid for current questions. It is my belief that an understanding of the interests
that underlie these discourses therefore presupposes a critical and necessarily
historicized approach.
The above remarks establish this study ontologically and epistemologically.
I shall now attempt to specify the particular context of my investigation, in order
to make the relevance of the field, as well as the possible benefits of studying it,
more explicit.

1.3. Why study linguistic minorities within the United Nations?

While the question of linguistic minorities and their protection has generally
been considered within state institutions, I have chosen, in this study, to place
the object of investigation within the setting of an international institution: the
United Nations. This choice requires an explanation that ought to reveal the
purpose of having such an organization as the field of investigation, as well as
the possible contributions of this undertaking. This is the main objective of this
section.

1.3.1. An international institution


As we shall later see in more detail (see Chapter 2), the existence of international
institutions is a fairly recent phenomenon in the history of humanity. They have
emerged in response to a rapid economic and technological evolution, and are
structured in accordance with concomitant social and political institutions (Abi-
Saab 1981). They are the result of movements that began to emerge from the
end of the 19th century onwards: the development of international conferences
and the creation of international unions to produce a network of co-operation.
These movements led to the increasingly elaborated constitution of international
administrative systems, allowing a proliferation of multinational treaties and
internationally regulated activities. Moreover, these movements appeared for
reasons that go beyond the simple regulatory structuring of state relations, being
in fact woven into a tapestry of relations that allows for the construction of both
political and economic agreements.
The United Nations, as such, is inscribed in the rupture with the League of
Nations. The latter was created following the First World War and was connected
to the Peace Treaty with Germany. The founders of the League of Nations essen-
tially sought to resolve international problems in the form of bi- or multilateral
treaties. Its failure, enshrined by the Second World War, highlighted the gaps
in this kind of institution. The international catastrophe that caused its failure,
20 The protection of linguistic minorities as a field of inquiry

however, reiterated the necessity of a new international order to maintain peace


and security. It was in terms of these dynamics that the United Nations was
created. We shall see that, while the United Nations’ objectives are most com-
mendable, from its very inception it has been involved in a mainly national logic.
States that created the United Nations are nation-states; the quest for peace and
democracy is attached to the western model of the state. The United Nations
does not, therefore, constitute a supra-national institution, but rather a conclave
of states, emphasizing the principle of state sovereignty as the necessary condi-
tion of its existence. In the course of its history, the United Nations has known
moments of glory and of darkness, has been strongly criticized, praised or used
for political ends. The United Nations remains a place where alliances among
nations are made and broken, where ideological debates reside at the heart of
decisions, and where states legitimize their own practices and condemn the
practices of others. Above all, this institution has always been, and still is, an
inter-national institution.

1.3.2. The United Nations: a unique terrain of its kind


Various elements of the United Nations make this organization an “exceptional”
terrain that allows various aspects of the protection of linguistic minorities to
be brought to light.
The first characteristic of this institution is, without doubt, its universality,
determined from its foundation by the presence of both the United States and the
Soviet Union (contrary to the League of Nations, of which the United States –
for various reasons – had refused to be a member). The number of member
states has increased markedly over time. Every state wants to become a mem-
ber of the UN, and none of them has withdrawn its membership. The United
Nations has therefore become a unique world forum, with an infrastructure that
regulates international relations. The universality in the composition of states
is reflected in the universality of the general principles prevalent in the United
Nations. Membership of the United Nations presupposes, on the part of states,
the recognition of treaties in operation and, more fundamentally, the acknowl-
edgement of the United Nations Charter. The success of this institution lies in its
rallying around principles that are considered to be “good” for humanity, which
are continually legitimized and reinforced by the high demand for membership.
Moreover, universal human rights have proved to be a fundamental link since
the beginning of 1945 when, during the San Francisco Conference, the necessity
of giving this new institution the means of taking up the protection of human
rights was raised and, with this, the means of setting international standards for
rights and fundamental freedoms.
The protection of linguistic minorities: research direction 21

Another characteristic of the United Nations is its wide range of activities.


The United Nations is concerned with all areas of human activity: social, eco-
nomic, political, cultural and technological. Emphasis has often been placed on
the economic and social level, leading to actions that ensure protection from
tensions that could pose a threat to peace. These different activities, despite
their diversity, are therefore part of the constitution of central objectives af-
firmed and re-affirmed by the institution. The actions of the United Nations are
totally determined by these objectives. Furthermore, it is here that structures
for the production of knowledge are created – a production that is closely con-
nected to the entire UN machinery and dependent on diverse interests. It is also
a production of knowledge with the objective of action, which gives rise to a
series of reflections about the relationship between knowledge and action on the
international level.
The United Nations can be seen as a place where world tensions are mirrored
within the institution itself. This leads us to another characteristic of the United
Nations: its dimension of conflict (cf. Brucan 1981). The reproduction of world
conflicts may be considered as a microcosm of international relations, but this
microcosm is situated within an ordered and determined place. Nonetheless it
is still the case that all forms of debate must be understood in terms of the
distribution of power, in which displays of strength emerge and inequalities are
reproduced.
Finally, the United Nations appeared at a key moment in international re-
lations: the height of nationalism. The United Nations would witness and con-
tribute to de-colonization; would be the theatre for the confrontations connected
with the Cold War; would witness the transformations related to the dismem-
berment of the Eastern block and communist ideology; while also seeing new
ethnic conflicts, the move to globalization and fluctuations in alliances between
states according to political interests. In this sense, the United Nations is not
only the place where conflicts are reproduced, but is also witness to, and an
agent of, change in the world order.
These dimensions, which appear to characterize the United Nations, can
be supported by the general framework in which the protection of linguistic
minorities is dealt with. The universal principles, the “human” dimensions of
activities and the mission to keep the peace, as well as the fact that the United
Nations is a microcosm of world conflicts and witness to the history of the second
half of the twentieth century, immediately place the means of minority protection
within a frame situated in philosophical principles, in actions, conflicts and a
history. It is in this sense that I consider the United Nations to be a unique terrain
of its kind, which both offers the analyst the possibility of understanding different
state maneuvering as well as providing the researcher with a reading grid for
22 The protection of linguistic minorities as a field of inquiry

international issues of protecting of minorities. In fact, the United Nations can


be seen as a window opening onto the ideological plurality of the conceptions
of minorities and the complexity involved in their protection.

1.3.3. The United Nations: a central object of investigation


Apart from the fact that the United Nations is a unique terrain, I consider that it
is a central object of investigation in the quest to understand the complex issues
of minority protection.
Indeed – as we have seen in the context of research on the protection of
languages – current discourses seek to place the defense of languages under
the aegis of universal rights and human rights. The United Nations is often
considered as a necessary interlocutor with regard to these proceedings. Even
though the United Nations is criticized for its inaction and lack of consideration
with regard to language, it is nonetheless one of the unique world organizations
where human rights are envisaged. In this regard, the United Nations is the
ultimate symbol of these rights and, in spite of criticism, it is the legitimate
setting of possible action.
Today, it is possible to observe a displacement of the discourses on minori-
ties, language and multilingualism – from exclusively national to international
spaces, NGO and private foundations (cf. Duchêne and Heller 2007; Muehlman
and Duchêne 2007). This shift is concomitant with the fragility of territorial
borders and various processes of globalization without, however, leading to the
disappearance of the nationalist paradigm. Instead, it emphasizes the address of
discourses on the international rather than strictly local level. The United Na-
tions is an integral part of this process; the nature of its institutions, of its creation
and of its history offer the possibility of understanding how international dy-
namics allow the expression of new forms of discourse, while still maintaining
a particular conceptual continuity.
Lastly, from its inception the United Nations has been, in effect, a producer
of discourses on minorities as we shall see in the course of this work. Within
its institutional logic, therefore, the United Nations elaborates standards in the
form of international instruments in the matter of minority rights.
These standards, although not always effective, bring about a particular man-
ner of thinking about linguistic minorities that has consequences at different
levels. Like all international law, these measures of protection elaborate grand
principles, conceived and adhered to by states. The existence of these measures
symbolically allows states to officially prove their commitment to world causes
through the ratification of these instruments and, in this regard, they are obliged
to demonstrate the intention to enact the rights to which they have adhered.
Conceptual framework 23

Furthermore, insofar as these instruments are intended to be standards, they


are often used as the standard for state constitutional modifications. At the same
time, the intended recipients of these rights are able to invoke them – even though
in numerous cases there are no effective sanctions available – when these have
been flouted. Accordingly and apart from how well they work, these instruments
can be a means of seeing how particular problems are envisaged, just as they
are the possible conditions of all international actions regarding the protection
of minorities.
For these reasons, I consider that the United Nations constitutes a central
object of investigation, in view of the current understanding of the means of
linguistic minority protection. As mentioned above, this work will not seek to
explain the discourses as they are produced today but, through the history and
genealogy of discourses on the protection of minorities within the institution,
rather contribute to an understanding of the present emergence of discourses of
protection at an international level. Furthermore, by taking into consideration
nationalist, international and institutional dimensions, I shall seek to understand
the place occupied by minorities and their protection within the United Nations.
By studying this terrain, it is possible to take up the invitation made by Philips
(1998) “to think more about the extent to which nation-imagining language
ideologies specific to particular institutions are also shared across institutions
and nations” (p. 224).
The general perspectives outlined here – that is, a foundation in a critical
sociology of language, an understanding of minorities linked to the ideologies of
the nation-states, as well as of the international dimension that their protection
is gradually assuming – infer a particular conceptual framework as well as a
collection of data, which I shall outline below. I am committed to understanding,
by researching its historicity and conditions of emergence, the construction of
minorities within the United Nations.

2. Conceptual framework
As previously indicated, this work is designed around different key notions that
I propose to clarify, thus giving an account of the framework of this study. To be
more precise, I shall reveal here the conceptual framework that arises from and
contributes to the ontological and epistemological positioning developed above.
In order to do so, I shall retain three dimensions that seem essential and that
constitute my reading grid of the object of investigation. Firstly, I shall consider
the importance of the production of knowledge as intrinsically linked to action,
as fundamentally constrained and as incidental. I then intend to briefly develop
24 The protection of linguistic minorities as a field of inquiry

the notion of ideology, as it will be used in this study: that is, as a complex field
of ideas about language and about minorities in relation to political, economic
and institutional interests. Finally, I shall devote the last axis on the discourses
that form the material relevant to my analysis, as well as a praxeological axis
that is particular to the institution. For the sake of this exposition, these three
notions will be considered separately but, as I shall demonstrate in the course
of this text, they should be understood as parts of a whole and as inter-related.
In the presentation of this conceptual framework, I shall also endeavor to
demonstrate the reflective aspect involved, and shall then emphasize the conse-
quences of the production of knowledge, the necessarily ideological component
of my reading and the existence of a discourse that is mine and, therefore, essen-
tially subjective. Finally, in the synthesis, I shall return to a transversal aspect
in the establishment of this conceptual framework: that is, the historicity of the
production of knowledge, of ideologies and of discursive material.

2.1. Production of knowledge

Seeing the production of knowledge as an element of the conceptual frame


presupposes that this production constitutes an issue for the institutional field
envisaged here. In brief, I consider that the production of knowledge is intrin-
sically connected to the needs of the institution, as well as constituting a form
of action and giving rise to the linguistic minority object. This knowledge is
not envisaged de facto as a fixed and stable object, but rather as the result of
a complex elaboration that brings about various parameters, which influence
its presence. We know this – and, in this sense, studies in the sociology of
science (cf. Latour 1989) as well as those emerging from the micro-sociology
of ethno-methodological obedience (for example, Mondada 2000, 2001, 2004)
have made a great contribution to bringing this aspect to light. The production of
knowledge obeys rules intended to fix and crystallize the object but which, at the
same time, are also situated within a process of the negotiation and localization
of meaning.
The production of knowledge is fundamentally institutional insofar as it com-
plies with a series of constraints that allow it to exist while also limiting it. In this
way, the interest in the institutional dimension of the production of knowledge is
closely related to Foucault’s work. It is primarily from the position of history as
a discipline that Foucault (1969 [1972]), in his work on L’Archéologie du savoir
[“The Archaeology of Knowledge”], contends that approaching a question of
history or even a particular theme should not be considered from the perspec-
tive of a linear succession of events alone. On the contrary, the most important
Conceptual framework 25

thing is how a particular notion is constituted as an institutional object. Thus


madness, to refer to one of his earlier works (Foucault 1967), does not exist in
itself: any description of the history of madness should have the primary aim of
explaining how it becomes important within a given institution. The analyst’s
work is therefore not only to point out the coherent systems that compose the
history of a notion, but also to indicate the ruptures, the cuts and the ties.
Foucault thus distances himself from the classical structuralist movement
dominant at that time in the field of the human sciences. Structure only makes
sense in and through its ruptures. The historical dimension of his study lies in
observing the variabilities present in the discontinuity of linearity. Basically,
the human sciences are made possible by a frame of knowledge that they them-
selves set up – a frame that categorizes, linearizes but also creates a regime of
discourse of the order of truth. In the first volume of his Histoire de la sexualité
(1976), Foucault follows his reasoning in emphasizing the fact that a diversity
of places for the production of knowledge exists and that, behind the production
of knowledge, the obvious workings of power can be seen. No knowledge can
occur without power. Knowledge is the manifest result of power, and power is
omnipresent, thus undercutting the idea that power issues are only situated in
the sphere of politics.
As such, the production of knowing/expert discourse on linguistic minori-
ties is not exempt from the machinery of power. Heller (1999b) shows that
the knowledge produced in the field of Quebecois sociolinguistics is included
within a production of legitimized knowledge, according to political positions.2
Likewise, for Jaffe (1999), the production of knowledge of sociolinguists of the
Corsican language is included within an activist movement, and the knowledge
that they produce is constructed within the logic of resistance or of power, being
situated either in the production of the dominant discourse or in the evident re-
jection of this dominant discourse. The production of knowledge with regard to
questions of language, therefore, arises from various interests, always anchored
in a dynamics of the relation of strength or domination. In this regard, Hutton
(1999) shows how the use of linguistic theories – or, to be more precise, the
choice of particular linguistic theories – contributes to a legitimization of polit-
ical positions in line with Nazi ideology and with the aim of supporting racial
theories. Basically, the knowledge that is produced is never neutral: it is biased.
Knowledge is conditioned by a series of interpretations of facts according to
constraints and to a particular ideological framework.
If the production of knowledge is important here, it is not only because
knowledge creates and gives form to certain objects, but also because knowledge
is consequential. What I mean by this is that the knowledge that is produced has
consequences, that it has an influence on the construction of future knowledge
26 The protection of linguistic minorities as a field of inquiry

and that it provides the context for the interpretation of action, as well as allowing
this interpretation.
Therefore, knowledge is action, just as it determines action. It is essentially
in these two dimensions of the production of knowledge that I shall seek to
understand the role played by the institution in the construction of linguistic
minorities. I shall maintain the following points:
1. The production of knowledge is not neutral – it is institutionally determined.
2. The production of knowledge is action, just as it determines future actions.
Thus, it is only in and through the interrogation of knowledge (in retracing its
“archaeology” in Foucault’s sense of the word) that one can engage in a critical
undertaking. Focusing on an institution like the United Nations does not mean
examining what linguistic minorities actually are (just as it is not the medical
explanation of what madness is that matters); what matters, rather, is explaining
how linguistic minorities emerge and are constructed as an institutional object.
Similarly, it is necessary to interrogate the ways in which knowledge is con-
structed and to see how this knowledge is established as a means of power.
This vision of things therefore also reflects a questioning of the knowledge pro-
duced in the academic field and, indirectly, of the knowledge produced in the
framework of this work itself.
Indeed, the knowledge I am producing here is determined by various param-
eters: firstly, my personal “belief” that leads me to take up a particular position;
the academic, institutional framework that allows this work to exist while setting
out the rules for its existence; and, lastly, the limitations inherent to this produc-
tion that are able to give only a very partial view of things. In fact, this production
of knowledge assumes a fundamentally subjective, biased and ideological tint.

2.2. Ideologies

The importance of the production of knowledge in the context of this work


has brought to light the consequential and constrained character of knowledge
itself. At the same time, an established knowledge exists in relationship with
the existence of ideologies, just as the action resulting from this knowledge is
woven into a mesh of conceptions about the world.
To define ideology is a task of the most complex kind; the myriad possible
fields of meaning that this term assumes testify to its difficulty. I therefore in-
tend to give meaning to this term as I use it, without entering into a debate on
terminology that seems to me to be futile at the very least. Following the work
of Berger and Luckman (1967), I consider ideology to be a social construction
that has as its object the legitimization of society’s institutions. Ideologies are,
Conceptual framework 27

moreover, the result of constructions of power relations that also allow the le-
gitimization of political actions, even though constructed on the basis of the
interests and interpretations of a particular kind of reality. I thus put forward
Moshe Zuckermann’s (1999) definition, which sums up, as far as I am con-
cerned, the various elements of ideology as it is envisaged in the context of this
work:
Grundsätzlich sei hier angemerkt, daß Ideologie nicht als eine personenbezogene
Idiosynkratie zu begreifen ist, sondern eben als das geistig-kulturelle “Abbild” des
real Bestehenden, welches dies Bestehende allerdings mitformt und strukturiert
und sich dabei in mannigfaltigen, mit einander streitenden und konkurrierenden
individuellen Äußerungen zu manifestieren pflegt. Ideologie liegt also ein Allge-
meines zugrunde: sie ergibt sich aus komplexen Diskurspraktiken, die ihrerseits
von im Werden begriffenen oder bereits bestehenden Macht-, Herrschafts- und
Gewaltstrukturen ökonomischer, politischer oder auch kultureller Natur herrüh-
ren. Somit erfüllt Ideologie zum einen eine “positive” kittende, zum anderen
eine das Bestehende in seinen teils verdeckten, teils offenen Machtverhältnissen
rechtfertigende Funktion. (Zuckermann 1999: 23)
[Basically it may be said that ideology should not be understood as an individual-
related idiosyncrasy but rather as the mental-cultural “image” of what really
exists. However ideology shapes and structures what exists and manifests itself
in diverse individual utterances which dispute and compete with each other. Thus,
ideology is based on a general notion: It arises from complex discourse practices
which on their part stem from evolving or existing structures of economic, polit-
ical or cultural power, dominance and violence. Consequently, ideology fulfils a
“positive” cementing function as well as a function that legitimates what exists
with its partly covert, partly overt power relations.]
This conception of ideology brings various elements to light:
– Ideology is representational and collective.
– Ideology is structuring and structured.
– Ideology is discursive.
– Ideology brings out interests arising from relations of power, of domination
and of economic and political issues.
It is in terms of these elements that I understand the ideologies of institutions,
states and also of language.
By “institutional ideology”, I mean – in the context of this work and in line
with the definition above – the collection of beliefs that makes the institution
function as an entity. These beliefs are constructed according to various basic
principles and according to an international and bureaucratic logic. They consti-
tute a kind of kernel of common thinking around which various conceptions of
the institution are elaborated, organized and enacted. The collective component
28 The protection of linguistic minorities as a field of inquiry

of institutional ideology is also evident in the structures, actions and ideas that
were at the origin of its creation and evolution. They are not necessarily stable
and immutable: rather, they are stabilized at a given moment and de-stabilized
at others, to be later re-stabilized. Generally, these processes refer to praxeolog-
ical interests, in that these ideologies exist with a view to legitimizing action or
inaction. At the same time, as institutional ideologies, they must nevertheless
incorporate the essential component of the institution concerned, i.e. states and
their ideologies.
By “state ideologies”, I understand the group of beliefs that a given state
promotes in order to legitimize its actions within its own territory. These ideolo-
gies basically have a bearing on the role that the state assigns itself and on the
vision of the society that it seeks to promulgate. State ideologies should first of
all be considered at the level of a state’s idea of the “nation”, but also of its idea
of internationalism. To speak of state ideologies likewise leads to an emphasis
on ideology as a place where power is expressed.
Finally, I refer to the concept of the ideologies of language, widely debated in
sociolinguistics and linguistic anthropology (e.g. Billig 1995; Blommaert 1999,
2005; Jaffe 1999; Heller 1999a, 2002b; Silverstein 1998; Woolard 1998). For the
purposes of this work, I shall consider that the ideologies of language affect dif-
ferent levels: 1) the discursive ideologies that demonstrate beliefs about the na-
ture, impact, structuring and importance of discourses within the institution and
2) the ideologies of language and languages in the sense of how these form the
object of a group of ideas about what language is and what it is not. Furthermore,
the ideologies of language will be connected with institutional and state ideolo-
gies, but also with the ramifications that they have for the notion of minorities.
I emphasize the concept of ideology because I consider that, through this
prism, it is possible to focus on the interests at play in the production of knowl-
edge and of discourse. I also consider that ideologies and their interrogation in
this regard permit an anchoring in a political and historical dimension, as well
as a continual search to understand the reasons that compel particular agents to
act and to speak in a certain manner. Ideology is therefore a construction; it is
action; it is power; but it is also discourse.

2.3. Discourse

I shall now explain my conception of discourse and how this refers to a concep-
tualization of the relations between discourse, the institution and its production
of knowledge, and also between discourse and ideologies. I intend to express my
belief about what discourse is, and why a discursive approach seems necessary
in order to examine the research questions broached in this work.
Conceptual framework 29

In this, I place myself in a field of reflection claiming a post-structuralist


approach, supported by the work of Foucault in particular. In Foucault’s work,
the approach to discourse is primarily based on a critique of the structuralist ap-
proach as it was envisaged not only in linguistics but within the human sciences
as a whole. In this regard, I refer to a quotation from Foucault (1969 [1972])
that he himself presented as being programmatic of his scientific undertaking:
I would like to show that ‘discourses’, in the form in which they can be heard or
read, are not, as one might expect, a mere intersection of things and words: an
obscure web of things, and a manifest, visible, coloured chain of words; I would
like to show that discourse is not a slender surface of contact, or confrontation,
between a reality and a language (langue), the intrication of a lexicon and an ex-
perience; I would like to show with precise examples that in analysing discourses
themselves, one sees the loosening of the embrace, apparently so tight, of words
and things, and the emergence of a group of rules proper to discursive practice.
(p. 49)

This quotation offers a position with regard to discourse which cuts across and
clearly breaks away from the structuralist approach that emphasizes the relation
between the signifier and the signified in the form of an indissoluble interface. As
the pivot of the structuralist approach, the sign as observable fact represents the
incarnation of the relation between words and things. By placing the debate at the
level of discourse as the result of work on the object (work that can only take place
within an understanding of its historical conditions and factors of emergence),
rather than on the strict analysis of linguistic structuring, Foucault exploded the
signifier–signified relation and the notion of signification itself. In fact, there is
no rejection of the existence of meaning, but a refusal to conceive of signification
as an intangible, fixed object, in favor of a critical conception that could be
paraphrased as follows: signification, yes – but for whom, for what, and when?
More specifically, Foucault clearly shows the constraints that are involved in
and through discourse. He indicates that what is said is not the result of chance,
or coincidental, but rather the product of determinations. Because of these, dis-
course has a vital importance in our societies, no matter what form it takes. The
work that is proposed is not simply a description of discursive organization, but
is rather a work of explication. This program breaks the classical perception – in
linguistics – of the analytical units. These units are only of interest when one is
capable of showing why they are there, and why these and not others. This is far
from the notion of a paradigm and interchangeability of signs, far from the idea of
arbitrariness – this is singularity: “we must grasp the statement in the exact speci-
ficity of its occurrence; determine its conditions of existence, fix at least its limits,
establish its correlations with other statements that may be connected with it,
and show what other forms of statement it excludes” (Foucault 1969 [1972]: 28).
30 The protection of linguistic minorities as a field of inquiry

This conception of discourse leads us to bring up another aspect of the discur-


sive approach used here: its materiality. Indeed, if discourse is not the reflection
of reality, by the same token it is not the reflection of the mind either – two fun-
damental ruptures with the traditional conceptions of discourse demonstrated
by Martin Rojo and Pujol (2000). Discourse is matter, and the materiality of
these discourses is the result of a constrained and biased process. One can then
consider that discourse is not only the object of analysis, but also the trace of a
social practice that is institutionally, historically and ideologically situated. The
conditions for the emergence of discourse are therefore anchored in a series of
constraints and possibilities.
Furthermore, discourses are situated in relation to other discourses, to which
they respond.There is therefore a circularity and inter-textuality (Bakhtine 1970)
that take into account the impossibility of isolating the object and constraining
it within an autonomous explicative context. Discourses are the object of a
production by agents; they are used by others and assume a particular status and
a kind of authority according to their uses.
The manner in which I shall approach the questions of this study emphasizes
discourse as the place of emergence, crystallization and materialization of the
positioning of actors and institutions. Indeed, discourses form an important part
of the institution’s functioning: they are omnipresent, articulated among them-
selves, but they also legitimize. They constitute the place of existence within and
beyond the institution, and the object of a very strong institutional control in the
form, organization of content and hierarchical ordering of the documents them-
selves. Generally, it can be said that all that is observable materializes in written
documents, which retroactively account for all of the institution’s processes of
legitimization. I am therefore seeking to understand the production of discourses
connected with the institution that produces them, with the notion of power that
is associated with it, and with the notion of the production of knowledge.
I consider that discourses are of primary importance in direct connection
with my research questions:
1. The action of the United Nations is fundamentally of a discursive nature;
2. Discourses allow entry into the complexity of ideological positions;
3. Discourses constitute an interface between historical-institutional constraints
and the production of a particular knowledge of linguistic minorities.
In this regard, discourses will be of interest principally in their legitimizing,
official and historic dimensions. I do not seeking to know the hidden side of
discourses, which by definition seems inaccessible, but rather to understand the
reasons for their existence. I shall do so by considering that the form they assume
is not neutral, by emphasizing the bonds that link them and by constantly seeking
to place them within the interests that lead to their construction and use.
Collection of data and analytical frame 31

2.4. The historicity of discourses, ideologies and the production of knowledge

I now come to what I consider to be the “cement” of my conceptual, analytical


and interpretative undertaking, i.e. the notion of “historicity”. Indeed, if dis-
courses, ideologies and the production of knowledge are the object of several
constraints and are anchored in a collection of various interests, they only make
sense in and through historicity. In my opinion, historicity differs from history
as a discipline in the sense that it presupposes a dynamic element of process.
Historicity is a historical super-structure as well as a micro-structure that man-
ifests itself within a given context. Historicity allows us to think in terms of
archaeology as well as genealogy; it invites us to search for traceability which
in turn allows us to understand.
In this sense, I shall systematically seek to show how discourses on minorities
overlap one another chronologically, how ideologies are included in historical
developments, and how the production of knowledge is dependent on the histor-
ical conditions that allow them to emerge. This continual search for historicity
will lead me to think of the collection and analysis of data in a dynamic manner,
thus revealing the complexity of discourses and ideologies, as well as the com-
plexity of knowledge. Historicity thus allows us to make links while seeking to
understand in a specific way.

3. Collection of data and analytical frame

The conceptual frame and the problem outlined above presuppose a collection
of data that would allow an understanding of the complexity of the phenomenon
envisaged here. I have chosen to proceed with research based on texts – on official
documents – in order to understand the place of linguistic minorities in their
historicity. In order to succeed in locating the pertinent documents constituting
the basis of this research, several phases were necessary as I will retrace in what
follows.

3.1. An immersion in UNO and an apprehension of the field

When I decided to explore more deeply the question of the place of the United
Nations in the protection of minorities, I set out to understand the institutional
functions, history and procedures in the production of knowledge. I had been
aware, from my preliminary investigations, that linguistic minorities were pri-
marily dealt with in the context of spaces dealing with human rights. I then
naturally oriented my field of investigation in this direction.
32 The protection of linguistic minorities as a field of inquiry

In order to do so, I embarked upon a postgraduate study, organized by an


NGO that had UN accreditation, involving a six-month period of online courses
as well as courses within the United Nations itself, during the summer when
sessions of various committees and commissions relating to human rights were
conducted. This program allowed me not only to acquire knowledge about the
institution, but also made me immediately aware of its limitations. Hence it
greatly contributed to the preparation of my field of observation.

3.1.1. A critical look at the institution


The procedure adopted by the postgraduate program I undertook consisted of
seminars given by specialists in international law as well as by agents of the
institution (experts, members of the General Secretariat, etc.). That particular
year, the courses were given in French and the participants came from the var-
ious “francophone” regions in the world, mainly from Africa and Asia. As the
days went by, while we were learning more and more about the workings of the
institution, a particular tension became noticeable. Several participants thought
that what they were hearing was hollow and rather unsatisfactory. The ideals,
which we initially thought were adhered to, were mishandled by the impasses
constituted by the institution. Listening to my colleagues, I began to perceive
significant difficulties in thinking uniformly about the essential principles of
human rights and the priorities of the institution. The slowness and bureaucratic
restrictions seemed aberrant for many participants from developing countries,
and elicited reflections on universal values but more often than not on the in-
stitution’s lack of effectiveness. In addition, many of these participants had the
impression that their grievances were going unheard.
In fact, what I recall of these meetings is above all the heterogeneity of not
only the interpretation of human rights but also the expectations of the subject. In
a way, the discussions that occurred during this course of study made me aware
of certain paradoxes inherent in the institutional structure, while emphasizing
the multiplicity of ideological positions – including mine, of course.

3.1.2. An in vivo vision of UNO debates


The second benefit of this program was an immersion within the institution, thus
giving me the opportunity to pace the corridors, to attend various Commission
meetings and, most importantly, sessions of the Sub-Commission on Prevention
of Discrimination and Protection of Minorities. Indeed, we were able to attend
these sessions in the available areas allowed by the course. I was immediately
fascinated by the sessions of the Sub-Commission as they dealt with the ques-
tions that had motivated both the course and the present research. I therefore
Collection of data and analytical frame 33

engaged in the task of observation, taking notes on the field, observing the way
that the sessions unfolded, who spoke, the various classifications, etc.
During these observations of the inner workings of the institution, I be-
came aware of the importance of the power relations, of the hierarchical strat-
ifications, of the speakers in the debates, as well as of the type of discourse.
With the approval of the organizing members of the course, I obtained per-
mission to attend the Sub-Commission’s sessions each year and, gradually, I
attained an understanding of the functions, institutional issues and constraints
involved.
This immersion in the UNO was the first phase of my work and collection
of data: the phase that allowed me to progress in a place that is known to be
labyrinthine at the very least. The observations that I was able to make over the
years are an integral part of this work, even if they merely appear filigree. Thanks
to these ethnographic observations, I acquired knowledge that consequently
directed my choice of data, enabling me to choose – among the vast array of
documents – those which seemed to be most pertinent. It also enabled me to give
these documents a more embodied or incarnated dimension. In this sense the
analytical work of Chapters 2 and 3 attempts to incorporate these observations.
Finally, the course of study also allowed me to concentrate my collection of
data according to particular, precisely located spaces (cf. Chapter 3) that were
meaningful in terms of the questions I proposed.

3.2. Documentary research: the process of collecting historiographic data

3.2.1. Collection of data by trial and error


While I was beginning to gradually understand the mechanisms of institutional
functioning, another challenge awaited me: the challenge of moving into in
the documentary labyrinth of the United Nations. My intention had been to
conduct research, founded on work about discourse, by seeking to establish a
historiography. What interested me, moreover, were the official discourses, those
that somehow provided a window onto the United Nations. The documentary
part of my research would thus prove to be essential.
The general headquarters of the United Nations in Geneva has a library that
contains a paper version of every official document of the United Nations (sum-
mary records, reports, resolutions, etc.). Most documents from 1993 onwards
are also accessible by means of a computer program. Thus, when I was investi-
gating the documentary possibilities, my first option was to carry out searches
via key-words in the bank of computerized data. I was seeking to give a direction
to my research and, because of this, the only preferred axis at the time was the
34 The protection of linguistic minorities as a field of inquiry

axis of “linguistic minorities”. I then found myself with a wide array of docu-
ments, all very different from one another, but with the advantage of obliging
me to immerse myself in this textual diversity. Reading them allowed me to un-
derstand that these documents, if taken in isolation, had little chance of making
sense – that they were, in effect, fundamentally characterized by intertextuality.
They quoted other documents and also had, as an object of discourse, documents
that were only mentioned in quotations. I also ascertained that they were of a
very different textual nature and that they could therefore not be apprehended
homogeneously at an analytical level.
I therefore proceeded in this work by trial and error, trying – a little desper-
ately at times – to find some coherence in this extremely varied conglomeration
of text. In the course of my search for coherence, I nonetheless noticed that
certain spaces were more important than others in the production of documents,
and that they corresponded to spaces I had already located or was in the pro-
cess of locating. My tentative effort therefore allowed me to bring to light, in
default of coherence, a convergence between particular discursive places and
the documents that I had already located.
Finally, this procedure made me familiar with the organization of paper
documents, the significance of quotations and their location. During this stage
of my research, I was the recipient of generous, patient and professional advice
from the librarians of the United Nations. Their help, right up until recently, has
been very valuable and their presence often prevented me from sinking under
the avalanche of information.
Briefly, this stage of the collection of data by trial and error allowed me to:
1. understand the documentary logic of the United Nations
2. bring to light the spaces that produced pertinent documents
3. realize the intrinsically inter-textual nature of these documents
4. realize the importance of establishing a more systematic research.

3.2.2. A systematic collection of data


The first phase of my research and the discoveries I was able to make then
led to a second phase: a systematic collection of data. The different points
referred to above had in effect directed my research towards the collection of
data in connection with discursive spaces relevant to the question of linguistic
minorities. In Chapter 2, I shall discuss these spaces in more detail but, for
the purposes of this section, I wish to emphasize that the collection was made
on the basis of the documents produced by the Human Rights Commission,
the Sub-Commission on the Prevention of Discrimination and the Protection
of Minorities, the Working Group on Minorities. These three areas were in
Collection of data and analytical frame 35

hierarchical positions with regard to one another and the texts that they produced
were thereby related. Here, then, it was possible for me to extricate a coherent
line at the level of intertextuality. In spite of their diverse nature, moreover, the
documents produced by these institutional areas functioned in a similar manner,
which prevented me from getting lost in an overwhelming diversity.
I decided, first of all, to check all the reports of the Human Rights Commission
and of the Sub-Commission. These reports are documents that summarize all
the discussions and decisions that took place during the sessions. There is one
report per year, corresponding to the year of the members’ meeting. The reports
are drafted, not only for the space concerned, but also with a view to transmission
to other, higher bodies.
Starting from 1946 (the year of the first meeting of the Human Rights Com-
mission and Sub-Commission) up until 2003 (when I ended the systematic
collection of data), I gathered a body of the reports of the Human Rights Com-
mission and Sub-Commission. I noted the agenda items that explicitly dealt with
minorities and thus acquired a diachronic vision of the subjects under discussion
regarding minorities. Thereafter, I researched all the summary records of each
year in accordance with the items concerning minorities. Summary records are
detailed verbal records (cf. Chapter 3 for more specific details) of debates and
therefore permit an understanding of the discussions in a polyphonic manner.
Indeed, these documents (albeit synthetic, as they are not transcriptions but re-
formulations) record all the contributions of the participating members, making
them ideal documents for understanding the different positions, divergences and
consensus.
With regard to the Working Group on Minorities, established in 1995, collec-
tion of data began in 1996 (the date of the Group’s first report) and concluded,
within the context of this systematic collection, in 2002. There are no accessi-
ble summary records of these meetings; therefore the only documents obtained
initially were annual reports.
The examination of all these texts brought to light the existence of recurrent
themes in the debates and allowed me to ascertain the importance of particular
discursive events as areas of debate. These events are characteristic of the in-
stitutional approach to the production of knowledge as well as to action in the
matter of minority protection. It was above all through the examination of these
documents that I gradually came to focus on the discursive objects about which
I wanted to elaborate my collection of data and, by extension, my analysis.
36 The protection of linguistic minorities as a field of inquiry

3.2.3. Collection of data and making the object of study precise


These two preliminary phases led to a third: a collection of data located ac-
cording to the precision of the object of investigation. The examination of these
documents gave me a greater understanding of the functions of the different
areas, as well as of the main themes that characterized them. As stated earlier,
I wanted to demonstrate not only the place occupied by minorities, but also the
production of knowledge about them and the institutional procedures envisaged
by the United Nations in order to protect them. In doing so, I found that the
principal documents were related to the elaboration of international law texts.
Over the years, discursive spaces, in effect, produced a particular knowledge
that can be linked to these international instruments, which I consider here as
discursive events. Studying the discourses leading to the elaboration of interna-
tional instruments then allowed me to uncover a series of phenomena that seem
to be the key to understanding discourses on minorities and their protection:

1. They constitute a frame of reference for all production of knowledge, as well


as being the result of a production of knowledge.
2. The international instruments regarding minorities occur at intervals in time
and thus permit a historical approach to discourses on minorities.
3. International instruments assume an essential place in the context of the
institution and thereby permit analysis to be included in the dynamics and
ideologies of the terrain envisaged here.
4. Their construction and the final product are eminently discursive while also
seeking to be praxeological, thus permitting an analysis of discourse at the
level of form and content, but also of their workings.

These observations, which in my opinion are essential, then led me to pursue


my collection of data in regard to the precision of the object. Because of this,
they brought about a new manner of collecting documents that were relevant to
my investigations.
In order to do so, I extended the field of research to areas where decisions
are made, like the General Assembly. I included in my data working papers, res-
olutions, information arising from the General Secretariat, etc., each one being
linked to the elaboration of the international instruments under examination. Of
course, by proceeding in this way, I once again found myself confronted by the
enormous heterogeneity of discourses but, thanks to the precision of the object,
it was possible to link these documents and to show their genesis as well as the
effects they had on one another. Finally, it was possible to achieve a collection
of localized data with the intention of re-tracing a particular discursive route
over a period of time.
Collection of data and analytical frame 37

The precision of the object in itself is a limitation of the analysis that I


undertake in this work; nevertheless, it offers the possibility of focusing on
what the institution considers to be important and, therefore, on the possibility of
connecting the political and institutional mechanisms relating to the production
of discourses on minorities.

3.2.4. Synthesis of this section


If I have insisted on giving a step-by-step vision of the collection of data, it
is above all because I consider that it is not a simple task of reviewing and
evaluating. It contributes significantly to the construction of the object, while
being wholly related to the work of analysis. I have shown here that through
the various procedures of the collection of data, I have also widened my field
of understanding of the functioning of the institution, of the functioning of
discourse and, above all, of the construction of the object of analysis.
I have also chosen to present my collection of data from this perspective
because I consider that it is above all a subjective and biased undertaking; that
it is the result of a continual interpretation of the object under examination;
and that it is, because of this, the product of an insatiable quest for explication.
In this sense, my work does not in any way claim to be representative, but
rather seeks to make explicit the data on which I decided to work. These data
prove to be lacking, and sometimes disparate. Selection thus determines the
possible analyses that I shall make. Furthermore, the analytical framework that
I subsequently develop is effectively subordinate to the data, just as the data that
were collected were subordinate to the conceptual framework presented in the
preceding section.

3.3. Framework of analysis


The analyses undertaken therefore flow from the conceptual framework, just as
they depend on the available data and the selection that was made. It is now
a matter of grasping the organizational thread of the documents, the relations
between them and the historical aspects of their appearance. In order to do so,
we must turn towards fundamentally multiple approaches and refuse to only see
the data in their internal function.
The data that I am working on, moreover, are situated fundamentally in
time and space. They emerge in discursive areas that make it possible for these
discourses to be produced while, at the same time, restricting them. Furthermore,
the work on these texts must be understood as a work on dialog insofar as no text
exists in isolation. Indeed, a text is produced by someone or by several people,
for others; it responds to other texts, brings inter-textual dimensions into play
38 The protection of linguistic minorities as a field of inquiry

and finds itself necessarily articulated with contexts of emergence and with other
texts that give it a kind of coherence. The textual work here is therefore not to be
understood as a work of formal textual linguistics, but as a work on the nature,
form and contents of documents, as well as on the institutional constraints that
constitute it. It is, furthermore, a question of seeing these texts in their ideological
dimension, in the power that they have and the function they perform.
I therefore propose to apprehend the analysis of these data as follows:
1. To consider the discursive data within the constraints of their production –
how does the institution manage discourses, what importance does the insti-
tution attribute to them and how does the institution exert control over their
production?
2. To consider the discursive data in terms of their use – how are discourses
appropriated and re-appropriated, how do the UN agencies use discourses
and how do discourses articulate with one another?
3. To consider the discursive data in terms of their historical emergence – how
do discourses emerge in the course of the organization’s history, how are they
transformed historically and how do historical events influence them?
4. To consider the discursive data in their intra- and extra-textuality – what are
the various genres of discourse, and what do these genres tell us in terms of
ideology?
5. To consider the discursive data as ideologically characterized – how do dis-
courses refer to ideological conceptions, how do they give an account of
positions and interests?
6. To consider the discursive data in terms of their limitations – what is not
accessible through the data, what escapes us?
In order to give these programmatic elements further coherence, I have decided
to extract a thread of analysis that aims to take into consideration the nature of
the data, their place in the institution and their historical occurrence. Here, I
shall use three key notions: 1) discursive spaces, 2) production of discourse and
3) discursive events.
In reference to discursive space I consider that all discourse is produced in
particular spaces, in which it is meaningful (Heller 1999a) to speak – in this
instance, of “minorities”. Discursive spaces assume institutional forms. In this
context, these are organs that have been given the mandate to produce knowl-
edge about minorities. Attached to or grafted onto this institutional anchoring,
however, is the construction of a symbolic space that transcends the exclusive
borders of the relevant physical spaces, leading to the creation of a universe of
discursive meaning relating to minorities. In order to identify the pertinent dis-
cursive spaces, it is necessary to have a knowledge of institutional functioning
and, consequently, an ethnographic approach. Furthermore, this identification
Collection of data and analytical frame 39

determines and permits a delineation of discursive phenomena. “Minorities”


constitute a discursive space within the United Nations, which is, moreover,
situated within particular institutional spaces.
By “production of discourse” I mean the various constraints exerted on the
production of discourse within the institution. The data are the result of a draft-
ing process and of institutional constraints (Smith 1999; Duchêne 2004). The
constraints create the conditions of possibility for discourse while also limit-
ing their potential. They therefore effectively clarify the analytical possibilities
and limitations with regard to discourse, by situating them within the discursive
ideology of the institution. It is from this perspective that I shall endeavor to
describe the modes of discourse production which are the object of my analysis.
By “discursive events” I mean principally the existence of key moments
in history that materialize via specific documents/texts/interactions, allowing
us to historically situate the data that play a central role within the institution.
These events assume a fundamental significance for the institution insofar as
they correspond to the path of action validated by the institution. Moreover,
discursive events are not considered merely as an object, but rather as the col-
lection of processes that allow the outcome of the product, as well as permitting
a consideration of the actual existence of an event. Specifically, the events that
I shall analyze are international instruments, which effectively corresponds to
the mode of action favored by the institution.
The space, the production and the events of discourse are situated in a di-
alectic relation. In effect, the spaces of discourse determine the discursive pro-
duction. Discursive events are regulated by the rules of discourse production,
as well as emanating from localized spaces. In addition, these events permit
the creation of new spaces and new possibilities of discourse production. Fi-
nally, these three key notions are essentially included in a historicity. Discursive
spaces emerge historically at precise moments in the history of the institution.
Discourses are produced according to the development of spaces and to the ex-
istence of particular discursive events. These discursive events are the result of
a diachronic process in the framework of various discursive spaces and proceed
from a historical process in the production of discourse. The key notions thus
anchor the documents and their analysis in terms of the institution, discourse
and history.
As we can see, the analytic framework is heterogeneous, not attempting to
base itself in any particular school of discursive analysis. Furthermore, the way
in which these discourses will be analyzed essentially intends to by-pass a very
common debate in the context of research in linguistic anthropology and soci-
olinguistics: the debate that opposes macro and micro approaches. Following
Heller’s (2001) propositions, what essentially matters is not to seek to oppose
40 The protection of linguistic minorities as a field of inquiry

one of these approaches against the other, but rather to learn the way that the
object of investigation moves within the context of historical, social and po-
litical movements, seeking to grasp the object in its ideological complexity.
An analytical framework that intends to by-pass the micro–macro distinction
in this way does not take it as given – a priori – that the analysis will follow
a particular path. Rather, it will endeavor to understand the complexity of the
terrain by bringing in analyses focused on the discourses, while also seeking to
interpret these discourses in relation to the conditions of their production and to
the interests underlying their existence and form. This is the procedure that will
be used. The documents will therefore not all be treated systematically in the
same way: the treatment, instead, will have to correspond to the demands of the
argumentative thread. The documents presented will sometimes be the object of
a detailed textual analysis, and sometimes be used to illustrate particular points
of view, and political and historical perspectives.
If the objection is then raised that a heterogeneity of analysis is added to the
heterogeneity of data, it is, on the other hand, worth considering that the com-
plexity of the object cannot be well served by a monolithic approach. While there
is heterogeneity of data, it follows that there must therefore be heterogeneity of
analysis.

4. Outline

In accordance with the methodological and conceptual approach adopted here,


this work will be organized in two large sections.
The first section seeks to understand how the spaces of organizational archi-
tecture within the institution are constructed, and how the discourses produced
in these spaces are subject to the various kinds of constraints that occur in the
reproduction of institutional ideologies. The objective of the first section is three-
fold. Firstly, it is a question of critically looking at institutional discourses and
structures, in order to delineate and interrogate the possibilities of analysis with
regard to both terrain and discourse. Secondly, the terrain of investigation and
the discourses must be anchored in their historical emergence and institutional
development, in order to show how discursive practices contribute to institu-
tional ideologies, and how the institutional spaces find a kind of legitimacy in
the production of discourse. Thirdly, this section will allow an understanding of
the emergence of discourses on linguistic minorities and therefore show how
the production of knowledge about linguistic minorities is included within an
institutional ideology and within the historicity of the emergence and evolution
of the United Nations.
Outline 41

This section is divided into the chapters: Chapter 2 is concerned, on the one
hand, with the emergence and development of international institutions and, on
the other, with the internal structuring of discursive spaces within the United
Nations that are devoted to the protection of minorities. I demonstrate that the
United Nations comprises an institutional architecture, in the form of spaces,
which delineates domains of expertise as well as relations of power and signif-
icantly ordered decisions. I explain that the various spaces that are constructed
are moving in the direction of an even greater degree of specialization, but that
this degree of specialization is associated with a greater hierarchical stratifica-
tion and therefore a diminution of power. I then argue that, if it makes sense
to speak of linguistic minorities within the United Nations, this sense is deter-
mined by spatial and ideological limits: limits that are set up according to both
institutional and state interests, these being totally interrelated.
Chapter 3 focuses on discursive spaces within the institution and explores
how the documents of the United Nations belong to the functioning of the insti-
tution and its discursive spaces, in that they are regulated as well as legitimized
by them. I also demonstrate that it is via the forms and constraints of discur-
sive production that an essentialist approach to language is produced, seeking
to give discourse an objectivity and univocity as the essential gauge of its “offi-
cial” character. The argument that I put forward here deals with the fact that this
discursive ideology somehow balances the fundamentally heteroglossic charac-
ter of the discursive objects. Nonetheless, the search for precision corresponds
with the institutional ideology that seeks to set up forms of the production of
knowledge that are founded on objective and intangible facts.
The second section of this work is concerned with what I consider to be
major discursive events that permit us to understand the means of the protection
of linguistic minorities within the United Nations. These discursive events are
in fact international instruments, namely, texts of law created by the institution.
I have decided to present them in a chronological order corresponding to the
sequence of their publication. In this way, I intend to demonstrate how minorities
and the question of their protection are constructed institutionally, discursively
and ideologically over time. I am thus seeking to highlight the ruptures and
continuities in these discourses, as well as the state interests presiding in their
localization.
This section is divided into three chapters: Chapter 4 is concerned with the
first discursive event that will be the object of my investigation: the Universal
Declaration of Human Rights. This discursive event will then allow me to focus
on a fundamental dimension of the United Nations – its universality. Through
the study and analysis of the discursive construction of this document, and of
the debates on the presence or absence of an inclusion of minorities in the docu-
42 The protection of linguistic minorities as a field of inquiry

ment, I point out the tensions between the universal and the particular, on the one
hand, and capitalist and socialist state ideologies on the other. I then argue that
the question of minorities and their protection is included in discursive struggles
about divergences concerning the role of the state and contradictory interpre-
tations of the universality of human rights. Finally, this chapter demonstrates
both a fear with regard to minorities, and a search for the legitimization of ex-
isting state practices that, connected with the relations of the prevailing powers,
determine the lack of inclusion of minorities in the context of the Universal
Declaration of Human Rights.
Chapter 5 deals with a second discursive event: International Covenant on
Civil and Political Rights. Taking up the genealogical search for this document’s
construction, I demonstrate how the presence of minorities is made possible
by a renunciation of the universality in the matter and, because of this, by the
possibility for states to recognize the rights of minorities while at the same
time diminishing their bearing. I then argue that, while the renunciation of
universality, as far as minorities are concerned, is fully set in place through this
article and, through the Covenant, particularity opens the way to disengagement
or lack of commitment.
Chapter 6 constitutes the last discursive event and is concerned with the
Declaration on the Rights of Persons Belonging to National or Ethnic, Reli-
gious and Linguistic Minorities. This chapter demonstrates the ideological and
institutional continuity in the protection of minorities. Through the examination
of the conditions of possibility of its existence, as well as of the discursive con-
tents that are developed within it, I show the different maneuvers that, without
doubt, allowed this event to occur as well as fixing certain previously established
principles. I show that, while it is specialized, minority protection nonetheless
remains subordinate to state prerogatives by means of discursive manipulations.
This work as a whole will therefore demonstrate the contradictions, limits
and possibilities of the establishment of concrete measures concerning the pro-
tection of minorities; the difficulty in managing the polyphony inherent in these
questions within a restrictive context; the ideological continuities and ruptures
over the course of time; and the omnipresence of primarily state interests in
the elaboration of measures of protection. The general scope of this book – the
United Nations, its vision of the protection of linguistic minorities, the under-
lying ideologies, its limits and possibilities – will permit (at least, this is my
hope) an understanding of the complexity of the question of the protection of
minorities and its ideological issues.
Chapter 2
Discursive spaces and the protection of minorities:
historical, institutional and ideological conditions
of knowledge production

1. Introduction

In all institutions, the discourses that are produced occur in well-defined spaces:
spaces constructed over time, spaces that give meaning to discourses and allow
them to exist. These spaces are structured in conjunction with a particular in-
stitutional logic, while they themselves structure discourses and the production
of knowledge. As soon as there is structure, interests come into play behind the
structuring principles: there is categorization and the search for frameworks that
take possibilities of discursive processes and action into account. Behind the ar-
chitectural edifice, institutional ideology and unfolding power relations can be
seen. These spaces, therefore, are extremely important in terms of this study
because (1) they make discourses – in this instance, on linguistic minorities –
possible, and (2) they create and establish constraints on both discourses and
the actions that flow from them. In keeping with the critical perspective of this
book, the various interests subjacent to the establishment of the above-mentioned
structures must be brought to light. We can thus consider that knowledge is pre-
dominantly produced in the architectural logic prevailing in the relevant spaces.
In this chapter, I will therefore describe and explain the discursive spaces rel-
evant to the production of discourse on linguistic minorities within the United
Nations. Minorities are not discussed in all UN areas, but in instituted, struc-
tured and restricted spaces, in which it is permitted and sometimes necessary to
speak of them – spaces that must be considered as primarily discursive spaces.
The idea of discursive spaces should be envisaged from the perspective of two
questions: (1) why these spaces exist (what explains their existence) and (2) how
these spaces have emerged. In effect, throughout this work, there is an under-
lying idea that the investigation of how and why not only allows us to situate
discourses in time and space, but also to specify the means of producing a par-
ticular discourse in a particular space. We must also consider that discourses
give rise to spaces, as well as legitimizing and categorizing them. Therefore,
these spaces are both the product of historical developments, and a creation and
modulation by discourse. Here we see the outline of an approach to the ques-
tion, not only via historical phenomena but also via the discourses relating to
44 Discursive spaces and the protection of minorities

these phenomena. Considering that a historical perspective is fundamental to an


understanding of the construction of spaces, I have decided to focus, first of all,
on the issue of the emergence of international institutions before the creation of
the United Nations, in order to understand how the United Nations has emerged
historically as a supra-national institution and how discursive spaces have been
constructed within it. I shall therefore describe the various kinds of organiza-
tions that appeared from the end of the 19th century until the present. I shall
focus particularly on the League of Nations, given its historical proximity to
the United Nations, and the relations, at different levels, between the two. This
general institutional framework will allow us to explore the systems of minority
protection in general and of linguistic minorities in particular, in the context of
emerging international organizations. What matters most here is to understand
the way in which the protection of linguistic minorities was envisaged within
the spaces that preceded the United Nations. The second section will show how
the United Nations is the outcome of the historical development presented in
the previous section. It will also point out the historical reasons for its emer-
gence, as well as its initial mode of structure. Finally, the third section will focus
on the progressive construction, within the United Nations, of institutional and
discursive spaces relating to minorities. These spaces, in the course of time and
according to the evolution of debates, will move in the direction of an increas-
ing specialization of their roles and functions with regard to minorities. In this
section, I shall show how these spaces have emerged, and how they have been
constructed and modified. This chapter will focus on responding to the question
of the situation of linguistic minorities situated in UN spaces, and on demon-
strating the interests underlying the structuring of spaces relevant to linguistic
minorities. I shall argue that these spaces have the primary function of control-
ling the knowledge produced within them in order to protect the interests of the
presiding agents – in this case, agents of states. In a way, these spaces and the
manner in which they were conceived are part of an institutional logic, which
must structure actions, as well as the meaning of these actions. In the principles
of institutional structuring, we can see both the possibility of discursive action
and a restriction of this action. We shall then see that the construction of inter-
national relations is always connected with the power relations between states:
these organizations are used as a platform to regulate international relations for
the benefit of the strongest power. Within the institution, the internal logic of
structure – arising from politics, expertise and consultation – will be associated
with the general context in which we must understand the different structuring
of spaces regarding the protection of minorities. The logic of structure, in its
own way and according to different degrees of institutional power, produces a
national logic within an international space. This determines a particular view
The emergence of international institutions 45

of what constitutes a minority. This view inserts itself into the tension between,
on the one hand, a universal vision of world order (principally by means of
anchoring minority protection within the mechanisms of the protection of hu-
man rights) and, on the other hand, an institutional structuring of consensus that
refuses to impinge on state prerogatives.

2. The emergence of international institutions and


the international protection of minorities
The central aim of this section is to historically anchor the different stages of the
emergence of the United Nations as a discursive space. I shall therefore focus
principally on the periods of history, which could be considered vital stages
in the elaboration and structuring of international relations and of the gradual
constitution of the instituted agencies. The historical stages can be synthesized
into three periods, each one relating to historic moments with regard to nation-
states. The period of consultation (following Mangone 1954), corresponds to the
emergence of nation-states (cf. Hobsbawm 1990) and extends from the French
Revolution and Empire until the end of the 19th century. The period of collabora-
tion (cf. Mangone 1954; Abi Saada 1981) begins after the end of the First World
War and sees the state and geo-political consequences of world conflict (such
as the collapse of the Empire). Finally, the era of the United Nations, created
following the Second World War, initiates a quest for universality, heralding a
globalization of international relations.

2.1. From consultation to elaboration: a brief history


of international institutions

The existence of international institutions is a somewhat recent phenomenon


in the history of humanity. After the French Revolution and the period of the
Empire, the quest for a space of peace and stability, after a succession of wars,
appeared as a necessity for the balance of power in Europe. The Industrial and
Scientific Revolution and the extraordinary development in the transport of
goods and people and in the circulation of ideas led to a growth of commerce,
the establishment of a common economic space, the international division of
work and a sense of belonging in a universal community. The emergence of
modern international organizations can therefore be seen as a response to a rapid
economic and technological evolution, and the associated social and political
ramifications (Abi Saab 1981).
46 Discursive spaces and the protection of minorities

Supra-national institutions are the product of two movements that emerged


at the end of the 19th century: the development of international conferences and
the emergence of international unions procuring a framework of co-operation
(Abi Saab 1981). The outcome of these movements was the increasingly elab-
orated constitution of international administrative systems, which allowed the
proliferation of multi-national treaties within a framework of regulated interna-
tional activities. These movements emerged for reasons that evidently go beyond
the simple structuring of relations among states: they are, in effect, woven into
a tapestry of relations that permitted both political and economic agreements.
This was evidently the case with regard to the Congress of Vienna. The
Congress reunited the powers that had signed the Treaty concluded in Paris,
30 May 1814, with the aim of redistributing the conquests of a “revolutionary”
and imperial France. Its aims were achieved: namely, (1) the restoration of
political equilibrium and (2) the establishment of structures that would limit
France’s desire for expansion, through the creation of a group of independent
secondary states, surrounding France like a “sanitary cordon”. The Final Act
of the Congress, comprising 121 articles, established the balance among the
five great powers, which began by sharing the “loot” in the form of territorial
modifications.
The Congress of Vienna exemplifies the arrangements constituted by inter-
national relations at that time, which intermeshed for a limited period and a
clearly specified aim – an aim that must be seen in relation to territorial rear-
rangements, fundamental rearrangements in that they take a new international
order into account. At the same time, this example also illustrates how the in-
ternational dimension must be understood in terms of the truism of national in-
terests. The same goes for alliances formed around bilateral conventions, which
arise primarily for economic reasons and the circulation of goods and people.
The conditions enabling this form of internationalism did not in any way stunt
the growth of the idea of the nation-state and the development of nationalism
(Gerbet 1981). The states, which played a central role in international relations,
maintained their administrative and political structures and their military capac-
ity, particularly at the end of the 19th century. The development of international
laws led to a more precise definition of the notion of territorial jurisdiction: the
definition of sovereignty and independence.
The regrouping of these two movements – international conferences and
international unions of co-operation – can be seen firstly in the creation of the
League of Nations and, secondly and more elaborately, in the creation of the
United Nations.
While the 19th century can be considered primarily as a period of interna-
tional consultation (Mangone 1954), the 20th century is a period of collabora-
The emergence of international institutions 47

tion, exemplified above all by the creation of the League of Nations. The League
of Nations constitutes a clear demarcation because it can be seen, not so much
as a simple and occasional international conference as was the case in the past
(for example, the Congress of Vienna), but rather as a permanent organ, located
in a physical space and bestowed with its own organizational structure.

2.2. The League of Nations: the era of consultation

The League of Nations emerged at a moment in history when world difficul-


ties, principally the absence of any effective structure, made conflict resolution
impossible. Although there were attempts to establish permanent organizations
for the arbitration and resolution of conflicts (notably the Conferences of The
Hague), none of these structures really saw the light of day. The idea of creating
an international “super-structure”, which could explicitly check and regulate
conflicts and prevent their disastrous enactment, emerged in various parts of
the western world in response to a world conflict, the First World War. The
conceptions of this “super-structure” all had the same premise, whether in the
United States, Great Britain, France or Italy, and despite differences in terms of
possible structure and form, i.e. the necessity of constituting a place in which
the management of conflicts could be effectuated, and where peace would be
the watchword and focus of the common interest.
Around 1915, a group of American political leaders began to develop the idea
of a League to Enforce Peace, which would allow arbitration at the political level
of all forms of dispute among states. They envisaged this institution as a means
of achieving reconciliation and, indeed, the resolution of world conflicts. Taking
into account the various positions expressed during their meetings, Mangone
(1954) summarizes the main idea of this League as follows:
The states of the world should create a League of Nations wherein all “legal”
disputes would be submitted to arbitration and all non justiciable or political
questions would be heard by a council of conciliation before resort to force. Should
any member of this League use military duress before bringing its grievance to a
tribunal or the council of conciliation, the other states of the League would unite
their strength against the renegade. (Mangone 1954: 129, referring to Latané
[1932: 717])

At the same time, in London, the idea of a League of Nations Society was being
proposed by a group of politicians, with a series of resolutions that were similar to
those proposed in the context of the League to Enforce Peace. These resolutions
were characterized by the same willingness to construct, on the basis of Peace
Conferences, permanent and effective organizations. Politicians in France and
48 Discursive spaces and the protection of minorities

Italy then rallied around the idea of a League of Nations and began to work on
its construction. As Mangone (1954) emphasizes, these initial discussions took
place in “private” spaces: significantly, official – that is, state – spaces remained
in the background in these debates. It was only later that first the British state and
then the American, French and Italian states gave their attention to the idea of
creating an international space of reconciliation. Through the mediation of the
Under-Secretary of Foreign Affairs, Great Britain undertook the establishment
of a committee whose task was to lay the foundations of this future space.
President Wilson of the United States joined the fray in February 1916, and
expressed the following idea during a speech at Des Moines:
What is America expected to do? She is expected to do nothing less than keep
law alive while the rest of the world burns.You know that there is no international
tribune, my fellow-citizens. I pray God that if this contest has no other result,
it will at least have the result of creating an international tribune and producing
some sort of joint guarantee of peace on the part of the great nations of the world.
(cited by Mangone 1954: 130)
The speech extended the position of the United States, represented by its presi-
dent, to the forefront of the creation of an international discursive space (“a tri-
bune”). At the same time, Wilson legitimized the developing idea of the League
to Enforce Peace. The first meeting of the League took place a few months
later and Wilson then explicitly stated his determination to work towards the
successful creation of an international space to which the United States would
give its weight. While this was happening, Great Britain and France created a
commission to study the creation of the League of Nations.
Taking up the ideas of the British government, of Wilson and some sugges-
tions by the French, the League of Nations was defined in Paris in 1919, at the
moment when the Allies were preparing to declare peace with Germany on 18
January. At the French Foreign Office, the creation of the League of Nations
was announced, reuniting the great powers of the war against Germany.
This historic moment and the circumstances leading to the development of
the League of Nations clearly establish a close link between the Peace Treaty
with Germany and the creation of this international space. This relationship was
intentional: it was an act that proposed an international alliance of the countries
that had fought to defeat Germany. The creation of the League of Nations was, in
a way, the outcome of the Peace Treaty, as the Treaty explicitly mentioned in its
document the creation of the League of Nations as the means of once and for all
remedying the atrocities of war. The fact that the First World War gave rise to a
new era of collaboration, and the link between the Peace Treaty and the creation
of the League of Nations, would, as we shall see, lead to great institutional and
political difficulties.
The emergence of international institutions 49

Another difficulty is exemplified by the absence of the United States from


the League of Nations. Although the United States, through the intermediary
of their president, was an integral part of the process, neither the supporters of
this new space nor the president himself succeeded in achieving unanimity in
the American Congress. Indeed, strong opposition was expressed in 1919, as
demonstrated by this declaration by Senator Reed of Missouri:
. . . a superstate, with rights, power and authorities superior to those of its con-
stituent members, who, upon acceptance of membership, become subject to its
governing control . . . it possesses a supreme jurisdiction over all matters inter-
national and over many purely national rights and policies . . . member nations
may be deprived of their most sacred rights in defiance of the will of their people
or their governments . . . (cited by Mangone 1954: 132)

This statement reflected the majority position in Congress, resulting in the de-
cision not to ratify the convention and thus excluding the United States from
participation in the League of Nations. It was therefore without the participation
of the United States that the organization as such was constituted. It entered an
era of international collaboration, which endeavored to palliate the errors of his-
tory by constituting an instituted, structured and effective space. These were the
express wishes formulated by the “victors” who guaranteed the smooth running
of the League of Nations.
This institution was to mark a rupture with the era of mere international con-
sultation. It was therefore quickly organized in order to give this space a structure
allowing it to function. Three main organizations emerged in the League of Na-
tions:

1. The Council: its base was constituted by Great Britain, France, Italy and
Japan, plus four countries of lesser stature, chosen by the Assembly.
2. The Assembly, comprising all the Member States at the time of the League’s
foundation: there were 42.
3. The Permanent Secretariat.

In general, the structuring of this space corresponded to the approaches devel-


oped in the 19th century. However, in order to avoid the lack of direction of
the past, namely the absence of regular meetings and of effective structure, the
Convention that gave rise to the League of Nations made the provision that the
Council should meet at least once a year. This meant that the League of Nations
was given a real visibility and that the group of member countries was obliged
to actively participate in the institution. The League of Nations also brought
about an era in which international bureaucracy took off, with the appearance
of documents, expertise and international legislature.
50 Discursive spaces and the protection of minorities

In terms of content, the League would come to deal with the issues of ill-
nesses, arms trafficking, slavery and commerce. Its mission gave rise to an im-
pressive collection of statistical data, the creation of international conferences
and the establishment of dependent, specialized organizations, such as the In-
ternational Intellectual Cooperation Organization, the Health Organization and
the Advisory Committee on Traffic in Women and Children. It also instituted
the Permanent International Court of Justice.
Throughout its history, however, the League of Nations was confronted by the
rigidity of its own structures, the impossibility of making its structure effective
in the matter of international conflicts and by a gradual renunciation of its
original vision – a program of international collaboration. The impossibility
of collaboration was due to the power relations, as well as the incompatible
and opposing ideological approaches, of the most powerful member countries.
As Mangone (1954) states, the League of Nations did not have the capacity
to construct itself in a regulated space and constantly came up against its own
limitations:

The provincialism of the United States, the pessimism of France, the opportunism
of the Soviet Union, the conservatism of Great Britain, all shuddered under the
ruthless arrogance of Japan, Italy, and Germany, while the small states, too, fre-
quently played with callous ambition or petty covetousness. (Mangone 1954: 153)

In the quest for international security, The League of Nations had to face a num-
ber of exclusions. In 1931, the Japanese invaded Manchuria. This led the League
to promulgate a resolution on the Sino-Japanese conflict – a resolution rejected
by Japan. Condemnations ensued, leading to Japan’s departure from the League
of Nations on 24 February 1933. The same year, on 31 March, Hitler assumed
power. On 19 October 1933, pursuing its policy of political independence, Ger-
many quit the League of Nations. In 1935, while Mussolini was in power and
following his invasion of Ethiopia, the League imposed economic sanctions on
Italy, ending Italy’s participation in the League of Nations. These three “dissi-
dent” states then initiated a series of rapprochements. In 1936, Germany and
Italy recognized Franco’s regime in Spain, in opposition to the League of Na-
tions. On 25 November 1936, Germany and Japan signed the Anti-Komintern
Pact, ratified one year later by Italy, just after the alliance between Hitler and
Mussolini. A series of territorial annexations by Germany, Italy and Japan fol-
lowed, propelling the world into general conflict.
The collapse of the League of Nations came with the advent of the Second
World War. This failure highlighted the ineptitude and unsuccessful mechanisms
of the institution, but also gave rise to the necessity of thinking differently about
international collaboration.
The emergence of international institutions 51

In the section above, I have shown how the League of Nations came into
being, as well as its limitations and decline. This space, as such, was never totally
disparate from other international movements, and contributed to the creation of
a universal vision of international relations. It blazed a trail in which the quest for
peace proved to be the principal motive of creation and function. The League of
Nations, as well as the other forms of international consultation outlined above,
provided a framework that allows us today, in relation to an understanding of
the interests at play in the establishment of international structures, to envisage
the different forms assumed by systems of minority protection in international
spaces. Indeed, it is fundamentally necessary to understand institutional logic
and the objectives pursued by international spaces, in order to understand the
place that can be occupied by mechanisms responsible for protecting minorities.
When we go back to the 17th century to see the first appearance of mea-
sures taken to protect minorities, we realize at once that these measures mainly
concerned religious minorities. Indeed, in spite of the principles of tolerance
and non-discrimination in most religions, oppression on the basis of religion is
preponderant. This causes significant instability and is the source of potential
conflicts; it also fundamentally endangers international relations. It was often
for these reasons that, during the 17th and 18th centuries, a series of treaties
between European countries included clauses relating to religious minorities
(e.g. the 1606 Treaty of Vienna between the King of Hungary and the Prince of
Transylvania, and the 1648 Treaty of Westphalia between France and the Holy
Roman Empire).
At the dawn of the 19th century, some multilateral (no longer only bilat-
eral) treaties included clauses relating to minorities. These treaties indicate a
diversification of the minorities concerned: they are no longer only religious
minorities, for example, the 1815 Treaty of Vienna recognizing the status of
national minorities, while ethnic minorities were first mentioned in the 1878
Treaty of Berlin concerning Hungary.
However, it must be noted that none of these treaties guarantees the rights
of linguistic minorities, apart from the Treaty of Vienna, in which the Poles of
Poznan were guaranteed the right to conduct their business in Polish alongside
German. The recognition of linguistic rights in national laws developed during
the 19th century, a period when the issue of nationality proved to be of vital
importance. They were mentioned primarily in the context of state constitu-
tions. In the Austrian Constitution, all the languages used in the provinces have
equal status with regard to education, administration and the public sphere.
The Swiss Constitution of 1874 recognizes three main languages. The 1868
Act of Hungary declares the equality of all citizens regardless of their na-
tionality, and also establishes systems of regulation permitting the recogni-
52 Discursive spaces and the protection of minorities

tion of the official use of the various languages spoken in the country (de
Varennes 1996).
With the advent of the era of international collaboration, the issue of the
protection of minorities extended beyond the context of state frontiers and was
situated at the level of international law connected to an international institu-
tional mechanism.
The initial absence of general mechanisms of protection with regard to mi-
norities in the context of the League of Nations was the object of numerous
criticisms that were resolved by the provision of some compromises. Indeed,
following the First World War, the League of Nations had to confront new deals
in the matter of territorial modifications. It was mainly at this level that the reg-
ulatory structures concerning minorities had some significance, entailing the
appearance of treaties protecting particular groups.
De Varennes (1996) classifies them in three categories. The first category
concerns the countries defeated in the First World War, like Austria, Hungary,
Bulgaria and Turkey. The second category relates to new states that came out
of the Austro-Hungarian Empire, like Czechoslovakia, Poland and Yugoslavia.
The third category includes special provisions with regard to certain peoples,
and unilateral declarations by states, determining their entry into the League of
Nations.
The League of Nations did not establish particular spaces or structures, but
rather used its power to regulate issues concerning minorities. All these treaties
had particular characteristics in common. Firstly, the protection that they foresaw
included the recognition of minorities at a level of equality with other nationals
of the state concerned. Secondly, the treaties ensured the preservation of racial
particularities and the national characteristics of minorities. The difficulty of the
League’s system, however, principally related to the fact that the treaties only
applied to certain countries, not to all, allowing the stronger states in power to
ignore the issue of minorities. Finally, in the context of the League of Nations,
the lack of explicit references with regard to human rights gave legitimacy
to the issue of minorities in terms of the rights of the individual; generally,
the term “human rights treaties” is subsumed behind “minorities treaties” (de
Varennes 1996).
In order to understand what the institution meant by “minorities treaties”,
the following words of the League’s International Court of Justice are edifying:

The idea underlying the treaties for the protection of minorities, is to secure for
certain elements incorporated in a state, the population of which differs from them
in race, language or religion, the possibility of living peacefully alongside that
population and cooperating amicably with it, while at the same time preserving
the characteristics which distinguish them from the majority, and satisfying the
The emergence of international institutions 53

ensuing special needs. In order to attain this object, two things were regarded as
necessary, and have formed the subject of provisions in these treaties.
The first is to ensure that nationals belonging to racial, religious or linguistic
minorities shall be placed in every respect on a footing of perfect equality with
the other nationals of the state.
The second is to ensure for the minority element suitable means for the preserva-
tion of their racial peculiarities, their traditions and their national characteristics.
These two requirements are indeed closely interlocked, for there would not be true
equality between a majority and a minority if the latter were deprived of its own
institutions, and were consequently compelled to renounce that which constitutes
the very essence of its being as a minority.
(Advisory opinion on minority schools in Albania [1935] Permanent Court of
International Justice, Series A/B, N˚ 64, 3, at p. 17, cited by de Varennes 1996:
131–132)
This document demonstrates different notions relating to the institution’s con-
ception of the protection of a minority: the notion of equality and the notion of
preservation of the characteristics that constitute “the very essence of its being
as a minority”. The objectives of these treaties, as we shall see, concern not
only minorities but also principles relevant to human rights. It can be noted, too,
that the formulation of the objectives is very general and could, therefore, be
applicable to any of the members of the League of Nations. However, the logic
of the institution at that time foresaw their adoption only for certain countries
that were the object of particular recriminations – countries that were especially
“at risk”. Here we can see the emergence of one of the limits of a logic that
tends towards the quest for universal peace but only functions within a relation
of power between the states “proper” and those that had to be regulated by the
international community. The notion of an international community proves to
be problematic itself, as Sergij Ailjan emphasizes (cited by de Varennes 1996):
The League, even though ‘of nations’ was an organisation of autonomous states.
Therefore the organs of the League, particularly the Council and the Secretariat,
considered the minorities’ problem mainly from the viewpoints of its members,
and not the minorities themselves. The lack of understanding of that basic issue
often resulted in disagreements. Such were most fully expressed in criticisms of
the League as an organisation that avoided any effective actions relating to the
minorities position. Expectations raised by the constitution, etc. envisaged the
organs of the League as ideally actively engaged against any given state considered
‘guilty’ of violating certain minority obligations. (de Varennes 1996: 32)
Interests relating to the protection of minorities in the context of the League of
Nations were principally limited to bilateral treaties between a particular state
and the institution. Here we have, then, an institutional structure that fundamen-
54 Discursive spaces and the protection of minorities

tally recognized the necessity of establishing functions with a bearing on the


control of rights, primarily on the principle of discrimination with regard to mi-
norities, but also an institution that deliberately chose a unilateral and selective
structure.

2.3. Synthesis of the section

The different elements emerging from this brief history can be summarized as
follows:
1. International institutions before the United Nations came into being gradu-
ally, starting from a period of consultation and moving towards a period of
collaboration.
2. These organizations were instituted in connection with significant events in
history; their point of departure was an endeavor to stabilize international
relations.
3. These organizations were primarily structured on the basis of state interests;
even though the instituted spaces (particularly in the League of Nations) put
forward a universal ideal and the quest for peace, they often came up against
nationalism in the presence of, and in relation to, power struggles among the
prevailing member states.
4. The organizations before the United Nations all encountered failure, which
was due for the most part to structures and modes of function that never
allowed the bypassing of national interests.
While regulations relating to linguistic minorities existed relatively early within
certain states, it was primarily in the League of Nations that various structures
concerned with their protection first appeared. The structures were developed at
the level of negotiations or treaties between the states that the institution deemed
problematic and the institution itself. This introduced a relation of structural
power that formed a particular vision of both the nature of a minority and the
nature of regulations in this matter.
While the League of Nations emphasized minorities in general, mentions
of linguistic minorities were made. This was principally because the end of the
First World War brought about important territorial modifications, including lin-
guistic frontiers and the creation of new forms of linguistic minorities in a given
state. Although the League of Nations did not, through its structure, explicitly
promote human rights, it did so implicitly by means of treaties on minorities.
We see here the deployment of a vision of humanist ideals, which emerged
against nationalist ideologies, power struggles and the establishment of struc-
tures that were either ineffective (as was the case with international conferences)
The United Nations: the emergence of the institution 55

or totally at the service of the strongest powers. This never allowed any consensus
to be achieved.
These observations allow us to understand the historical context in which
the United Nations emerged, including its antecedents in terms of institutional
structure and the treatment of minority issues. The history of the creation of the
United Nations must, fundamentally, be considered in terms of both rupture and
continuity with its predecessor.

3. The United Nations: the emergence of the institution

3.1. Historical premises

The collapse of the League of Nations culminated in the conflicts that pitted
various nations against one another in the Second World War. On the enemy
side were Germany (implicated in the League of Nations through the Peace
Treaty attached to it), Italy (member of the Council of the League of Nations),
and Japan (admitted to the circle of powerful nations in the struggle to reinforce
world peace). The institution and space of collaboration so sought after now
existed only “on paper”. The play of alliances shifted. The United States was
also at war against Nazism, thereby returning to the international scene and
assuming part of the leadership in the quest for peace. In 1941, Churchill and
Roosevelt indicated the necessity of considering the future in the hope of a better
world, implying the total destruction of Nazism and other forms of fascism.
In December 1941, when the United States, following the attack on Pearl
Harbor, found itself involved in the world conflict, the United States Department
of State embarked upon the drafting of a declaration called the “Declaration
of United Nations”. Its aim was to rally together all the nations opposed to
Germany, Italy and Japan. This was the first time that the term “United Nations”
was introduced. The function of the Declaration was to present a united front
to the enemy and to decide together on a possible time for an armistice. This
would avoid the risk of changes of alliances and of a piecemeal conclusion of
armistices, which carried the risk of upsetting the balance of power. Behind the
Declaration, were also the consideration of a possible peace and the attempt to
construct a new form of international alliance, a new space, which could prevent
the disaster of world conflict. As we shall see below, the United Nations was
inspired by the same idealism present in the creation of the League of Nations.
According to Tardy (2000):
Il s’agit là aussi de mettre à la disposition des Etats une organisation universelle
combinant compétences normatives et opérationnelles, au service de la paix et
56 Discursive spaces and the protection of minorities

de la sécurité internationale. (. . . ) Dans sa philosophie, l’ONU était l’héritière


directe de la SDN, mais devait s’en démarquer dans sa structure et dans ses
prérogatives. Là où la SDN avait échoué, dans sa tâche de gestion de la sécurité
internationale, l’ONU devait réussir, notamment parce qu’elle ne produirait pas
certaines des imperfections de la SDN. Ainsi l’ONU incarnait-elle l’espoir que
la SDN n’avait pu concrétiser. (Tardy 2000: 692)
[It was also a question of making a universal organization, combining norma-
tive and effective competencies at the service of peace and international security,
available to the states . . . In its philosophy, the UN is the direct descendant of the
League of Nations, but had to be distinct from it in its structure and prerogatives.
Where the League of Nations failed in its management of international security,
the UN had to succeed, notably because it would not reproduce particular im-
perfections of the League of Nations. The UN thus embodied the hope that the
League of Nations had not been able to realize.]

It was this hope that led to the emergence of this new international space. Indeed,
in 1943, the Conference of Moscow, uniting representatives of Great Britain, the
United States and the Soviet Union, saw the emergence of the premises of what
would become the United Nations. This Conference denounced the atrocities
committed by Hitler, recognized the democratization of Italy and discussed the
future of Austria; above all, it marked the history of the United Nations through
the constitution of the Declaration by the four great Nations – Great Britain, the
United States, the Soviet Union and China – on general security, recognizing “the
necessity of establishing at the earliest practicable date a general international
organization, based on the principle of sovereign equality of all peace-loving
states, large and small, for the maintenance of international peace and security”
(cited by Mangone 1954: 169). Thus, from the very beginning of discussions
and even before the actual creation of the United Nations, the principle of state
sovereignty was manifested, becoming one of the principles that have guided
the whole institution from its creation onwards.
An international (not supra-national) ideology, which was to unite all the
countries that had a common wish for peace and were “good”, thus emerged. In
December 1943, at the Conference of Teheran attended by Roosevelt, Churchill
and Stalin, the plans for peace were outlined. The three leaders called upon
all nations wishing to eliminate all forms of tyranny, slavery, intolerance and
oppression to join the “family” of democratic nations and to draw up the bases
of a world organization. In the Spring of 1944, the United States put forward a
plan of this organization with the aim of initiating discussion. On 30 May 1944,
the United States indicated to Great Britain and the Soviet Union that it was the
appropriate time to proceed with informal discussion of this proposition. The
discussion took place at the meeting of Dumbarton Oaks, 21 August 1944. After
The United Nations: the emergence of the institution 57

numerous exchanges of the plan between London, Moscow and Washington, an


agreement was reached between the United States, Great Britain, the Soviet
Union and China on 9 October 1944. Here, a similarity with the creation of the
League of Nations should be noted: it was the “victors” who constructed this
space, who gave it its first impulse and who, at the same time, emerged in a
dominant position.
The development described here, which would lead to the Conference of
San Francisco, where the effective bases of the United Nations were set up,
demonstrates that the spaces in which the institution was created are reserved –
sometimes even private – spaces. The bases of the organization were proposed by
the great powers. It was only in the final stage of negotiations, at the Conference
of San Francisco, that other states were involved in the process. The reason for
this had to do with the willingness to construct an institution, an international
space, in which the balances of power could only be dictated by the “victors”,
by those who claimed to belong to a free and democratic world. The leadership
of these countries would be reproduced in the structures established within the
framework of the future organization’s institutional architecture.

3.2. The Conference of San Francisco: institutional architecture and


the emergence of human rights

This Conference deserves particular attention. First of all, it was a key moment in
the creation of the United Nations, a phase that went beyond the strict discussions
between the four Nations and France as a consultant: a moment on a global
scale of the gathering of nations desiring to pursue the objectives of peace and
security at the heart of the space being created. Two significant elements must be
distinguished: the appearance of an architectural sketch of the future institution
and the emergence, during this Conference, of the notion of “human rights”.

3.2.1. The architectural bases


As Mangone (1954) records, 50 governments and 260 delegates had the task of
drafting a charter that would guarantee world peace and security. On 26 June
1945, the United Nations Charter was established and the United Nations was
then fully created. The Charter was fixed as the object stipulated in the first
article to
“To achieve international co-operation in solving international problems of an
economic, social, cultural, or humanitarian character, and in promoting and en-
couraging respect for human rights and fundamental freedoms for all without
distinction as to race, sex, language or religion” (United Nations Charter)
58 Discursive spaces and the protection of minorities

The coherence of the UN system is founded on the Charter which, beyond grand
principles, established the principal organs of the international institution. These
structures were based on those of the defunct League of Nations as well as the
Council of Europe, and were, effectively, to allocate power and decision.
The United Nations Charter distinguished six principal organs:
Article 7
1. Are established as the principal organs of the United Nations: a General As-
sembly, a Security Council, an Economic and Social Council, a Trusteeship
Council, an International Court of Justice, and a Secretariat.
2. Such subsidiary organs as may be found necessary may be established in
accordance with the present Charter.
(United Nations Charter)

1. The General Assembly: its aim is to deliberate on questions relating to the or-
ganization. It is the origin of mandates delegated to the different organs of the
institution. The General Assembly is in charge of making recommendations
in both the domain of human rights and the domains relating to various United
Nations Commissions. All the signatory states of the Charter are represented
here.
2. The Security Council: its aim is the maintenance of peace and security in the
world. Only 15 states are represented here. The Security Council carries most
weight in the UN system, in that it is given a very strong decisional power.
3. The Economic and Social Council: this is the organ that deals with economic
and social questions. It coordinates various commissions and committees.
It is principally this Council that attends to the respect of human rights and
fundamental freedoms according to Article 62 of the United Nations Charter:
“for the purpose of promoting respect for, and observance of, recommenda-
tions Human Rights and fundamental freedoms for all”.
4. The Trusteeship Council: its function is to ensure the appropriate administra-
tion of territories placed under trusteeship.
5. The International Court of Justice: situated at The Hague, this is the judiciary
center of the UN. It officiates at the request of the organs mentioned above.
Its mandate, among others, is to legislate in the matter of crimes against
humanity.
6. The Secretariat: this is the logistical organ of the United Nations. It is con-
cerned with current, administrative tasks. Its head is the General Secretary
of the United Nations.
The whole structure was primarily conceived so as to permit the future organi-
zation to use its weight in world decisions regarding security. While the League
of Nations was anchored more in bilateral and multilateral procedures and was,
The United Nations: the emergence of the institution 59

above all, tied to the conclusion of the Peace Treaty with Germany, the United
Nations was built on the idea of permanence beyond simple historical contin-
gencies. Therefore, the Charter and the spaces it creates are not anchored in a
relativist approach to issues of security, but rather in a universal approach. Tardy
(2000: 694) emphasizes that
la crédibilité de la SDN avait pâti de l’absence des Etats-Unis, de l’adhésion
tardive de l’Union soviétique (1934), puis de son exclusion en 1939, et bien sûr du
retrait du Japon et de l’Allemagne en 1935, suivi de l’Italie en 1939. Le dispositif
créé par la Charte des Nations Unies doit donc conduire ces Etats à considérer
que leur intérêt est davantage dans leur présence au sein de l’Organisation que
dans leur tenue à l’écart.
[. . . the credibility of the League of Nations suffered because of the absence
of the United States, the late joining of the Soviet Union (1934) followed by
its exclusion in 1939 and, of course, because of the withdrawal of Japan and
Germany in 1935, followed by Italy in 1939. The system created by the Charter
of the United Nations had to make States believe that it was to their advantage to
belong to the Organization rather than not.]

The emphasis on gathering together the largest number of states also allowed
the institution to be thought of from the universal perspective. One of the key
missions of the United Nations’ architects was to gather together in a single
space the greatest possible number of nations, based on the postulate that a union
around common ideals would allow the most effective management of conflicts.
Initially, there was the constitution of a space of democratic powers, excluding
those who had been defeated, but guaranteeing the possibility for every nation
wishing to belong to the democratic world to make the request to do so. Italy
thus became an effective member in 1955 and Japan followed in 1956. West and
East Germany had to wait until 1973. All these nations had to make a number of
pledges in order to show the rest of the world their determination to construct
and to belong to a free world.
According to Whittaker (1997), the architecture of the institution can be
considered to be ruled by different principles:

1. the principle of association, the ideology of which is based on the idea of


an institution that succeeds in uniting in one space all the countries sharing
a common willingness to establish peace in the world and in claiming the
equal sovereignty of each member state;
2. the principle of hierarchy, deeming that all organs of the United Nations
are subject to the spaces of decision, namely, the General Assembly and the
Security Council;3
60 Discursive spaces and the protection of minorities

3. the principle of collective security that tends in particular to make the mem-
ber-states responsible with regard to the general and universal principles in
the matter of peace and security.
In conclusion, Whittaker (1997: 8–9) emphasizes “two important riders to these
principles. First, nothing in the Charter authorized the UN to intervene in matters,
essentially within the domestic jurisdiction of any state, or indeed, required it
to submit such matters for settlement. Further, nothing in the Charter was to
impair the inherent right of individual or collective self-defense if one member
were to attack another.”

3.2.2. The filigree of human rights


The Conference of San Francisco also saw the emergence of the issue of human
rights. It was primarily at the initiative of the smaller states that the reaffirmation
of faith in fundamental human rights was added to the preamble of the Charter,
with an emphasis on promoting social progress and better living conditions.
It is interesting that, during the first meetings of the four powerful states, the
question of human rights was not taken into account in the preparation of the
future organization, and no space was provided in this regard. In the univer-
sal ideals of the four great nations, the component of human rights was not
given any explicit mention, but was subsumed within the idea of peace and
security.
The willingness to include the dimension of human rights in the work of the
future organization can be clearly seen in the Conference debates. The lack of
time and the difficulty of the task, however, prevented a Declaration from being
made at this Conference, but the Charter established on that occasion would
include a mention of this subject in Article 62:
Article 62
1. The Economic and Social Council may make or initiate studies and reports
with respect to international economic, social, cultural, educational, health,
and related matters and may make recommendations with respect to any such
matters to the General Assembly to the Members of the United Nations, and
to the specialized agencies concerned.
2. It may make recommendations for the purpose of promoting respect for, and
observance of, human rights and fundamental freedoms for all.
3. It may prepare draft conventions for submission to the General Assembly, with
respect to matters falling within its competence.
4. It may call, in accordance with the rules prescribed by the United Nations,
international conferences on matters falling within its competence.
(United Nations Charter)
The discursive spaces of the UN and linguistic minorities 61

Another testament to this movement is the plaque at the entrance to the Fairmont
Hotel in San Francisco:
25 April–26 June 1945
In this room met the Consultants of forty-two national organizations assigned
to the United States Delegation at the Conference on International Organization
in which the United Nations Charter was drafted. Their contribution is partic-
ularly reflected in the Charter provisions for human rights and United Nations
consultation with private organizations.
(cited by Eichelberger 1970: 70)

The humanitarian dimension was thereby “set in stone”, and would give organi-
zational and symbolic legitimacy to the United Nations with regard to the issue
of the protection of the fundamental rights and freedoms of human beings.
The various steps undertaken in the establishment of the institution’s spaces,
and the explicit emergence of the notion of human rights at the Conference
of San Francisco, indicate the place that the issue of minorities would occupy
within the context of the United Nations in future. The mandates given to the
Human Rights Commission, as I shall demonstrate below, would integrate the
protection of minorities into the Commission, demarcating the production of
knowledge on minorities in an explicit connection to human rights.

4. The discursive spaces of the UN and linguistic minorities

As we have seen, the structure of the institution was established during the Con-
ference of San Francisco.This structure would immediately define the conditions
for the creation of new spaces within the general architecture described above.
These would be situated in hierarchical relationships, including segmentation
according to thematic differences.
It is necessary to understand how the different spaces were constructed, and
how the general question of minorities, as well as the particular question of lin-
guistic minorities, appeared. I shall show how the progressive construction of
increasingly specialized structures must be understood in relation to the institu-
tion’s ideologies observable in its function and structure. For the purposes of this
study, I shall focus on the creation of these different spaces. This will allow me
to demonstrate the place of the debate on linguistic minority protection, as well
as the constraints and the institutional context of this debate. I shall distinguish
three key spaces corresponding to three conceptions of linguistic minority pro-
tection within the United Nations. These three spaces are important in that they
are inscribed in the general structure of the institution, i.e. in an institutional
62 Discursive spaces and the protection of minorities

logic that, from the outset, favors the anchorage of minority protection within
the systems of human rights protection. This logic also constructs increasingly
specialized discursive spaces, with the corollary of a dilution of decisional power
as the spaces are specialized.

4.1. Three discursive spaces, three modes of functioning, three forms


of hierarchical relations

These are the three discursive spaces that I shall then attempt to describe and
understand by demonstrating how they emerged, how they are structured, and
the evolution they have undergone:
1. The Commission on Human Rights, subordinate to the Economic and Social
Council. This space participates in the elaboration of the humanitarian project
assumed by the institution in the context of the San Francisco Conference;
2. The Sub-Commission on the Prevention of Discrimination and the Protection
of Minorities.4 The Sub-Commission was created subsequent to the Com-
mission and focuses principally on the idea of expertise and propositions
directed specifically towards questions of discrimination and the protection
of minorities, as its title indicates;
3. The Working Group on Minorities. Historically, the most recent, created by
the Sub-Commission with the endorsement of the Commission. It consists
of experts from the Sub-Commission and of external experts specializing in
minority issues who intervene at the request of the Group.
These spaces are situated in hierarchical positions and overlap one another. As
we shall see in what follows, this positioning subsequently plays a role in the
kind of knowledge produced in each space.
The spaces located5 for the purposes of this work (cf. also Chapter 1, on
the location of discursive spaces) will therefore allow me to demonstrate the
various significant functions of the institution. In this regard, I shall distinguish
three different kinds of spaces that overlap one another hierarchically, with each
one being characterized by an internal function and a structural positioning.
They are also distinct in the prevalence of their missions and functions, as
follows:
1. A political structure: a space that stands out primarily as a place where power
arises from the member-states and where debates occur according to the
political issues between states.
2. A structure of expertise: the mission of this space is to construct studies
produced by experts who are considered to be independent and who in fact
The discursive spaces of the UN and linguistic minorities 63

possess a relative power, systematically contributing to political decisions


made at the highest levels of the institution.
3. A structure of consultation: a specialized structure that includes not only in-
stitutional experts, but also state representatives, NGO representatives and
academic experts. The mission of this structure, as such, is to gather informa-
tion and to be positioned as a space in which “consultation” is the watch-word
of its activities. An absence of power and a structural subordination to the
spaces above are implied in the idea of consultation, relegating this space to
a primarily archival task, which can thus be consulted at any time.
While the three spaces correspond more specifically to one or other of these
components, each space includes each of these structural dimensions. The po-
litical dimension is omnipresent. Behind the spaces of specialized consultation,
there is the production of expert knowledge. In a political structure, the relations
between the production of knowledge and political interests are constantly in-
terwoven in games of legitimation. It nonetheless remains that the structure and
effect of the spaces are determined by their mandate and their function. Each
space thus assumes one of these three components as a dominant mode.
I shall focus on these three spaces and demonstrate the conditions of their
emergence, by focusing on the mandates attributed to them and by specifying
their mode of internal and hierarchical structuring.

4.2. The Commission on Human Rights: a political space

4.2.1. The creation of the Commission on Human Rights


The mention of minorities and their protection first appeared on paper when a
working group was mandated in order to give more explicit contents and func-
tions to the structures established during the San Francisco Conference. This
group of experts, consisting of representatives of the states present at the San
Francisco Conference and thus belonging to the “family” of democratic coun-
tries, met at Westminster in London in October 1945: they constituted Commit-
tee 3 of the preparatory Commission of the United Nations. More specifically
responsible for giving an architectural basis to the Economic and Social Coun-
cil, the Committee formulated general commentaries which were intended to
establish their work in relation to the initiatives given by the Charter, as can be
seen below:
5. Article 68 provides that the Economic and Social Council “shall set up com-
missions in economic and social fields and for the promotion of human rights,
and such other commissions as may be required for the performance of its
functions”. (PC/EX/ES/36)
64 Discursive spaces and the protection of minorities

Supported by Article 68 of the United Nations Charter, the Committee recom-


mended the creation of a specific Commission, directly attached to the Economic
and Social Council, which would deal with the question of Human Rights. In
the context of the definition of this Commission’s role, we see the mention of
“minorities” and their “protection”:
Commission on Human Rights
18. In general the functions of the Commission would be to assist the Council
to carry out its responsibility under the Charter to promote human rights.
The studies and recommendations of the Commission would encourage the
acceptance of higher standards of such rights and help to check and eliminate
discrimination and other abuses.
19. In particular the work of the Commission might be directed towards the
following subjects:
a) Formulation of an international bill of rights.
b) Formulation of recommendations for an international declaration or con-
vention on such matters as civil liberties, status of women, freedom of
information
c) Protection of minorities [and solution of problems arising from inter-racial
causes].
d) Any matters within the field of human rights considered likely to impair
the general welfare or friendly relations among members.
20. Studies, recommendations and provision of information and other services
would be made at the request of the General Assembly, and the Economic and
Social Council, whether on its own initiative or at the request of the Security
and Trusteeship Councils.
(PC/EX/ES/36)

An examination of the debates of Committee 3 allows us to highlight evidence


of the presence of minority protection in the mandate of the Human Rights
Commission. One can probably link this evidence to two things.
The first relates to the structures of the League of Nations. The League of
Nations did not have a particular or specific place for the question of human
rights; however, it did have a system for the protection of minorities. Although
the system, as we have seen above, was not entirely satisfactory (the lack of
an effective framework for dealing with human rights issues; subordination of
the human rights question to the question of minorities, which in fact dimin-
ished global concern regarding human rights, etc.), it immediately illustrated
the link between human rights and minority rights. As we saw in the preceding
section, minorities treaties were substituted by human rights treaties. Varennes
(1996: 130) states the following: “In fact, to call them ‘minorities treaties’ is
something of a misnomer: human rights treaties would be more appropriate
The discursive spaces of the UN and linguistic minorities 65

since many provisions were not minority-specific but were for the benefit of all
individuals”. The structural emphasis on human rights therefore led implicitly
to the mention of minorities within it.
The second has more to do with historical conflicts – factors in the destabi-
lization of peace and in powerful forms of oppression – that make the integration
of minority protection in the mandate of the Human Rights Commission both
evident and necessary. We shall see later (cf. Chapter 4), however, that this evi-
dence will be problematic, at the very least, when the Universal Declaration of
Human Rights is put in place.
In the preparatory document of the Commission’s mandate, one notes that
the question of inter-racial conflicts is put in brackets: they are mentioned, with-
out being fully integrated. To some extent, the use of this punctuation gives the
impression of a kind of subordination, as well as a specification connected to
the protection of minorities. This must be linked to a dominant dimension in the
context of the United Nations Charter: the principle of non-distinction on the ba-
sis of race, language, ethnicity, culture or gender. All of these characteristics are
implied in the issue of minorities (the question of “gender” having been already
specified by the Commission via recommendations for a future declaration or
convention on this subject). We shall see that, in the final mandate of the Commis-
sion, the mention of inter-racial conflicts disappears and is replaced by an explicit
mention of the principle of non-discrimination. This introduces a certain change
of paradigm, explicitly raised by the General Assembly in one of its resolutions:
There is, however, a very important change in approach in comparison with the
past; since 1945, this principle has been included in the context of the protection
of human rights and fundamental freedoms of all human beings, and not the
context of measures designed especially to protect minorities.
(RES 217 A/ General Assembly)

Here, we can see a space that is structurally in a position subordinate to the


Economic and Social Council. Its role is to attend to questions relevant to hu-
man rights, but according to a mandate given by the Economic and Social
Council.
The Commission is responsible for producing studies and recommendations,
giving the power of decision not only to the Economic and Social Council but
also and primarily to the Assembly. The mandates are assigned by the superior
organs. The double dimension – of hierarchy and investigation – clearly demar-
cates a space in which action, as such, is limited to the possibilities given by
superior organs, as well as by the type of mandates assigned. In the end, the action
is primarily conceptual. More fundamentally, in order to understand this space
from its programmatic development onwards, it is necessary to consider the lim-
66 Discursive spaces and the protection of minorities

itations imposed on it, limitations that can only be understood in and through
the logic of the institution, which gives the last word to the supreme organ.
However, this does not mean that the Commission, defined as an organ of
studies and recommendations, is apolitical: on the contrary. The propositions
concerning the composition of Commissions, made by the committee of prepa-
ration of the United Nations, are clear with regard to the future membership of
the Commission but, at the same time, reveal a paradox:
Composition of Commissions and Subordinate Committees
41. Commissions should in most cases contain a majority of responsible highly
qualified Government officials or other Governmental representatives. In
fields where the work of the Commission is closely related to recommenda-
tions for specific action by Governments, acceptance of this principle would
add realism and responsibility to the advice of the Commission, and improve
the prospects of implementation by Governments.
Appointments in this category might be made from any Member of the United
Nations, in two ways: (a) by the Council, after obtaining the consent of the Gov-
ernment concerned and (b) by Governments nominated by the Council.
(PC/EX/ES/36/Rev.1/Part III)
The paradox is to be found at the level of a double legitimation, observable
in the identification of the characteristics required of future members of the
Commissions. As we can see, preference is given to state representatives or
affiliates; at the same time, it is specified that these must not only be “responsible”
but also “highly qualified”. The use of these terms indicates the importance of
having legitimacy in terms of competence in order to serve within a Commission;
however, the required competencies are not mentioned anywhere.
With regard to Commission members, it is interesting to see in the same
paragraph an elucidation concerning the attitude expected of future members.
I link the attitudinal dimension to the qualifiers “responsible” and “realistic”.
Indeed, as the whole document on the structure and composition of Commissions
indicates, the principle of collaboration and consensus is essential. In order for
a Commission to function, the possible limits of the relevant space – and also,
above all, of the institution as a whole – should not be violated. This aspect is
reinforced by aligning, at an argumentative level, these attitudes, the relation to
the states and the essential principle of sovereignty at the center of the United
Nations structure.
Behind the extolled realism, we can also see the institutional constraint in
which recommendations and studies may be envisaged, as well as the con-
straints linked to the possible overlapping of contentious areas, such as the
areas of human rights and state prerogatives. The allusion to questions of “im-
plementations” also reveals, in this way, the thorny problem of taking action.
The discursive spaces of the UN and linguistic minorities 67

Realism and responsibility therefore seem to be the qualities essential to the


smooth running of the institution – to the pursuit of a consensual collaboration
between the different hierarchical levels, while seeking to maintain state power
relations.
While we will not discuss objectivity and neutrality more explicitly here,
these ideological considerations are nonetheless necessary to the legitimacy of
the spaces constituted by Commissions. Indeed, as soon as the architectural
framework is put into place, an inherent constraint emerges: between the prin-
ciple of state sovereignty (and therefore national interests) on the one hand, and
the mission of universality (referring to the basic ideology of the institution) on
the other. We shall later see that this tension increases in strength in the matter
of human rights, given the symbolic meaning of the space in question and its
inherent contradictions (between universal principles and practical, necessarily
particular cases that question these principles).
The extract above evokes this inherent constraint. While acknowledging pos-
sible dissensions and the presence of national issues that could become problem-
atic, however, the culture of consensus should not be renounced. The conviction
that there is the possibility for state interests to be by-passed (even though
primacy is given to state representatives) is far from being abandoned. The so-
lution consists in the acceptance of the integrity and “qualification” of the agents
present in these spaces.
What I would like to emphasize in all the preparatory documents dealing with
Commissions in general and with the Human Rights Commission in particular
is, above all, a construction that continues the structure of the Charter and
the San Francisco Conference, thus cementing the principles of sovereignty and
hierarchy in institutional procedure.The preparatory documents are fundamental
insofar as they lay the foundations of the Human Rights Commission by defining
the structure and contents of its mandate. This is what we will now consider.

4.2.2. The mandates of the Commission on Human Rights


As we have seen, the creation of a Commission on Human Rights was proposed
by the preparatory Commission and was endorsed at the first session of the
Economic and Social Council in its 1946 resolution. Its role was defined in the
following manner:
5) Commission on Human Rights and Sub-Commission on the Status of Women
Section A
1. The Economic and Social Council, being charged under the Charter with the
responsibility of promoting universal respect for, and observance of, human
rights and fundamental freedoms for all without distinction as to race, sex, lan-
68 Discursive spaces and the protection of minorities

guage or religion, and requiring advice and assistance to enable it to discharge


this responsibility
ESTABLISHES A COMMISSION ON HUMAN RIGHTS
2. The work of the Commission shall be directed towards submitting proposals,
recommendations and reports to the Council regarding
(a) an international bill of rights;
(b) international declarations or conventions on civil liberties, the status of
women, freedom of information and similar matters
(c) the protection of minorities;
(d) the prevention of discrimination on grounds of race, sex, language or re-
ligion.
3. The Commission shall make studies and recommendations and provide infor-
mation and other services at the request of the Economic and Social Council.
4. The Commission may propose to the Council any changes in its terms of
reference.
5. The Commission may make recommendations to the Council concerning any
subcommission which it considers should be established.
(RES 16.02.1946 ECOSOC)
Based on Article 63 of the Charter of the United Nations and on the recommen-
dations of Committee 3 on the preparation of UN commissions (cf. preceding
section), the Economic and Social Council, during the sessions of 16 February
and 21 June 1946, officially instituted the Commission on Human Rights. The
Commission on Human Rights became the principal organ dealing with issues
of human rights. Located spatially in Geneva at the premises of the defunct
League of Nations, under the presidency of Eleanor Roosevelt, the Commission
then held its first session.
As we read in the extract above, the initial functions of the Commission were
limited to the above mandates, thus remaining primarily confined to specific
studies relating to human rights and, more specifically, to the drafting of in-
ternational treaties with regard to human rights. However, with the increasing
importance of the place of universal human rights in the various organs of the
United Nations, the Commission gradually came to be an essential organ and
gained political power. Particular elements permit us to understand this gain
in power: the increase of members to 53 state representatives, its ability, since
1967, to “examiner des communications relatives aux violations des droits de
l’Homme et des libertés fondamentales” [(examine communications relevant to
the violations of human rights and fundamental freedoms)] (Rouget 2000: 31),
and the increase of international texts initiated within the Commission and
which it worked actively to control and implement. Gradually, therefore, the
Commission on Human Rights would assume the mission of putting into place
The discursive spaces of the UN and linguistic minorities 69

its own system of control, and its own tools of observation and investigation of
violations of these rights.
To the credit of the Commission mention should be made of the proposition
to set up various treaties relating to human rights (for more details on the subject
of international instruments, see Chap. 4, 5 and 6)
– International Covenant on Economic, Social and Cultural Rights
– International Covenant on Civil and Political Rights
– Optional Protocol to the International Covenant on Civil and Political Rights
– Second Optional Protocol to the International Covenant on Civil and Political
Rights, aiming at the abolition of the death penalty
– International Convention on the Elimination of All Forms of Racial Discrim-
ination
– Convention on the Rights of the Child
– Convention against Torture and Other Cruel, Inhuman or Degrading Treat-
ment or Punishment
The political role that the Commission came to play was also made possible by
the creation of other, subordinate spaces, like the Sub-Commission (cf. the fol-
lowing section), the nomination of Special Reporters according to country and
theme, and the establishment of working groups. These structures, responsible
for the transmission of detailed studies and reports, conferred on the Commis-
sion’s activity further means of establishing recommendations and resolutions,
which would allow this space to play a predominant political role, taking into
account the contents of the debates and the state agents that participated in them.

4.3. The Sub-Commission: a space of expertise

4.3.1. The mandate of the Sub-Commission: its emergence and negotiation


During the first sessions of the Commission, while it was taking cognizance of
its mandate and reflecting on the mode of functioning and work that it would
adopt, the necessity of creating a Sub-Commission appeared in the debates. This
Sub-Commission would be more specifically responsible for studying one of the
components of its mandate: the protection of minorities and the prevention of
discriminatory measures. The desired creation of a new space was due to two
specific factors.
The first has to do with the fact that the General Assembly, then the Eco-
nomic and Social Council, requested that the Commission work on a Universal
Declaration of Human Rights as a priority. This high priority can be explained
by the undertaking made during the San Francisco Conference (cf. the preced-
ing section) to give the United Nations a clear direction in the matter of human
70 Discursive spaces and the protection of minorities

rights by means, in the logic of the institution, of drafting the adoption of an


official document – the future Universal Declaration of Human Rights.
The Third Commission of the General Assembly and the First Commission
decided to refer the discussion of the project of the Universal Declaration of
Human Rights, submitted by Panama and Cuba (two small countries that helped
to make the humanist role of the organization visible during the San Francisco
Conference), to the Economic and Social Council, which then entrusted it to the
Human Rights Commission (A234):
DRAFT DECLARATION ON FUNDAMENTAL HUMAN RIGHTS AND
FREEDOMS
THE GENERAL ASSEMBLY
WHEREAS
The Economic and Social Council has established a Commission on Human
Rights and resolved that the work of the Commission shall be directed towards
submitting proposals, recommendations and reports to the Council concerning
an international bill of rights.
RESOLVES THEREFORE to refer the draft Declaration of Fundamental Human
Rights and Freedoms to the Economic and Social Council for reference to the
Commission of Human Rights for consideration by the Commission in its prepa-
ration of an international bill of rights and expresses the hope that the question
will be referred back to it in order that it may be included in the Agenda of the
second regular session of the General Assembly.
A/234 (original version)
This resolution, dated 10 December 1946, clearly demonstrates the simultaneity
of the creation of the Commission and the attribution of the specific mandate
of drafting the future Universal Declaration of Human Rights. During the first
sessions, the Commission at once noted the magnitude of such an undertaking.
Even though a group of experts were appointed, the proposition of this Dec-
laration occupied a significant, if not omnipresent, place in the debates of the
Commission’s first year, leaving only a little time available to members of the
Commission to deal with other elements of its mandate.
The second reason that compelled the Commission to request the creation
of a Sub-Commission has to do with the actual nature of the subject: minorities
and non-discrimination. From the first debates concerning the Commission’s
functions, these subjects very quickly proved to be problematic in terms of what
was meant by “minority”. Various divergent positions within the Commission
began to emerge. Furthermore, the number of problems concerning minorities
already submitted to the Commission testified to the importance of this dossier,
as well as to its high degree of contention, as can be seen in the extract below:
The discursive spaces of the UN and linguistic minorities 71

Discussions of the Nuclear Commission on Human Rights touched upon the


protection of minorities and the prevention of discrimination on several occasions.
At its Eighth Meeting, the Nuclear Commission decided to recommend that – in
addition to the already existing Sub-Commission on the Status of Women (upon
which the Council on 21 June 1946 conferred the status of a full Commission)
only one new Sub-Commission, on the Freedom of Information and the Press,
should be established (document E/HR/16). At its Twelfth Meeting, Dr. Hsia of
China stated that in recommending only one additional Sub-Commission, the
Commission would be leaving a great many problems which had been referred to
it for study by the full Commission. He questioned whether it might not be better
to create a Sub-Commission on the protection of minorities.
(E/CN.4/Sub.2/2, pp. 1–2)
Faithful to the request formulated by the group responsible for studying the
working methods and internal structure of the Commission, the latter formulated
the mandate of the future Sub-Commission as follows:
Terms of Reference for the Sub-commission on the Prevention of Discrimination
and the Protection of Minorities
THE COMMISSION ON HUMAN RIGHTS DECIDED THAT THE FUNC-
TIONS OF THE SUB-COMMISSION BE:
(a) In the first instance, to examine what provisions should be adopted in the
definition of the principles which are to be applied in the field of the prevention
of discrimination on ground of race, sex, language or religion, and in the
field of the protection of minorities, and to make recommendations to the
Commission on urgent problems in these fields.
(b) To perform any other functions which may be entrusted to it by the Economic
and Social Council or the Commission on Human Rights.
(E/CN.4/Sub.2/15)
What is striking about this mandate is the emphasis on the two phrases that are
included in the actual title of the Sub-commission: the protection of minorities
on the one hand, and the prevention of discriminatory practices on the other. As
indicated above, it is not a question of making provisions but of examining the
possibility of provisions. It is also a question of reflecting on the “principles”, i.e.
on the main lines or bases of application relating to the prevention of discrimina-
tory measures and the protection of minorities. The Sub-Commission would also
have to observe problems according to their degree of urgency and importance.
The second point (b) provides for a possible broadening of the Sub-Commis-
sion’s mandate, which would be determined by the Commission or by the Eco-
nomic and Social Council. The formulation of the second point highlights the
Sub-Commission’s subordination, but also its mission of service. The mem-
bers of the Sub-Commission are not state representatives, but independent and
72 Discursive spaces and the protection of minorities

neutral experts selected by the Sub-Commission for their particular areas of


competence. In general, they are always specialists in economic sciences or
international relations, university professors or researchers. The geographical
distribution of the experts has to respect the five regional axes. The members
of the Commission choose the experts and therefore the political authority that
determines the composition of the Sub-Commission, as well as elaborating its
mandate.
The notion of independent experts appeared from the inception of the Sub-
Commission, as a pledge of the quality that would characterize the neutrality of
the results of studies, the apolitical positions during debates and the formulation
of recommendations. We shall see that the whole structure inherent to the Sub-
commission, as well as the intra-UN structure, came to contradict the positivist
ideology of the mandate of expertise.
This space of expertise at the service of politics, then, came into being in
1946. During its first sessions, the Sub-Commission proceeded to examine its
mandate in detail and to endeavor to put in place the directives relating to the way
it was to work. An examination of the debates at that time reveals the ambiguity
of the mandate and the difficulties involved in such an undertaking, as the extract
below demonstrates:
There were several discussions in the course of the session as to the exact meaning
of these terms of reference, and the Sub-Commission finally decided to submit
the following recommendation
The Sub-Commission on the Prevention of Discrimination and the Protection of
Minorities recommends that the Commission on Human Rights be good enough
to re-examine its terms of reference in order to clarify them and extend their
scope.
(E/CN.4/Sub.2/39)
The discussions alluded to in the extract on the “exact meaning” of the terms
stipulated in the mandate that became the object of a specific request for clar-
ification made to the Commission, prove to be a matter of great importance
in the present research, which aims at understanding both the functioning of
UN spaces and the place occupied by minority protection in these spaces. The
debate about “terms” of reference is primarily a debate on the mandate and the
manner in which the Sub-Commission would come to act and function. Among
these questions relating to terms, the problem of what is meant by “minority” is,
moreover, immediately thrown into debate (cf. Chapters 5 and 6). In the initial
debates about the terms of the mandate, three basic problems emerge:
1. The definition of the meaning of “minority”, and the identification of the
characteristics of such minorities;
The discursive spaces of the UN and linguistic minorities 73

2. The place that the question of minorities is supposed to have within the UN
space;
3. The reductive aspect of the Sub-commission’s mandate.

The tenor of the discussions emphasized the necessity for the newly created
space to clarify its own title, and all the members mentioned the need to know
what the Commission meant by “minority” and by “discrimination”. The initial
disagreement of the Sub-Commission’s members led them to ask the Commis-
sion to explain its mandate further and, paradoxically, to widen its meaning6 (cf.
the extract below).The request to widen its mandate seems paradoxical in light
of the enormous difficulties in merely agreeing on the meanings that should be
attributed to its terms. The request can be understood, however, in view of the
limited degree of power given to the Sub-Commission, especially in the mat-
ter of observations about the actions of states. From the outset, the members
considered that their field of action was too limited by the very structure of the
Sub-Commission and its mandate as established by the Commission.
The other object of debate was the question of what was meant by “minori-
ties” and the characteristics that would have to be held up in order to consider
the issues relevant to their protection. One can see that, while the mandate does
not specify which minorities are concerned and leaves the characteristics ap-
plicable to their protection open, experts immediately reduce the questions of
minority to characteristics of race, religion and language (the question of gender
being the explicit object of another Sub-Commission entirely). The identified
characteristics reflect two things: firstly, the principle of non-distinction and
its corollary – explicitly mentioned in the mandate of the Sub-Commission –
non-discrimination on the grounds of race, gender, language and religion, and
secondly, the antecedents of the League of Nations, which had attached the same
characteristics to minorities from the start. From the beginning of the debates
in this space, therefore, it would not be a question of thinking about minorities
in general but of religious, linguistic and ethnic minorities.
The Sub-Commission, therefore, is a space of expertise, consisting of experts,
at the service of a political space: it would put in place an internal structure and
methods of work in accordance with the mandate it had been given. I shall now
examine the internal structure of the Sub-Commission more closely.

4.3.2. The methods of work of the Sub-Commission


Throughout its history, the Sub-Commission has constantly focused on its meth-
ods of work, including the methods of work that it wished to adopt, as well as –
indirectly – its relations with the other organs of the United Nations, especially
the Commission and the General Assembly.
74 Discursive spaces and the protection of minorities

As its first mandate indicates, the Sub-Commission is not a political organ: it


is a place that is considered principally as a space for studying specific questions.
Its primary mission is to facilitate the decisional work of the Commission and
to execute the specific mandates of research given to it by the Commission.
The Sub-Commission is therefore a space that is totally dependent on superior
hierarchical spaces. It should thus be understood that the Sub-Commission must
function primarily as an organ that proposes, while the superior echelons dispose.
I shall illustrate the modes of functioning within the Sub-Commission and
the relations it has with other UN spaces by means of an extract. The extract
that is the object of analysis is interesting in that it unites different aspects of the
Sub-Commission’s functioning in one and the same resolution. The analysis that
I propose has, above all, an illustrative7 value, thus allowing me to demonstrate
how institutional functions materialize in discourse.
The extract8 analyzed below is a resolution: that is, a form of declaration
made following a series of debates within the Sub-Commission.
Resolution D
Methods of work of the Sub-Commission
The Sub-Commission on the Prevention of Discrimination and Protection of
Minorities,
Considering
(a) that the main work of the Sub-Commission since its sixth session has been
the preparation of a series of studies on different aspects of discrimination,
(b) that the task of preparing each study has been entrusted by the Sub-Commis-
sion to one of its members, who has been selected for the purpose as Special ........
Reporter
.. . . . . . . . . and that each Special Reporter .has . . . . devoted
. . . . . . . . . .considerable
. . . . . . . . . . . . . . . time
. . . . . . and
....
effort
.. . . . . . .to
. . .his
. . . .task
. . . . .on
. . . .a. .voluntary
. . . . . . . . . . .basis,
......
(c) that the nature of the studies themselves, the materials available in each case
and the methods of work of the Special Reporter may vary considerably and
that therefore there can be no identity of form between the reports,
Noting the policy of economy in documentation ordered by the General Assembly
in its resolution 1203 (XII) and the decision of the Economic and Social Council
in the annex to resolution 664 (XXIV), which provided that:
“. . . with regard to the programme of studies of discrimination on which the Sub-
Commission on the Prevention of Discrimination and Protection of Minorities is
engaged, the country reports utilized in the preparation of these studies be not
normally issued as documents . . . ”
Regarding resolutions B and C, adopted by the Sub-Commission at this session
(E/CN.4/Sub.2/L.134 and L.136):
Declares that the studies of discrimination being carried out by the Sub-Commis-
sion are, in its opinion, inseparable from the information on which they are based,
The discursive spaces of the UN and linguistic minorities 75

which is summarized in the “country studies”; and that, while ignorance of the
substance of this information reduces the value of the studies and leaves them
open to misinterpretation, inclusion of the information in the actual text of the
studies would rob them of much their cogency and quality by making them more
difficult to disseminate and read;
Notes with appreciation the statement made by the representative of the Secre-
tary General, at the 245th meeting, that we would endeavour to make additional
staff available for the preparation of “country studies” and so to bring about the
acceleration of the work of the Special Reporter, to which the Sub-Commission
attaches importance;
Requests the Commission on Human Rights to recommend to the Economic and
Social Council that, regarding the facts set forth in this resolution a reasonable
amount of flexibility should be allowed to the Sub-Commission in deciding on
the form which the studies and their ancillary material should take, in order
that the Special Reporters may carry out their delicate tasks in the objective,
non-controversial and constructive fashion which would be best designed to
achieve the purposes with which the Sub-Commission has been charged.
(E/CN.4/764-E/CN.4/Sub.2/192)

A discursive production
As can be seen, the resolutions follow a mode of discourse that is codified and
ordered by a series of verbs, emphasized typographically by underlining. These
performatives are found in variable degrees in all forms of resolutions, deci-
sions and amendments. The same ones are not always used and each one in
its way indicates a particular degree of performativity and a series of discur-
sive nuances. The first three verbs used (“Considering”, “Noting”, “Regarding”)
help to anchor the object of discourse, or even to legitimize the actual object of
the resolution. These sorts of preambles of argument, these discursive anchors,
also tend to place the object of discourse within a “historicity”, which is fun-
damental in an organization that is profoundly hierarchical and bureaucratic,
making explicit use of intertextuality. In a certain way, the existence of this
resolution is intrinsically linked to other resolutions or decisions (or to other
documents) and, more radically, it only has meaning in relation to them. In the
anchoring processes, we find a mention of its own functioning (introduced by
“Considering”), a reference to decisions emanating from other organs (“Not-
ing”), and a reference to a resolution made previously within its own space
(“Regarding”). It is not unusual to find different uses of verbs in resolutions of
this kind which, at first reading, could be considered synonymous. However, the
nuances introduced by these are not, in fact, the result of chance: the time that
the members of Commissions devote to discussing appropriate terms to be used,
76 Discursive spaces and the protection of minorities

indicates the great importance of the choice of words. Thus, “Noting” clearly
emphasizes an acknowledgement of the contents of the above-mentioned res-
olution, while at the same time denoting a distance between the writer and the
contents referred to. “Regarding” introduces a semantic nuance, introducing a
higher degree of appropriation of the contents of the “saying” [statement] by
the enunciator. The verbs that compose the preamble are participles, while the
verbs relating to the object of the discourse are formulated in the present in-
dicative: this introduces a difference between certifying and legitimizing acts of
language and performative acts of language anchored in previous legitimizing
acts.
In the second phase, the resolution – properly speaking – is put into words.
There is a structuring of discourse in three phases, each one introduced equally by
the use of underlined verbs. The function of this discursive structure is primarily
to develop the object of discourse with the support of the introductory arguments.
The first verb used, “Declares”, therefore explicitly indicates the determination
of the Sub-Commission and helps to give the discourse an assumed enunciatory
anchorage. The second verb, “Notes”, again introduces a reference to another
discourse; however, the idiom, “with appreciation”, reveals a difference to the
“Noting” of the preamble, which is not followed by a qualifier. This difference is
to be understood in terms of an enunciatory concordance between the contents
of the discourse and the enunciator. Finally, “requests” introduces the request
as such: that is, the result of the premises previously put forward. In this setting,
therefore, there is a discursive progression from argumentative anchorages to
the discursive object of the resolution.
What stands out, then, in strongly codified discursive formulae, is a series of
linguistic markers that indicate the relations between enunciators and recipients,
and between appropriation and distancing of discourse. These discourses indi-
cate, in a particular way, a series of power relations between the decision-making
organs and those who have to implement the mandates that have been decided
upon. These relations of power become all the more obvious if one examines
the manner in which the resolution brings to the fore the various UN echelons
implicated in the Sub-Commission’s structure and method of working.

The relations between UN authorities: a vertical structure


The above extract demonstrates the various structural constraints faced by the
Sub-Commission in the exercise of its functions. A brief look at the passages
highlighted in grey will ascertain four different organs: 1) the General Assembly,
2) the Economic and Social Council, 3) the Commission on Human Rights and
4) the General Secretariat.
The discursive spaces of the UN and linguistic minorities 77

One can thus see here the snowball effect of a decision made at the very high-
est level of the organization. Indeed, the resolution on the “policy of economy
in documentation” concerns all the organs of the United Nations. On the advice
of the Commission on Human Rights, the Economic and Social Council makes
the Assembly’s resolution explicit. It specifies its realization by giving a detailed
description of it, which is in contrast to the general decision made by the Gen-
eral Assembly. The Council’s decision is then relayed to, and approved by, the
Commission on Human Rights, which then conveys it to the Sub-Commission.
The General Secretariat deserves particular attention given the independent
place that it occupies within the institution. In effect, the Secretariat is a kind
of non state-controlled window on the institution, the organ that provides the
necessary information for studies. In this way, the resolution uses a reference
introduced by the Secretariat, which tends towards the resolution initiated by
the Sub-Commission but also runs counter to the decisions of the executive.
Finally, the Commission on Human Rights is mentioned here as the direct
advocate of the Sub-Commission, an advocate that is asked to take the Sub-
Commission’s concerns to the Economic and Social Council.
We can therefore see that the structure of the institution is determined by a
form of top-down hierarchy. A decision made within the Economic and Social
Council must be relayed by the authority below it to the authority concerned.
On the other hand, the advocate for the Sub-Commission is always the Commis-
sion, the latter having the power to either convey concerns to the level above or
to refuse to become involved. This structure, therefore, necessarily introduces
a mode of construction of knowledge that is totally dependent on relations of
power and helps to limit or make possible a particular type of investigation.
Finally, the decisions made in the context of the General Assembly have reper-
cussions for the work and mandate of a space like that of the Sub-Commission.
At the same time, these repercussions introduce the hierarchical relation and
clearly subordinate position of the Sub-Commission.

The Sub-Commission’s working methods


As we can see in the extract, the Sub-Commission functions primarily through
the intermediary of specific studies. These are decided by the members in the
context of the Sub-Commission’s general mandate, after being proposed to the
Commission. The selection of studies thus falls to the Sub-Commission, which
always includes the planning of new studies as an item on its agenda. The detailed
mandate of these studies is created by the members of the Sub-Commission who
then give the mandate to a fellow-member, in the capacity of Special Reporter,
to complete a detailed study on a particular subject.
78 Discursive spaces and the protection of minorities

The idea of Special Reporters appeared in 1955. When the Sub-Commission


was trying to work out a satisfactory mode of operation, in order to accom-
plish the task it faced and to undertake detailed studies on particular subjects,
the question of who should be given the mandate to undertake these studies
arose.
Several possibilities were available: (1) a consultant from the Secretariat,
(2) a special reporter drawn from the Sub-Commission or (3) an external, paid
consultant answerable to a committee of three members drawn from the experts
of the Sub-Commission (see E/CN.4/711-E/CN.4/Sub.2/170). Only one of these
three proposals received a consensus: the proposal of a Special Reporter drawn
directly from the Sub-Commission, who would work in unison with the Secre-
tariat. This method of work, involving Special Reporters, is still the basis of the
Sub-Commission’s work.
This solution, however, raised various questions about the endemic charac-
ter of the institution’s functioning. In effect, the production of knowledge is
dependent on the expertise of members of the Sub-Commission, and not on
anyone outside the institution. While one may assume that the use of external
expertise would result in greater objectivity,9 the use of internal expertise does
not, in fact, cause any problem within the United Nations, given that the neutral
and apolitical nature of the Special Reporters is absolutely certain. In the above
mentioned extract, moreover, one reads that the Special Reporter worked on a
“voluntary basis’, that he devoted much “time and effort to his task”, and that
he had to complete his task in an “objective, non-controversial and constructive
fashion”. Here, we find the formulation of the intrinsic qualities not only of the
Special Reporter but also of the members of the Sub-Commission (the Special
Reporter being one of them). It is not a matter, here, of putting the integrity
of the special reporter into question, but rather of demonstrating the positivist
ideology behind the work of expertise. (I shall return to this in more detail in the
context of Chapter 5.) Furthermore, what is outlined here is the general method
of the Sub-Commission: that is, the production of detailed studies. The following
remarks regarding the structuring of the Sub-Commission’s work can be read in
the Sub-Commission’s 1954 report to the Commission on Human Rights:
B. Preliminary views on factual foundations for the Sub-Commission’s recom-
mendations
31. It was clear to the members of the Sub-Commission that serious and complete
surveys were called for in order to gain the support of public opinion for
recommendations drafted by the Sub-Commission. Mr. Awad, in particular,
stressed the necessity of fortifying the Sub-Commission’s recommendations
by an impressive marshalling of incontrovertible facts, in order that the urgent
necessity for adopting and implementing such recommendations would be
The discursive spaces of the UN and linguistic minorities 79

apparent. Mr. Sörensen also felt that the Sub-Commission’s recommendations


could only be drafted in the light of all the available relevant facts, and that
its immediate problem was how to collect and organize such materials
(E/CN.4/703-E/CN.4/Sub.2/157)
The detailed survey described here, therefore, appears to be exhaustive. It is
fitting for experts to make recommendations that are based on facts – on sig-
nificant amounts of information that will fortify and legitimize the work of the
Sub-Commission. We can also see here the mention of “recommendations”:
the Sub-Commission indeed works at the level of recommendations, not deci-
sions.
Through this analysis and through the “window” that I used (namely, the
extract cited at the beginning of this section), we can see that the structure of the
Sub-Commission is governed by institutional structures and by forms of internal
structuring.At the institutional level, as I have shown, the hierarchical structure is
predominant: the existence and legitimacy of the Sub-Commission rely above all
on the role attributed to it by higher authorities. This determines a certain form of
work, as well as constraints in the production of knowledge. At the level of inter-
nal structuring, it should be noted that the Sub-Commission, from the beginning,
has seen its role in the form of a space of debate, responsible for considering
and studying specific questions connected with its mandate, i.e. to make recom-
mendations with regard to the prevention of discrimination and the protection
of minorities. The internal workings are clearly envisaged from the perspective
of the most exhaustive research of information possible. The knowledge that is
gathered is objectified, and this organ bases its institutional legitimacy on the
seriousness, neutrality and rigor of its detailed studies. As we have also seen, the
responsibility for these studies is incumbent upon Special Reporters drawn from
the Sub-Commission, aided by the General Secretariat. The reports are then dis-
cussed during sessions of the Sub-Commission by all the experts; modifications
of reports are requested, and specific recommendations are formulated.
We may mention several features to the Sub-Commission’s credit. The Sub-
Commission generally approaches all its work by stressing the necessity of find-
ing ways to prevent conflicts which, according to the Sub-Commission’s logic,
are often linked to discrimination: conflicts that oppose majority and minority
groups. Therefore, the study of the standards and mechanisms relating to the two
key concepts of the Sub-Commission’s mandate has been the object of constant
attention. On the initiative of the Sub-Commission, various thematic procedures
have been adopted by the Commission on Human Rights. The main objective
of these procedures is an inventory of the violations of the rights and standards
established in the field of international law, giving rise to published reports and
public questioning of those responsible for these violations. Many expert reports
80 Discursive spaces and the protection of minorities

have been produced on subjects that are specifically linked to the prevention of
discrimination (e.g. discrimination in education, discrimination and religious
practices, discrimination regarding political rights, discrimination and the caste
system, etc.) and to the protection of minorities (definitions of minorities, the
protection of minorities and the prevention of armed conflict, etc.).
It is also due to the Sub-Commission’s initiative that a specialized working
group was created: the Working Group on Minorities. This has given rise to
a space intended as a place of dialog and specific, “concrete” examination of
questions concerning minority issues exclusively.

4.4. The Working Group on Minorities: a space of dialog and consultation

After several reports in succession, a member of the Sub-Commission, M. Eide,


submitted a proposition on the creation of a Working Group that would focus
specifically on the question of minorities. This report appeared in 1993 – a sig-
nificant moment, as it was just after the ratification of an international instrument
procuring special rights for minorities: “The Declaration on the Rights of Per-
sons belonging to National or Ethnic, Religious or Linguistic Minorities” (cf.
Chapter 6). The Sub-Commission greatly contributed to the elaboration of this
report in the form of many documents and studies. Eide himself produced an
impressive number of documents on the subject, which put him in the position
of expert among experts with regard to minorities. The report introducing the
proposition of the creation of the Working Group is entitled “Possible ways and
means of facilitating the peaceful and constructive solution of problems involv-
ing minorities”. It is centered on finding effective methods to promote the rights
of minorities and to prevent conflicts involving minorities.
Having presented the issues and the possible framework for finding solutions
to the problems of minorities (arising from existing or potential conflicts), as well
as the actual practices involved, Eide then formulates the following conclusions:
A dual concern has been expressed in the study. On the one hand, external States
and other external actors should not unilaterally intervene in group conflicts or
encourage hatred and xenophobia. On the other, there is a need for channels within
regional organizations or the United Nations for addressing group issues within
sovereign States. Many such opportunities exist and could be made better use of,
guided by the new Declaration on the Rights of Members of National or Ethnic,
Religious or Linguistic Minorities. In the light of the severe violations of human
rights accompanying many group conflicts, however, there is an urgent need to
strengthen the existing institutions and their procedures, and also to develop new
mechanisms.
(E/CN.4/Sub.2/1993/34)
The discursive spaces of the UN and linguistic minorities 81

The ideas developed in the report highlight a fundamental aspect of group con-
flicts and the protection of minorities: the necessity of responding to these con-
flicts via the intermediary of international mechanisms (not in a unilateral man-
ner). In this way, there is a possibility for action on the basis of consensual
legitimacy, as international mechanisms are the instruments of international
diplomacy. Moreover, we see the idea of the effectiveness of the measures to be
applied. This implies the idea of action that would not remain in the international
arena, but would have to be translated into concrete measures.
Eide continues by drawing a parallel between human rights and minority
rights, demonstrating a constant inter-relation between the two. Concretely and
structurally, therefore, two directions are to be envisaged: one is to give current
institutions the means to put the rights they have instituted into place; the other
is to invite more specific thought about other kinds of mechanisms that would
be more efficient in managing the resolution and prevention of group conflicts.
This report, among others, contributed to the construction of a new, more
specific space, composed of a limited number of experts drawn from the Sub-
Commission, as we realize in reading the resolution of the Commission on Hu-
man Rights, which sets out the mission of a future Working Group on Minorities
as follows:
The Commission on Human Rights
(. . . )
9. Decides to authorize the Sub-Commission to establish, initially for a three-year
period, an inter-sessional working group consisting of five of its members, to
meet each year for five working days in order to promote the rights of persons
belonging to national or ethnic, religious and linguistic minorities, as set out
in the Declaration, and in particular to:
(a) Review the promotion and practical realization of the Declaration on the
Rights of Persons belonging to National or Ethnic, Religious and Linguistic
Minorities;
(b) Examine possible solutions to problems involving minorities, including
the promotion of mutual understanding between and among minorities
and Governments;
(c) Recommend further measures, as appropriate, for the promotion and pro-
tection of the rights of persons belonging to national or ethnic, religious
and linguistic minorities;
(RES 1995/24)
Several elements emerge in this document. First of all, there is a need to have in-
creasingly specialized structures within the framework of the mandate assigned
to the Sub-Commission, which clearly indicates a refusal of collusion between
82 Discursive spaces and the protection of minorities

the principle of non-discrimination and the principle of minority protection. This


clear demarcation is made possible by the existence of the instrument concern-
ing minorities (the Declaration on the Rights of Persons belonging to National
or Ethnic, Religious and Linguistic Minorities), granting specific rights to mi-
norities. The Working Group was thus responsible for the mission to “examine
the promotion and protection” of these specific rights.
The Commission gives practical details (number of sessions, number of
members). It also reiterates the link between the creation of the Working Group
on Minorities and the Declaration on minorities, in terms of studying the ways
that this instrument is put into practice. Furthermore, it raises the question of
“possible” solutions that would have to be studied by the Group members, spec-
ifying that these solutions have to include the relations between governments
and members of minorities. The Commission also emphasizes the possibility of
an increase in the degree of specialization (“further measures”) with regard to
the mechanisms associated with the protection of minorities.
The actors who compose this space are the members of the Sub-Commission,
mandated to work within the Working Group.
The Working Group, as a space of consultation, would appear under the aegis
of “dialog”, as we can see in the following extract:
The Working Group aims at being a forum for dialogue. Firstly, to facilitate greater
awareness of the differing perspectives on minority issues and, consequently, to
seek better understanding and mutual respect among minorities and between
minorities and Governments. Secondly, it can act as a mechanism for hearing
suggestions and making recommendations for the peaceful and constructive so-
lution to problems involving minorities, through the promotion and protection of
their rights.
(http://www.ohchr.org/english/issues/minorities/group/main.htm)
The document from which this extract is taken is an information sheet, published
by the United Nations and intended to give an account of the general activities
of the various organs relevant to human rights. In it, the grand principles that
direct and structure this space of consultation are condensed. We see that this
is not, strictly speaking, a space of expertise, but rather a space responsible
for bringing together, under the aegis of the instituted members, the greatest
possible number of actors in order to create a forum in which dialog is central
to all working methods. The element of dialog also appears in the documents
issued by the Working Group, thus implying a particular objective:
36. The Chairman-Reporter pointed out that as a forum for dialogue and mutual
understanding, the Working Group aimed at facilitating the sharing of expe-
riences. . . based on factual information submitted in a concrete and specific
manner. (E/CN.4/Sub.2/1996/2)
The discursive spaces of the UN and linguistic minorities 83

Accordingly, the Working Group would associate with NGOs, as well as with
independent experts brought in to intervene at the request of Group members, in
order to constitute a dialogic space. Furthermore, the Working Group, in associ-
ation with the General Secretariat, would request that states provide information
regarding the measures they take with regard to the protection of minorities. The
Working Group would study these documents, in order to make recommenda-
tions regarding the protection of minorities in the context of the Declaration. The
activities of the Working Group therefore deal with several different aspects, as
we can read in the following extract, taken from the first report of the Working
Group submitted to the Sub-Commission:
The Working Group decided to undertake the following tasks in conjunction with
the Secretariat:
To prepare annotations to the provisional agenda of its next session;
To request relevant extracts from States providing information under their treaty
reporting obligations;
To invite Governments to submit information on their minority legislation and
policy which would complement the information already contained in their re-
ports to the relevant treaty bodies;
To invite the relevant United Nations organs and bodies, the specialized agencies
as well as regional organizations, in particular the Organization for Security and
Cooperation in Europe and its High Commissioner for National Minorities, to
submit information on issues considered and experiences gained;
To invite international and national non-governmental organizations to submit in-
formation about their activities contributing to the implementation of the mandate
of the Working Group;
To disseminate the information about the activity of the Working Group and its
second session to Governments and intergovernmental and non-governmental
organizations;
(E/CN.4/Sub.2/1996/2)
The procedure and activities envisaged here, while relying on a search for dialog,
are strongly united with an inventory of practices, for the states as well as for the
NGOs. The archival component of the Working Group should be understood in
the sense of a permanent search for the most exhaustive information possible.
Its role is to document, catalog and compile pertinent information. The action of
archiving is no doubt one of the primary undertakings of the Working Group: the
Working Group achieves its legitimacy in such actions, in that it progressively
becomes a bank of incontrovertible data about the protection of minorities. The
information sheet, therefore, goes so far as to consider the Working Group as a
turntable:
84 Discursive spaces and the protection of minorities

Thus, discussions and documents adopted in various UN fora[sic] support the


approach of the Working Group by advocating for the establishment of mecha-
nisms for dialog and arrangements for participation to address the exclusion and
marginalization of minority communities.
http://www.ohchr.org/english/issues/minorities/group/main.htm
The Working Group is rapidly becoming the major focal point for the activities
of the United Nations in the field of minority protection. It has recommended,
inter alia, that: a database be established on good practices adopted in protecting
the rights of minorities; information on national, regional and international re-
course mechanisms be collected; the treaty bodies and Special Rapporteurs give
due regard to minority issues in carrying out their mandates; the High Commis-
sioner for Human Rights develop and implement procedures for conflict preven-
tion; inter-agency cooperation on minorities be further promoted; and seminars
be held on a regular basis on subjects of particular concern to minorities such
as intercultural education, the role of the media, the right to profess and practise
their own religion and the right to enjoy their own culture.
(Fact Sheet No.18 [Rev.1])
These statements should be considered with some critical distance, as they are
the outcome of a production intended to acknowledge the effectiveness of the UN
system. While the Working Group on minorities is certainly the most specialized
space regarding this subject within the United Nations, it nonetheless finds itself
totally dependent on the limitation of its mandate and its mode of functioning.
Being above all a dialogic space, it does not interfere in strictly political matters
and its constant seeking of compromise prevents it from becoming a space of
contention. In fact, this turntable of activities is a space where the accumulation
of knowledge is phenomenal, but where the possibility of action is extremely
restricted. The ideology of dialog is, in effect, an ideology for consensus: an
ideology that maintains the possibilities of work only within the strict context
of a search for constructive solutions. This can be seen in the following extract,
indicating that the Working Group should promote, not denounce:
In conclusion, the Chairman-Rapporteur underscored once again that information
should not be provided in the form of complaints but that constructive dialogue
should be encouraged and information about positive experiences brought to the
attention of the Working Group
(E/CN.4/Sub.2/1996/28)
Moreover, while the formulation of the information sheet tends to imply that
the United Nations follows the work of the Working Group, and even gives it
real credibility, we must admit that the model of functioning as I have described
it is somewhat different! Given the hierarchical relations and the allocation of
reciprocal mandates by higher authorities, the mode of knowledge produced
Conclusion 85

within the Working Group can in no way constitute a structural autonomy: on


the contrary. We shall see, in the course of this study, the convergence between
the production of knowledge on minorities and the ideology of the institution,
by examining in detail the work produced by the Working Group.

5. Conclusion
In this chapter, I have shown how discursive spaces regarding the protection of
minorities are constructed – first of all, within emerging international spaces and
then, more specifically, within the United Nations; how their functions have been
defined; and what forms these spaces have assumed in the course of time. I have
furthermore attempted to bring to light the reasons leading to these institutional
choices, demonstrating the existence of constraints linked to the structural logic
of the institution, as well as the ideology of sovereignty that prevails.
Various statements must then be made. First of all, while the institutional
forms taken by international organizations over time have been diverse (from
simple, immediate meetings intended to resolve a problem between states, to
the constitution of a structured and permanent organization), some common
characteristics in the ideologies prevalent in their existence can be highlighted.
Indeed, I have shown that, in spite of the apparent ruptures, recurring aspects
can be discerned:

1. International organizations are historically situated after the occurrence of


conflicts between states.
2. Their function is to find modes of structure that would allow the management
of relations between states.
3. They are initiated by the “victorious” states, which then assume leadership
in the structuring of international relations, as well as in the control of power
relations.
4. They tend to bring together state sovereignty and general objectives that, in
the most recent of these organizations, are universal as well.

None of these organizations have been fundamentally able to avoid the impasse
of national interests, and the form they have then taken can only follow this
particular logic.
As far as linguistic minorities are concerned, I have shown that most of
these organizations created structures responsible for taking their protection
into consideration. The presence of minorities in most of these spaces can be
explained as follows:
86 Discursive spaces and the protection of minorities

1. The world or multi-state conflicts that gave rise to these organizations gener-
ally involve territorial shifts, necessitating the specific consideration of new
geopolitical deals.
2. The presence of a minority within a state is often the cause of group con-
flict: the actual conflicts, on the basis of which these organizations were
constructed, have always included elements that implicate minority groups.
There are, therefore, both practical and prophylactic reasons for the presence of
specific considerations – even specific spaces – in international organizations
with regard to minorities. Linguistic minorities, although appearing later in
discussions on minority protection, are progressively and almost automatically
embedded in the totality of characteristics constituting a minority.
I have shown, moreover, that minorities are often considered in connection
to human rights. On the one hand, principles relevant to human rights are found
in treaties on minorities and, on the other hand, minorities in the context of the
United Nations are clearly tied to the UN systems and spaces relating to the
protection of human rights.
The forms of continuity in the reasons that motivated the construction of in-
ternational spaces are also associated with ruptures in their modes of structure.
The advent of the League of Nations and then of the United Nations is character-
ized by a willingness to formally institute a space of international negotiation.
Linked to this structure is an ideology of universalism, bringing together the
search for peace and the creation of an organ of power with an international
composition. While the first organization – the League of Nations – suffered
a bitter failure, the second – the United Nations – reinforced, in its structure
and philosophy, not only the principles of universality but also the structural
anchorages destined to promote the power of free nations and to rally others to
their cause.
In this general context, I have sought to understand how the spaces devoted
to the protection of minorities were conceived and created within the United Na-
tions. I then attempted to demonstrate particular characteristics of these spaces
by stressing the importance of the structures put in place, as well as by high-
lighting the interests underlying these spaces and their mode of internal and
external functioning (i.e. in relation to other spaces).
The United Nations therefore institutes an architecture that demarcates do-
mains of competence as well as relations of power and clearly hierarchical
decision-making. Over the years, the increase of specialized organs has been
accompanied by an increase of power from above to below, as I have shown
more specifically in spaces concerning linguistic minorities.
Furthermore, I have shown how these different spaces have moved towards
a greater degree of specialization which has, however, been associated with
Conclusion 87

a greater hierarchical stratification and thus with a diminution of power. The


Working Group is the most specialized space but also the most inferior, in that
all the knowledge established within it is subjected to an ascent to the higher
levels. At each step, there is a loss of information – which can be clearly observed
in terms of discourse – and a progressive diminution of interest in the matter.
The passage of information from one space to another presupposes a different
contextualization of the data according to the various objectives and issues of
each space. There is therefore not only a movement from more specialized to
more general, but also from the least political (even though the political element
is a constant in all these spaces) to the strictly political, according to the mandates
and the status of the members that make up these spaces.
Therefore, while it makes sense to speak of linguistic minorities within the
United Nations, this sense is determined by spatial and ideological limits, which
are established according to both institutional and state interests – the two being
completely interwoven. The United Nations, as a discursive space in which
linguistic minorities are mentioned, should thus be considered in light of what
it allows us to see and understand, i.e. as a space where the positions adopted on
linguistic minorities fundamentally reflect diverse state positions. This allows us
to observe different conceptions of the relations between minority and majority
groups, as well different conceptions of what language is. The attempt to identify
these conceptions, begun here, will continue in the examination of one of the
United Nations’ principal modes of functioning: the production of discourse.
Discourse, and therefore the universe of the saying, which I shall bring to light in
the context of Chapter 3, will be anchored within the discursive spaces allowing
them to exist. We shall see how they contribute to the legitimation of these spaces,
just as the latter allow and determine discursive possibilities. Accordingly, I
intend to show how the universe of the saying is articulated with institutional
architecture and with the production of knowledge on linguistic minorities.
Chapter 3
Production of discourse and institutional
constraints: the search for objectivity

1. Introduction
In spaces regulated by different institutionalized language practices (such as
international bureaucratic institutions), the forms that discourse may take are a
significant element of the logic that emerges in the context of such organizations,
which focus on legitimizing their actions and ideological conceptions. Indeed,
various studies on international organizations have insisted on the importance
of discourse as a way to access the production of meaning in the context of in-
stitutional debates (Abélès 1992, 1999, 2000; Abélès and Bellier 1996; Bellier
1995, 1999, 2000; Bellier and Wilson 2000); as a constitutive part of the institu-
tion, permitting it to exist and making it visible (Maingueneau 2002; Rist 2002;
de Senarclens 2002); and as an instrument of power (Muntigl 2000; Muntigl,
Weiss and Wodak 2000; Weiss 2000; Wodak 2000). Furthermore other stud-
ies have demonstrated the multilingual issues in the regulation of discourses in
international settings (Labrie 1993; Tabory 1980; Mamadouh 1999).
I shall consider here that discourses and discursive practices of international
institutions participate fully in institutional functioning and ideology (Smith
1990), in different ways and for a variety of reasons:
1. Discourse, both spoken and written, is the preferred mode of communication
in international institutions and is therefore the mediating and visible element
of the institution.
2. Discourse plays a role in the production of knowledge and in the transmission
of this knowledge within and outside the institution.
3. Discourse assumes different forms according to different discursive practices.
4. Language practices are anchored in institutional ideologies and logic by
means of which different kinds of power are exercised.
5. Discourse arises from a practice of legitimization of actions and ideologies.
As a matter of fact the particular roles discourses play in an international or-
ganization should be closely examined, not only in order to understand the
institutional logic subjacent to all discursive production, but also to grasp the
discursive components of the ideologies that I am attempting to bring to light
in this research. I shall therefore begin with a hypothesis that will subsequently
be supported: namely, that the understanding of bureaucratic institutions should
Introduction 89

occur via the study of discourses produced and, in particular, of the way they
are constructed. At the same time, however, an examination of institutional dis-
courses necessitates a critical consideration of what counts as discourse, of the
forms it takes and the various meanings it assumes. I thus intend to demonstrate
below that this examination of institutional discourse is motivated not only by
an a priori methodology, but also by ontological reasons directly related to the
area of research itself.
Therefore, although the methodology (cf. Chapter 1) of this research pri-
marily involves an analysis of texts – different types of documents – as they
are situated historically and in relation to other texts, I consider that discourse
is only of interest if it is analyzed in relation to the discursive spaces in which
it is produced (cf. Chapter 2), as a practice of knowledge production and le-
gitimization. My interest in discourse (and therefore the various components
of the saying) is connected to an interest in the materiality of discourse. It is
important to bear in mind that a materialist approach cannot avoid a detailed
interrogation of what is meant by discourse in a particular discursive space. To
be precise, it is necessary to investigate the nature of the discourses, how they
are constructed, the place they occupy within the institution and the discursive
spaces that compose the institution. This chapter therefore proposes a reflection
on the status of discourses, beginning with the idea that this will give us access
to institutional practices and their associated ideologies, as well as – more fun-
damentally – allowing us to consider the limits of interpretation, according to
the status assumed by the discourses and the status accorded to them.
In a still more “radical” manner, a critical reflection on the modes of saying
and writing within international bureaucratic institutions leads me to believe
that all contents conveyed by means of discursive materiality, such as the con-
tents relating to linguistic minorities, are interwoven in and by the materiality
itself. The forms taken by discourse are never neutral: they are constrained
and constraining. The discursive and institutional constraints on discourse will
thus be examined: not only because of a quasi de-ontological necessity (i.e. not
saying just anything about just any discourse), but also because of a practical
necessity. The contents that unfold before our eyes through instituted discourses
have existence and meaning – and can be interpreted – only by means of an
acknowledgement of the modes of production and pre-existing constraints, on
the one hand, and of those created or re-created by discourse, on the other.
In order to achieve the objectives of this chapter, I shall first concentrate
more specifically on speaking out within the United Nations, highlighting the
way interactions occur and their prevailing modes of regulation. This section
is based on the observations I was able to make within the Sub-Commission
for the Prevention of Discrimination and the Protection of Minorities. I shall
90 Production of discourse and institutional constraints: the search for objectivity

also highlight the principles concerning the management of languages within


the United Nations, and reveal the procedures that lead to the identification of
official languages and working languages.
Furthermore, in the following section, I shall focus more particularly on the
study of one document and its discursive route, and the modes of constraint
present in the constitution of “official” documents. This represents a window
of investigation that does not in any way claim to be exhaustive or applicable
to all forms of UN documents. The choice of a summary record to illustrate
institutional discursive procedures was primarily motivated by the pervasive
presence of this type of document within the United Nations, as well as by the
status of such a document: it is both an account of the institution’s oral debates
and an official document. It will therefore allow us to demonstrate the method
of discursive production as well as the relations between discussion, written
recording and officialdom. Through this illustration, we shall see the nature of
the conceptions of language and discourse in the United Nations.
All of these sections will allow me to conclude by returning to the basic
question of this chapter: the status of bureaucratic discourses in general and UN
discourses in particular. I shall then show the kind of interpretation that can be
made, as well as the limitations inherent in this work.

2. From speech to text: the regulation and production


of discourses at the United Nations

Examining discursive processes at the United Nations presupposes a focus on


(1) the interactional component of institutional discourses, and (2) the textual
dimension as the result of a complex process of negotiation, re-contextualization
and rewriting. In a way, these two dimensions lay down a methodological frame-
work for the understanding of institutional discourses. They also allow us to
pursue our study of the status of the documents of international institutions. The
emphasis here, on synchronic and diachronic aspects, contributes to the estab-
lishment of this work on the foundations of discursive historicity. They allow
us to understand the different stages of the construction of documents and, in
this way, allow us to advance in the understanding of the discursive ideology of
institutions. It is now necessary to approach the nature of these new documents –
what they are and what they represent. This is the objective of the next section.
The interactional and textual components of discursive production in in-
ternational organizations convey an idea of some issues at play, but are also
fundamental to an interrogation of the status of the discourse of international
institutions. I now intend to undertake a deeper study on the way discourses are
From speech to text: the regulation and production of discourses 91

produced within the United Nations by focusing more specifically on (1) the
observations I was able to make within the Sub-Commission, (2) established
knowledge about the field connected to the production of documents and (3)
an examination of a particular type of document. The following section should
therefore allow us to continue the investigation of the status of discourse, and
the ideologies relating to discursive practices.
The discursive processes that I shall discuss below include two key dimen-
sions of institutional discourse: the constraints placed on the production and
practices of discourse, and the institutional implications of these constraints.
First of all, I shall focus on discussion and speaking out, i.e. on the institutional
regulation of discursive acts. This will involve describing the way in which
verbal interactions are organized and sequenced in the Commission’s sessions.
In relation to the above-mentioned regulation, I shall then consider the man-
agement of linguistic diversity within the United Nations. I shall show how
linguistic diversity is approached within the institution, and how it influences
the possibilities and limits of discussion. These two sections pertain to discourses
as they are presented during UN debates and discussions.
While oral discourse and the associated oratory contestation are the pre-
ferred mode of UN debates, this discourse is only legitimate when it is formally
recorded in writing. This leads me to consider the specific characteristics of UN
documents by first of all focusing on the ideology of documentation, and then
continuing with a study of a particular document, i.e. summary record. The doc-
ument is of particular interest for the objectives of this chapter, as it combines
the interactional elements of debates and their transformation into a written text
of official value. The study of the document’s discursive and institutional trajec-
tory will thus allow us to grasp some of the institution’s conceptions of language
and discourse, and to look into the effects of such conceptions on the contents
of discourse.

2.1. Speaking out at the United Nations: some discursive dimensions

Here, I shall refer to the constraints on discussion that can be observed within
the United Nations. This section is primarily based on the observations I was
able to make on different occasions within UN committees and commissions
concerned with human rights over a period of three years. I would like to describe
the development of these sessions and the kind of interaction that unfolds. I shall
discuss the spatial, temporal and organizational system that determines the act
of speaking out. This system is important for the discussion: it involves, in fact,
a space of performance (in the sense of Goffman 1959) where places and roles
are assigned within a given area. In this way, speech is constrained but also made
92 Production of discourse and institutional constraints: the search for objectivity

possible – and, therefore, available – by the system put in place. I shall then show
how these observations led me to think about the role of language within the
institution, and why written discourse occupies such a preponderant – but also
such a defining – place.
I shall focus specifically on one space: the Sub-Commission for the Pre-
vention of Discrimination and the Protection of Minorities. The reason for the
selection of this space is the place that it occupies in this entire study, as it is the
chosen place for debate on minorities (cf. Chapter 2). It is also the only space
where the different agents of the production of knowledge about minorities
are gathered together: NGOs, experts, state representatives, writers, translators,
listeners, journalists. Focusing on the Sub-Commission and its interactional
practices, therefore, will allow us to understand the different stratifications and
hierarchies.10
In scholarly literature on international institutions there is debate about the
role of language. Some consider that written discourse is the basis of the ac-
tivities of rationalization associated with the kind of axiological bureaucracy
characteristic of UN discourses; for others, everything happens in interactional
processes, written discourse being an artifact and a simple transposition that
goes beyond the language interactions. I do not wish to re-open the debate here,
particularly as the primacy of one over the other does not seem to me to be the
crucial issue in the status of discourse. My aim, rather, is to show that both oral
and written discourses are subjected to constraints of different kinds and that
these constraints, without doubt, convey the institutional ideology of discourse.
On an empirical level, it is worth noting that written discourses count as official
documents in the institution; in many cases, however, the written discourses are
the result of prior oral discourses (cf. the section below concerning Summary
Records).
The oral discourses occur during sessions held in a large hall in the basement
of the main United Nations building in Geneva. The hall has a very high concrete
ceiling, with a space below and a space above. The latter forms the upper floor
of the hall and is reserved for interpreters in glass booths that are reached via
the upper floor, not the hall. The glass booths look out over the whole hall and
are arranged in a half-circle. The interpreters can see all the members and their
view is directed towards them. The upper section also contains a small space
with seats and a large window looking out onto the hall. This space is intended
for visitors who are taking a guided tour of the United Nations Headquarters in
Geneva. Visitors do not enter via the hall but, like the interpreters, they reach
the upper floor by a stairway leading there directly. Generally, visitors only stay
for a little while before leaving to continue their tour. The upper floor is thus
within the hall but clearly separated by height and the fact that there is no direct
From speech to text: the regulation and production of discourses 93

access from the floor below. The interpreters’ and visitors’ booths are the upper
part of the trapezium formed by the hall.
The main floor is in fact a huge round trapezium and is arranged very pre-
cisely. Four main areas can be distinguished, demarcated within the space and
intended for different purposes. The first area is situated at the far end of the
hall, from the perspective of those entering this large space. Here there is a
big, slightly curved table. This is the only space that faces the main door and
allows a view of the whole hall and all the spaces it contains. This space entirely
occupies the narrowest part of the hall. Behind the table is a similarly curved
wall, with a door on each side. Access to the table and to each of these doors
is gained by spaces to the right and left of the table. The space here is reserved
for the President and the Secretary, as well as for the Special Reporters who
are defending a report. It faces another space, slightly closer to the main entry,
consisting of two large tables facing each other, perpendicular to the space de-
scribed above. The people at these tables sit opposite one another. This space is
reserved for the writers who take notes during the sessions, and the secretaries
of the Sub-Commission who co-ordinate the documents.
The third space is situated in the centre of the hall, next to the writers’ space
and actually surrounding it to a certain extent. It is formed in semi-circular
rows, the rows becoming increasingly convex from front to back. Each row is
one step higher than the one in front, the highest row being the last one and the
closest to the main door of the hall. In the front rows, chairs attached to the floor
demarcate allocated places, with a sign on the table in front of each chair. This
is the space reserved for diplomatic representatives of the UN Member-States
who are signatories to the United Nations Charter. Behind these rows, is the
space intended for members of NGOs who take part in discussions during the
Sub-Commission’s sessions. They speak from here, facing the President’s table,
but with their backs to the state representatives. Finally, to the side, there is a
separate space in the form of an alcove, with seats but no tables: this is reserved
for observers and journalists.
The stasis of this description, however, does not give an account of the move-
ments of the different agents present in these areas. The movements are relevant
in that they testify to the forms of interaction peculiar to these sessions. The
sessions generally last for about three hours and those who are present do not
stay in the same place all the time. I shall attempt to describe the movements
that I was able to observe.
First of all, there are movements determined by the specific discussion. When
a member of the Sub-Commission presents a report, he moves from his place in
the semi-circle towards the President’s table. From here, he presents his report
and responds to the questioning of his colleagues and Member-State represen-
94 Production of discourse and institutional constraints: the search for objectivity

tatives. When state representatives speak, they remain in their allocated space.
The NGOs are generally gathered in the back rows of the semi-circle. From
here, they present their speeches, moving only to have access to a microphone.
These movements are very clearly regulated by the President, the agenda and
the functions of those taking part in the debates.
Other kinds of movements, still connected with the management of sessions,
can also be observed. These are movements by the writers and administrative
personnel responsible for the transmission of documents and the gathering of
information relevant to what has just been said.
Alongside all these movements, are others that are not determined by the
President of the session, and that occur on the fringe of the interactions of the
session itself. These are movements to and from the entrance, in a constant
coming and going, involving all those who are present. Outside the hall, there is
a café that is like a kind of waiting-room, where all sorts of people can be found.
There are also movements of NGO representatives towards particular experts or
state representatives.
These movements may, at first glance, appear to be chaotic, especially as
they occur while the session and its spoken interactions are taking place. How-
ever, they include language interactions that remain inaccessible and, in fact,
separate from the official discourses. This is one of the other characteristics of
the saying of international institutions, one that tends to distinguish between
official discourse and official discourses and to separate what happens on the
surface (i.e. accessible) and at depth (i.e. inaccessible).
The different spaces within the main space, the movements and the discursive
regulations clearly demonstrate the existence of distinct sections and a hierar-
chy of both function and discussion. During the Sub-Commission’s sessions, the
control of discussion is, in effect, given to the President who manages the agenda
and the timing of discussions, as well as the opening and closing of discussions.
This management does not, however, occur at the whim of the President, it is
controlled by clearly established rules. These rules have a specific bearing on
two aspects: (1) the order of discussion and (2) the time allocated. All discourse
officially spoken in the context of UN commissions, even if it assumes the ap-
pearance of dialog, is basically in the form of monolog. The speakers, including
experts, have a limited amount of time in which to speak, represented literally
by the imposing presence of a chronometer that indicates the passing minutes
and seconds. The President interrupts the speaker once the time allotted to him
has passed. These timed conditions are supported by a particular arrangement
for speeches. The NGO representatives who wish to speak have to enter their
name in a list of speakers, which does not necessarily follow a thematic order.
While the time for their speeches is limited, experts are allowed to intervene
From speech to text: the regulation and production of discourses 95

whenever they wish by asking the President if they may have the floor. They
may also indicate a longer speech relating to an agenda item, as is the case in
the extract that will be examined here.
We find ourselves faced with what some ethnomethodologists have identified
as the characteristics of institutional functioning. For example Boden (1994: 47),
with regard to business meetings, focuses the investigation of institutional dis-
course mainly “on the nature of organizing and on temporal and sequential
details of organization”. The temporal and sequential elements are included
within the spatial elements. They provide discourse with a form of organiza-
tion of contents (pre-determined order of speakers, discourses basically in the
form of monolog, controlled language interactions), as well an organization of
power relations (different amounts of time allocated according to the speakers’
functions, the possibility of intervening in debates, the right of response given
to Member-States when they are involved, etc.).
This overview of interactional practices would not be complete without an
examination of the management of linguistic diversity. While I have so far fo-
cused on the spatial and conditioning systems, it seems important to understand
that, among these systems, there are issues relating to the sequence of inter-
actions as well as to the regulation of the languages of expression within the
Commissions. We shall see that, behind the management of linguistic diversity,
there is also a control of the saying arising not only from the actual structures
of the institution, but also from the prevailing power relations.
It was during the Conference of San Francisco (cf. Chapter 2), the birth
of the United Nations, that the choice of official and working languages was
made – very early, therefore, in the institution’s history. The five official lan-
guages chosen were Chinese, Russian, Spanish, English and French. The choice
of languages is not innocuous, and clearly demonstrates the different power
relations of that time. The presence of Chinese was justified by treaties with
China, this language’s position in the world and China’s role as an ally in the
Second World War. Russian, too, was justified as the language of the Allied mil-
itary victory and Russia’s powerful presence in the actual establishment of the
United Nations. The presence of Spanish can be explained by the large number
of Latin American countries that have adopted this language. French has, for
a very long time, been considered as the language of diplomacy; this and the
French colonization of African and Asian countries ensured that French had a
significant presence on the world stage. Finally, English unites all the Common-
wealth countries and the United States; its place was also clearly signaled by its
privileged role in the resolution of the conflicts linked to World War Two.
The conference of San Francisco also marked the emergence of the distinction
between working languages and official languages. The category of official
96 Production of discourse and institutional constraints: the search for objectivity

languages presupposes that the different participants within the UN organs are
able to use one of the five languages, and the simultaneous translation would
also be in one of these five languages. As Tabory (1980: 9) states, “simultaneous
interpretation is the system whereby a statement made in any official languages
is concurrently rendered in the other official languages by interpreters”. Working
languages, on the other hand, mainly concern the production of documents, i.e.
the translation and production of official texts (reports, Summary Records, etc.).
Practices relating to the diversity of languages have been modified over the
years. In 1973, the General Assembly, at the request of the nineteen represen-
tatives of the Arabic-speaking Member-States, adopted a new official language
and working language. This proposition met with some resistance, particularly
on the part of General Secretariat, for reasons of cost and time. However, the
Arabic-speaking Member-States stressed several aspects which supported their
request:
1. The inclusion of Arabic was essential in terms of the pursuit of cultural
universality in the United Nations, given that Arabic is the official language
of nineteen Member-States.
2. Arabic at the time was spoken by 120 million people. It is the language of
the Koran, thus including an estimated 700 million people.
3. Arabic is one of the official languages of the Organization of African Unity,
and also one of the languages of the University of the United Nations.
Furthermore, the Arabic-speaking representatives proposed to meet the costs of
the first three years of translation and interpretation occasioned by the accep-
tance of Arabic as an official language in the United Nations. This request was
supported by many countries, while the financial proposition ensured that other
States supported this cause. Thus, on 18 December 1973, the General Assembly
in its Resolutions 3190 (XXVIII) and 3191 (XXVIII) accepted the proposition
of the Arabic-speaking countries.
The General Assembly,
Recognizing the significant role of the Arabic language in preserving and dissem-
inating the civilization of man and his culture,
Recognizing further that Arabic is the language of nineteen Members of the
United Nations and is a working language in such specialized agencies as the
United Nations Educational, Scientific and Cultural Organizations, the Food and
Agriculture Organization and the United Nations, the World Health Organization
and the International Labour Organization, as well as an official and working
language of the Organization of African Unity,
Aware of the need to achieve greater international co-operation and to promote
harmonization of the actions of nations as envisaged in the Charter of the United
Nations,
From speech to text: the regulation and production of discourses 97

Noting with appreciation the assurances of the Arab State Members of the United
Nations that they will meet collectively the costs of implementing the present
resolution during the first three years,
Decides to include Arabic among the official and working languages of the Gen-
eral Assembly and its Main Committees and to amend accordingly the relevant
provisions of the rules of procedure of the Assembly.

For the purposes of my work, I shall focus on the following argument. The
management of languages constitutes a material or physical platform by means
of which conditions of the saying are expressed, as well as the subsequent power
relations which tend to give the language an official status, a symbolic power and
legitimacy. In this way, the discursive, political and judicial orders are united. We
shall see, in what follows, the importance of this order in the various discursive
spaces of the institution.
The management of languages and the constraints on talk, however, only
constitute one aspect of the institution’s discursive elements. Oral discourse has
only a weak legitimacy11 if it is not recorded and made official by the interme-
diary of written documentation. The mnemonic traces of debates, decisions and
other resolutions materialize in the form of various official texts. These texts can
be referred to and used as the basis of discussion, study, etc. It is the dimension
of writing, central to my investigation as a whole, that I now propose to question
and clarify by emphasizing the place and the role of document production within
the United Nations.

2.2. The United Nations and the production of documents12

From the beginning, the United Nations has taken steps to produce documents
on the basis of which discussion can occur (for example, expert reports), as well
as documents which give an account of the discussion (Summary Records).
We should note that the documents of the United Nations are of different gen-
res, from judicial texts (for example, international instruments) to resolutions
via expert reports and summary records. Most of the documents are accessible
to the public and are not subject to copyright. “The United Nations does not
normally retain copyright, its policy being rather to facilitate dissemination of
the content of its publications as widely as possible by all reasonable means.
General retention of copyright would give an impression of restriction and of
setting up a procedural barrier – namely, the need to request permission to use
material. Exceptions to the general practice have however been made in the
case of certain publications” (United Nations ST/DCS/2, Article H6 p. 495).
We can ascertain here the seriousness of this commitment and the necessity of
98 Production of discourse and institutional constraints: the search for objectivity

conveying an open and non-restrictive image of the world, expressed in the very
foundations of the production and diffusion of documents. Along the same line
of thought, Piganiol (1974) emphasizes the fact that the “documents sont ex-
haustifs et reproduisent les travaux ou les débats de conférences ou de réunions
de caractère international. Ils doivent être fidèles car l’action des OIG [Organisa-
tions InterGouvernementales] doit être transparente” [documents are exhaustive
and reproduce the discussion and debates of international conferences and meet-
ings. They have to be accurate because the action of IGOs (Inter-Governmenatal
Organizations) has to be transparent] (Piganiol 1974: 18; author’s emphasis).
The United Nations has often reiterated the importance of documents in the
functioning of the institution. Thus, in 1980, the Under Secretary at the time,
Davidson Nicol, while speaking at the opening of a symposium on international
documentation, referred to a statement by the Secretary General: “Documents
are the most important working tools of the Organizations, and any excessive
limitations imposed would risk creating impediments to the discharge of the
United Nations and impairing the possibility of attaining its objectives” (xii).
The importance given to documents, however, remains problematic. Indeed, the
United Nations has to face organizational and financial constraints relating to the
constant increase of these documents. As early as 1970, in a note from the Sec-
retary General (A/7576 par 2) mention is made of the increase in documentation
produced within the organization by different general sections: from 400 mil-
lion pages in 1964 to 600 million pages only three years later. This exponential
growth gave rise to discussion and to a general consideration of documentation:
the challenge was to maintain the importance of documents while limiting their
number. Two symposia on international documentation, therefore, were orga-
nized with the mandate of producing recommendations on the production of
documents within international institutions. Evidently, the United Nations was
at the center of discussion at these symposia.
Implied in this investigation is the question of the reason for the intensive and
vast documentation (for whom are these documents intended, and what is their
importance?). This highlights the tension between the dissemination of infor-
mation, conciseness and accuracy that is constantly present in the context of the
United Nations. Finally, the question of the legitimacy of the institution arises:
documents play an important role in the institution, but they are also the area
in which financial issues and the significant increase in the funds necessary to
maintain the system of documentation may well provoke criticisms of the institu-
tion itself. In the end, the various documents consulted seem to indicate that UN
documentation has to be a tool of good functioning, an element of institutional
transparency, and a means of memory. Many studies by archivists therefore insist
on the value of these documents for research, especially in the area of history.
From speech to text: the regulation and production of discourses 99

While the United Nations is of significant interest because of the documen-


tary elements of its structures, the actual production of documents – by which
I mean the manner in which written texts are produced – constitutes an essen-
tial element of observation, in order to reveal the discursive ideology of the
institution and to examine the status of UN discourses.

2.2.1. The institutional regulation of discourse:


example – the summary record
We should therefore pursue and extend our investigation by going further back in
the production of discourse and envisaging the writing process as a constitutive
process of discursive legitimization. All discourse is a form of construction and
deconstruction that should be interrogated: the power play in what Urban (1996)
calls “entextualization”, can be seen as the reflection of an underlying institu-
tional ideology, which is manifested by means of various constraints, discursive
constraints among them. For Smith (1990: 218), “The formality, the designed,
planned, and organized character of formal organization, depends heavily on
textual practices, which coordinate, order, provide continuity, monitor, and or-
ganize relations between different segments and phases of an organizational
course of action, etc.” Texts, therefore, are an essential part of the organization’s
bureaucracy and pursuit of objectivity.
As we have seen, no discursive activity – such as discussion during a commis-
sion session, the presentation of expert reports, summary records, the proposal
of resolutions – emerges from an uncontrolled, creative spontaneity. On the
contrary, these different activities are subject to a codified writing or speaking
process, by means of institutional control – timing of discussion, type of dis-
course, pre-established formulae, genre, etc. With the emphasis being placed
on the processes of discursive production, discourse can be considered as the
product of a collection of phases. At the same time, these phases determine the
type of discourse produced, according to the institutional ideology. We should
then examine the role of the production of texts in relation to the ideology of
the institution, as well as the role of a particular conception of discourse and
language in the functioning of the institution. These two axes are closely con-
nected in that they are both part of the very existence of the institution. Indeed,
it is difficult to think of a bureaucratic institution without the production of
texts and, at the same time, it is incongruous to think of discourse without an
understanding of it within the institutional context of its production (cf. Smith
1990 above).
The texts that are produced (but also the constraints/codification of their pro-
duction) can therefore be seen as a constitutive medium of the institution, which
100 Production of discourse and institutional constraints: the search for objectivity

permits it to be seen but at the same time legitimizes it. I consider that the em-
phasis on the conditions of discourse production (Heller and Labrie 2003) also
raises a methodological question, which makes it necessary to consider the text
in the totality of processes which accompany and create it, in order to achieve
some understanding of the ideology of institutions and their discourse (Heller
2002b). This reflection should also allow an examination of the status of dis-
course by means of a critical perspective, in that the techniques of the knowledge
production and discourse control must be shown (Martin Rojo 2001: 59).
In order to do this, I shall focus on a specific type of document: the summary
record. The reason for this choice is that this document’s function is to give
an account of the discussions in the United Nations: it is a significant and
common document in all commissions. Furthermore, the complexity of the
writing processes with regard to these documents allows us to bring to light the
various discursive phases and transformations relevant to their existence.
Summary records are documents that play an important role in the function-
ing of the United Nations: they are the written trace of discussions that occur in
different Commission sessions. As far as genre is concerned, they are related to
minutes. They are subject to strict rules of development, set out in manuals of
précis writing. The writing of summary records is the responsibility of linguistic
departments (French and English sections) located in the General Headquarters
of the United Nations. The Department of Translation is involved when trans-
lations of summary records (SR) from English to French or French to English
are required. In effect, the French and English translators work together in the
development of summary records. The original SRs are then translated either
into French or into English. The translation is carried out systematically. There
are generally three or four writers involved in the process of writing. Three
phases in the writing of summary records can be distinguished, as outlined in
the manual. The first stage is the time of preparation during the session (reading
of the agenda and associated documents, etc); the second phase is the taking of
notes in the context of the session; the third is the writing of the actual sum-
mary record. The processes of revision and translation follow. When in doubt,
the writers are able to resort to the audio-tapes, even though the manual clearly
stresses the prevalence of note-taking. In order to successfully complete their
task, writers have a manual of the rules of writing. This manual is the object of
the analysis that follows.

2.2.2. The summary record: from desire for objectivity to necessary selection
The way in which I shall go through and “read” the document Instructions for
Précis-Writers13 will be articulated around different tensions that seem to be
From speech to text: the regulation and production of discourses 101

subordinate to the issues that these documents constitute for the institution. A
written record of debates and an accurate overview of discussions and decisions
imply the existence of principles that allow the institution to legitimize these doc-
uments. By this I mean that, without these principles, the institution is not in a po-
sition to claim that these documents are official, and thus to maintain the idea of
transparency. This is what I shall illustrate in the discursive analysis of the “man-
ual”, beginning with the idea that the way that the manual itself is written and its
contents allow us to examine the ideology subjacent to the writing of documents.
In terms of graphics, the manual is presented like all official documents of the
United Nations (logo, UN symbol of identity, font, page setup, color of the cover,
etc.). There is no mention of an author, the only official speaker/writer being
the “United Nations”. The manual is organized in different thematic sections,
each of these being divided into subsections. The paragraphs are numbered
continuously, as in all UN documents (except for international instruments,
which are formatted in the manner of usual legal texts). The manual thus has an
official appearance.
In order to establish a codification permitting the writing of summary records,
the manual gives – before anything else – a definition:
1. Summary records are official documents constituting the permanent records
of the United Nations bodies for which they are authorized. They are intended
to provide a clear, concise and accurate picture of the proceedings. They sum-
marize the views of the speakers and record the decision taken.

(INSTR/1/Rev.5)

As we can see in this definition, the necessity of transcribing debates in a “clear”,


“concise” and “accurate” manner immediately implies a necessary objectivity
in the writing process. However, there is also a tension in the definition itself.
The lexical elements are discursively placed at a symmetrical level, in the posi-
tion of adjectives describing the metaphorical noun “picture”. Parataxically, the
definition of summary records then specifies their conceptual function (“sum-
marize the views of”), a function which – potentially anyway – dispenses with
formal repetition because it is the underlying ideas of the discourse that are be-
ing recorded. At the same time, this reinforces the tension and the juxtaposition
of the qualifiers “accurate”, “concise” and “clear”). It also shows the tension
between the legitimization of the document and the necessary selection of in-
formation and, in the definition itself, outlines a particular vision of language
which will be elaborated in the manual.
These fundamental principles appear even more clearly in the description of
the qualities essential not only to the summary record, but also to the précis-
writers:
102 Production of discourse and institutional constraints: the search for objectivity

Essential qualities of a summary record


27. It is worth remembering that a summary record is called in French “un compte
rendu analytique”, analytique being the operative word. Précis-writers should
extract the substance of the discussions, taking into account the overtones,
undertones and political implications. They should strive for three essential
qualities:
(a) Accuracy;
(b) Conciseness, while retaining proper emphases and correct transitions;
(c) Clarity, especially in recording decisions.
(INSTR/1/Rev.5)
Both the definition and the description of the essential qualities of summary
records give an excellent preview of the rules that determine their production.
It is these terms that will form the basis of analysis – that is, the discursive
examination of lexical elements – in view of the importance of the definition
and its place in the manual as a whole.

2.2.2.1. Exactness and accuracy versus conciseness and clarity


The manual systematically and concurrently uses the terms “exactness/exact”
and “accurate” together with “conciseness/concise” and “clarity”:
7. Précis-writers should resort to the speaker’s original words when they record
a proposal or an amendment and when there is no shorter or equally clear way
of reflecting the speaker’s views accurately. Generally speaking, however, a
paraphrase will be more concise, provided that the exact meaning and emphasis
are retained. Adjectives and adverbs are useful for conveying nuances when
material is compressed. Faulty syntax should, of course, be corrected.
(INSTR/1/Rev.5)
This paragraph highlights particularly clearly the problems and ambiguous re-
lations among the three pillars of the SR. We see rules governing the repetition
of the speaker’s original words (a) in the context of a specific genre (“a pro-
posal or an amendment”) and (b) when there is no possibility of conciseness
(“no shorter”) or clarity (“no . . . equally clear”) in the paraphrase that should
convey the speech “accurately”. Here we have a directive that stipulates the use
of the speaker’s own words and governs this use. It appears, therefore, that the
repetition of the speaker’s words should only occur in certain situations, i.e.
when the clarity or conciseness of the reformulation would not be as effective
(in terms of the logic of the SR) as the speaker’s own words. This is confirmed by
the following statement, introduced by the phrase “Generally speaking” and the
connective “however”, two discursive movements that indicate a passage from
the particular to the general. While the work of transposition necessary in all SR
From speech to text: the regulation and production of discourses 103

writing is reiterated here, it is also specified. The conception of the paraphrase as


allowing conciseness without excluding the “exact meaning” of the original re-
veals and highlights once again the paradox between conciseness and accuracy.
It is therefore interesting to look more closely at the signification of these terms.
The French Manuel, in a much more specific manner, explains what is meant
by the notion of accuracy. This is at the end of the manual, in the section about
aspects of style:
261. L’expression doit être directe, précise et parfaitement correcte. Il convient
d’éviter les formules vagues et ambiguës, les locutions propres à une langue
étrangère et les expressions journalistiques ou par trop idiomatiques.
(SFTR/3, p. 72)
[The expression must be direct, precise and perfectly correct. The following
should be avoided: vague and ambiguous formulae, sayings peculiar to a for-
eign language, journalistic and overly idiomatic expressions.]
Here, emphasis is placed on the intrinsic qualities of the expression used in SRs.
The qualifiers – directe, précise and parfaitement correcte [‘direct’, ‘precise’and
‘perfectly correct’] – refer to the first pillar of the SR, while the rest gives an idea
of what must be avoided: above all it also expresses a subjective standardization
of language. The terms of the Manuel refer to a conception of language as
an object, by means of which the “reality” of what was said can be accurately
recovered. This positivist view of discursive reality seems to be fundamental and
necessary, which is demonstrated by the insistence on the rigor of the writing
process by means of the notion of accuracy. This view of language is, to some
extent, anchored in the idea that language is transparent, and that its use is
fundamentally and almost exclusively to transmit information.
This should be modulated by the fact that the Manuel acknowledges – for-
mally anyway – the difficulty of immediately achieving objectivity in terms of
selection, as we can see in the extract below:
3. Par définition, le compte rendu analytique ne doit, en principe, retenir que
1’essentiel du débat, en omettant tout ce qui est superflu. Dans la pratique, la
détermination de ce qui est essentiel et doit, à ce titre, figurer dans le compte
rendu est, dans une certaine mesure, affaire de jugement et ne se prête pas
à l’énoncé de règles absolues. Il arrive souvent, en effet, que des points en
apparence mineurs se trouvent après coup revêtir une grande importance et
doivent être consignés dans le compte rendu.
(SFTR/3, p. 2)
[By definition, the summary record must only retain the essentials of the debate,
omitting everything superfluous. In practice, the determination of what is essen-
tial, and therefore must be included in the summary record, is a matter of judgment
and does not lend itself to the statement of absolute rules. It may happen, indeed,
104 Production of discourse and institutional constraints: the search for objectivity

that apparently minor points are later found to have great importance and have to
be recorded in the summary record.]

The discursive structure of this paragraph tends to distinguish between theory


(par définition ‘by definition’) and practice (dans la pratique ‘in practice’).
It should be noted that the reformulation of the definition omits the mention
of accuracy, putting the accent on l’essentiel (‘the essentials’)14 and clearly
reiterating the idea that superfluity has no place in the SR. On the other hand,
the practical dimensions come up against the question of jugement (‘judgment’)
and the impossibility of complete codification. The last statement highlights the
dimension of après-coup (‘later’). This relates to the notion that judgment is not
omnipresent in the précis-writer’s work, that it is not possible to make immediate
judgments with any certainty about the pertinence of particular information.
The acknowledgement of a very minor form of subjectivity (although this term
is never used in the Manuel) is moderated on two levels. On the one hand,
everything seems to go on as if the “truth” does exist somewhere but is not
immediately accessible, or may reveal itself to one person and not another. Thus,
the balance conveyed by this paragraph disappears in favor of an argumentative
interaction between, on the one hand, the absence of règles absolues (‘absolute
rules’) and the notion of an affaire de jugement (‘matter of judgment’) and, on
the other, the degree of “importance” of the selected information. Furthermore,
all the rules that the rest of the Manuel provides for the précis-writer can be seen
as intending to minimize, as much as possible, the risk of arbitrary judgment. The
rules are discursively constructed by means of an enumeration of the principles
that should determine judgment, tending towards a concern with the adherence
to the réalité (‘reality’) of the oral discourses. Language norms are part of this
process, which is to ensure that the text is purged of the messiness that would
destroy its clarity. There is, therefore, no room for ambiguity, and all paraphrases
must demonstrate this by using purified language. The stylistic codification also
reflects a concern for discursive homogenization:
266. Il convient d’employer une formule du genre de celle-ci pour les réponses
à une intervention remontant à une séance précédente: “En réponse [ou:
répondant] à une question posée à la séance précédente par le représentant
de la France . . . ” [et non: “En réponse au représentant de la France ”)

(SFTR/3, p. 73)

[It is advisable to use a formula of this kind for responses to an intervention


referring to a previous session: “In response (or: responding) to a question asked
in the previous session by the representative of France . . . ” (and not: “In response
to the representative of France”)]
From speech to text: the regulation and production of discourses 105

We can see that accuracy also requires codification: its function is to make the
text clear and limpid, without any possibility of fausse (‘false’) interpretation,
thereby reflecting a strongly normative view of language: “say/do not say”. In
fact, the whole manual gives this type of linguistic codification a dominant
position, with regard to formulae (par. 266) and the use of lexemes (par. 268):
268. La liste des verbes et expressions verbales ci-après (avec indication de
leurs équivalents fréquents en anglais et en espagnol) peut être utile au
rédacteur, qui pour les choisir, fera, bien entendu, preuve de discernement
et, en particulier, tiendra compte de la portée des nuances de l’intervention.
(SFTR/3, p. 74)
[The following list of verbs and verbal expressions (with indications of their
common equivalents in English and Spanish) may be useful to the précis-writer
who, in choosing them, will, of course, demonstrate discernment and, in particular,
will take into account the significance the speech’s nuances.]
There follows a list of concordant terms and their possible variants, which again
emphasizes the relation between language and thought, thereby stipulating that
it is more important to find verbs that correspond to the speaker’s thought rather
than to the terms he used himself. We see this in the following example:
264. Les rédacteurs doivent s’attacher à employer des verbes qui correspondent
le plus exactement à la pensée de l’orateur.
(SFTR/3, p. 73)
[Précis-writers must apply themselves to using verbs that correspond most accu-
rately to the speaker’s thought.]
Finally, at a stylistic level, the choice of tense forms (past tense for English SRs)
and the use of indirect speech – understandable in the genre of summary records –
reinforce the necessary linguistic homogenization. The summary record is also
characterized by the total absence of the person who actually produced the
written text. The writer disappears in favor of the speaker’s words. No document
is signed and all trace of the writer’s presence is banished.
What is signified by the co-existence of a stylistic codification that is intended
to purify language and the concern of accuracy? A priori one may well think
that it signifies a fundamental contradiction and any linguist would point out
that this is a simplistic and partial view of the complexity of language. However,
this discourse makes sense when it is seen in terms of institutional necessity. If
SRs are considered official documents, they must be situated in a logic of le-
gitimacy – if not, they are null and void. All legitimization implies a discursive
constraint in the very process of being consigned to a text, even if this comes
up against a fundamental obstacle: the basic subjectivity that the writer must
confront in his choices.
106 Production of discourse and institutional constraints: the search for objectivity

2.2.2.2. Judgment as the supreme quality


The manuals stress the various responsibilities of the précis-writer. He must
prepare for sessions by perfecting his general knowledge, keeping in touch with
world developments, and by knowing the different subjects dealt with during
sessions. These directives constitute the ‘continuous’ training of the précis-
writer, as well as the competencies that s/he has to demonstrate in the writing of
SRs. It is appropriate to also highlight the importance accorded by the manuals
to the notion of discernment or judgment. It is interesting to explore this quality
further, insofar as it gives us an idea of the expectations of the institution with
regard to writers of the texts:
20. De toutes les qualités dont on demande au rédacteur de comptes rendus de
faire preuve, la plus importante est sans doute le discernement. Un rédacteur
expérimenté est à même de faire le départ entre ce qui est important et ce qui
ne l’est pas, entre ce qui doit figurer dans le compte rendu et ce qui peut être
omis. Il est en mesure d’établir un compte rendu clair, fidèle et bien composé,
où subsiste l’essentiel débarrassé de tous les éléments superflus.
(SFTR/3, p. 6)
[Of all the qualities we require of a précis-writer, the most important one is, with-
out any doubt, discernment. An experienced précis-writer is able to differentiate
between what is important and what is not, between what should appear in the
summary record and what can be omitted. He is able to establish a clear, accurate
and well-structured summary record, where only the essential remains, divested
of all superfluous elements.]
While the notion of accuracy is mentioned here again, it nonetheless remains
the case that the précis-writer has to make choices and, in order to make choices
without ‘deforming’, he must have the requisite quality of discernment. This,
I believe, is directly connected to the tension, referred to above, between con-
ciseness and accuracy/exactness. Discernment is the quality that permits the
selection of relevant information by eliminating – although the use here of the
term “débarrassé ” (‘divested’) seems even more powerful – “les éléments su-
perflus” (‘superfluous elements’). The decision resides with the précis-writer:
the power of selection is in his/her hands, but his/her decisions must be made in
an “objective” manner. The identification of “discernement” as the quality that
allows both accuracy/exactness and conciseness/essence resolves the paradox
while at the same time maintaining it! The paradox becomes more pronounced
when we see, in the manual, the mention of a scale of evaluation for the treatment
of different speeches.
From speech to text: the regulation and production of discourses 107

2.2.2.3. Difference in treatment


In the English version (1994) of the manual for writers of summary records
(which is actually the most recent one published, and not yet available in French),
we find some principles intended to guide the précis-writer in determining how
much importance to give particular speeches:
33. In principle, the goal of the précis-writer is to produce a balanced summary
in which speakers are treated equally. There are nevertheless circumstances
in which it is appropriate to give fuller or briefer treatment than normal. To
determine the extent of the coverage to be given to a statement, précis-writers
should ask themselves three questions:
In which body is the statement being delivered?
Who is speaking?
What agenda item is being discussed?
(INSTR/1/Rev.5, p. 7)

The coverage of sessions in the summary record depends on the following three
dimensions. The manual states that the discussion in certain “legal bodies”,
such as the Sixth Commission or the Commission on International Law, must
be summarized with a great deal of caution. Furthermore, the function of the
speaker infers different types of treatment. For example, the speeches by the Sec-
retary General “receive very full coverage” with writers only omitting repetition
and “padding” and, if necessary, “tightening up the language”. The speeches of
state representatives included in a report also require substantial treatment in
summary records. Finally, new agenda items and those in the process of being
constituted require more attention than recurrent items.
In summary, one can see that these manuals allow us – by means of the pillars
of accuracy and conciseness and various associated directives – to understand
the institution’s relation to language. The judgment of the writer is the concept
that allows accuracy and precision to co-exist with the selection of information.
In fact, the institution faces a double constraint: objectivity and availability
of funds. This is manifested by a necessary control of documents and can be
observed notably through the rules established for the writing of a summary
record. Beyond the strictly linguistic question, there is the more general question
of the control exercised by the institution in order to function correctly and
to limit the cost of the increasing number of papers in terms of the budget.
Behind the ideology of documentation, there seems to be an idealization of
language and objectivity, a necessity relating to the process of legitimization
of the institution. Without this idealization, the entire scaffolding of documents
will collapse, allowing for doubt, subjectivity and the untenable arbitrariness of
official documents.
108 Production of discourse and institutional constraints: the search for objectivity

An examination of the instructions relating to the writing of summary records


reveals the tensions that exist between a need for the legitimization of docu-
ments, connected to objectivity, and the necessity for a selection of information.
In my opinion, the tensions are the expression of a very powerful institutional
constraint and should be related to the United Nations’ desire for transparency.
This transparency cannot be achieved – as the study of the manual seems to
demonstrate – without control (control of meaning and of form by the insti-
tution). However, while an examination of the manuals seems to testify to the
underlying institutional ideology, the scope of this examination remains insuf-
ficient. In effect, there is a real gap between rules and effective practices, which
cannot be understood without a more specific study of the actual processes of
textualization. One way of pursuing this study is to proceed to an analysis of
discourse in order to identify the various implications of the process of refor-
mulation. In order to do this, I intend to undertake a comparative analysis, of
different materializations of texts: an oral discourse produced in the context of
the Sub-commission, the corresponding summary record and its translation.

2.2.3. From directions to writing: discursive “passages”


The passage of an oral text to a written text is a transposition of discourse involv-
ing a movement from an oral medium with its syntactic, textual and pragmatic
features to a written medium, subject to different kinds of linguistic constraints.
Intrinsically, this transposition questions the way in which it is possible to repre-
sent oral discourse. Transcription, for example, as linguists well know, is in itself
a partial representation of oral discourse. The rules of transcription, therefore,
are defined according to the needs of the subsequent study and the theoretical
interests of the researchers (Ochs 1979). The studies by Urban (1996) tend to
demonstrate the importance of the power relation at play in the transcription of
an oral monolog by different transcribers. One can therefore envisage the pas-
sage of an oral discourse to a written summary record in terms of the functional
needs and rules that determine it, as we have seen above. Within the context of
United Nations summary records, the writer is not asked to transcribe but rather
to transpose an oral discourse into the form of a written document. The act of
transposition is not neutral and involves a modification of the source text; it also
has consequences for the meaning of the transposed text. It therefore seemed
interesting to me to focus more on the comparison between the oral monolog
and the written document. It is not a question of identifying the individual ideo-
logical motivations of the writers in their selection of information, but rather of
examining the relations between the ideology revealed in the manuals and the
analysis of the completed transposition. Furthermore, my investigation is not a
From speech to text: the regulation and production of discourses 109

work of description leading to a typology of the discursive marks of transposi-


tion processes, but rather a work of interrogation with regard to the movement
of meaning. I shall therefore study two extracts. One is a discourse produced
in French by an expert of the Sub-Commission (Sub.2/Exp), the original SR
written by the French writing group, and its English translation. The other is a
speech by a Non Governmental Organization (NGO) representative in English
(Sub.2/ONG), the original SR in French and its English translation. It should be
noted that, in this case (but in many others as well), the SR is written in a lan-
guage other than the language used by the speaker, thus introducing a discursive
movement that is highly complex. In effect, the writer’s task is to focus on the
discourse produced in the original language (as prescribed by the manual), but
he also has at his disposal a translation made simultaneously by the interpreter
during the session.
While the questions of translation will not be explicitly dealt with here, it
should be noted that the fact of translation and interchange of writers (French
and English) reinforces the idea that language can be objective and transparent,
beyond the forms that the linguistic material may assume.15
The analyzed data will be considered as an illustration of recurrent processes
of the writing of summary records. I intend to focus more specifically on the
ideas of accuracy and conciseness, which are central in the definition and the
instruction regarding summary records, and to consider their application.
In comparing the speech (by means of the transcription below) and the SR,
one of the first elements to note is the actual organization of the summary
record. The paragraphs are numbered and, therefore, at the levels of both text and
contents, constitute a segmentation that does not appear in an oral text.The writer
has segmented the oral text into distinct sections of discourse. The consequence
of this procedure is that, at a discursive level, connectors are only rarely used,
as the enumeration of paragraphs takes over the task of discursive connection.
There is also a significant disparity between the lengths of the speech and the
SR. In the first extract, the speech of the Sub-Commission expert is divided
into two paragraphs. The first section of the SR consists of 760 typographic
characters while the transcription contains 2826; the second transcribed section
of the speech consists of 2252 characters, while the SR has 903. In the second
extract, the three paragraphs of the SR contain 862 characters compared to
2536 in the transcription. It can be seen that the summary record contains about
a third of the characters present in a transcription. This type of calculation has
no value in itself, in that it is based on a literal interpretation of an oral discourse
characterized by repetition, hesitations and re-wording, which do not appear in
the same way in a written discourse. The calculation does, however, indicate a
significant conciseness that we shall now explore.
110 Production of discourse and institutional constraints: the search for objectivity

Various modes of conciseness can be distinguished. First of all, there is the


omission of whole sections of text that do not appear in any way or any form
of re-formulation in the summary record, as in the example that follows. Here,
the textual omission involves the whole introductory sequence. Representing
a group of journalists, the speaker emphasizes the status of journalists in the
world and the risks they run:
(1) L1: Thank you/ Mister Chairman/ it is a sad reality that almost every week
euh/ some euh somewhere in the world journalists is gunned down while trying
to bring the news to the public/ while the principal behind free flow of informa-
tion is so important euh that people are willing to suffer and even die for it/ our
hard won experience taches us euh teaches us euh that the truth euh we publici-
zes today pays the ground of a safer and more equitable future /protection of
minorities and prevention of their discrimination gives riss euh rise to gravest
concerns all over the world/ while the world is preparing the ceremonies of the
fiftieth anniversary of the Universal Declaration of Human Rights numerous na-
tional minorities and indigenous peoples such as the Chechens the Crimean Tar-
tars the Tibetans the Tutsis the Kashmiris the Kurds and the East Timorese suffer
from the deprivation of their fundamental rights to life liberty and security/ of
person the latest disastrous instance of genocide and scorched earth policy tak-
ing place in Kosovo where the euh United Nations and the world’s community
yet again watching the calamity in stupor/ nevertheless it is the focus of world
attention/
(Sub.2/ONG)
SR
20. M.L1  dit que de nombreux peuples autochtones et minorités na-
tionales tels que les Tchétchènes, les Tartars de Crimée, les Tibétains, les
Tutsis, les Cachemiriens, les Kurdes, les habitants du Timor oriental, sont au-
jourd’hui encore privés de leurs droits fondamentaux à la vie et à la liberté.
À l’heure actuelle, le Kosovo est le théâtre d’un génocide et d’une politique
de la terre brûlée.16
21. Mr. L1  said that numerous national minorities and indigenous peo-
ples such as the Chechens, the Crimean Tartars, the Tibetans, the Tutsis, the
Kashmiris, the Kurds and the East Timorese suffered from being deprived of
their fundamental rights to life and liberty. Kosovo was currently the focus
of genocide and a scorched earth policy.

The discursive anchorage of the SR differs considerably from the oral text. Po-
lite formulae disappear, and the contextualization of discourse and the enuncia-
tive positioning (and its legitimization) are replaced by a codified enunciation
(“M. L1 dit que” ‘Mr L1 said that’). This form can be found systematically,
with some differences in terms of frequency, in the passage from one speaker
to another in the context of SRs. At an argumentative level, the absence of the
From speech to text: the regulation and production of discourses 111

opening section annuls the speaker’s attempt to articulate the different aims of
the NGO that he represents (and. therefore, his enunciative positioning). The SR
thus begins with the question of minorities (which corresponds to the agenda
item which the speaker intended to express), therefore implying that the speech
effectively begins when the speaker explicitly addresses the subject of minori-
ties. In this initial section, one can also see a rhetorical formula that is typical
of discussion in the context of the United Nations: the rhetoric linked or related
to elements of persuasion, which allows the speaker to put his discourse into a
particular perspective. Formulae, such as “are willing to suffer and even die for
it”, seem to belong to the kind of emphasis that conveys beliefs but also help
to legitimize the act of taking the floor by using “emotional” expressions. The
summary record’s transposition gives an account of the discourse that is neither
persuasive nor emotional.
In the following example, the introductory section is retained, but a whole
section in the middle of the speech disappears:
(2) Transcription
(. . . )
L2 l’implication de la sous-commission est d’autant plus utile et opportune
vu le caractère encore contradictoire/ confus même des approches en cette matière
et des opinions formulées il faut formuler aussi que certaines thèses et opinions
qui sont véhiculées autour de cette question sont encore malheureusement encore
loin de contribuer à la clarification des problèmes existant et à la diminution des
situations tendues et conflictuelles dans certaines parties du monde et que mal-
heureusement ceux-ci vont souvent dans une direction contraire / / il faut donc
admettre que ces problèmes sont encore aujourd’hui comme ils étaient dans le
passé très importants et que malheureusement et je répète ce mot malheureuse-
ment souvent elles représentent un des facteurs qui peuvent affecter envenimer
même les relations entre les peuples et entre les états monsieur le président je
voudrais en quelques mots me référer brièvement sur quelqu’unes des idées fort
pertinentes à mon avis que le rapport du groupe de travail met en évidence ainsi
se référant aux conflits impliquant les minorités dont nous avons été et nous
sommes encore confrontés monsieur E1 souligne à juste titre la nécessité
de comprendre la nature et les causes de ces conflits / j’appuie également la
déclaration faite par monsieur E2  qui souligne que la déclaration adoptée
par l’Assemblée générale document de référence en cette matière pour tous les
états membres devrait être largement diffusée tant sur le plan horizontal que
vertical
(Sub.2/Exp)
L2 [. . . the implication of the sub-commission is all the more useful and timely
given the still contradictory/even confused character of the approaches in this
matter and the stated opinions it is also necessary to state that some theses and
112 Production of discourse and institutional constraints: the search for objectivity

opinions that are being expressed about this question are still unfortunately far
from contributing to the clarification of the existing problems and to the decrease
of tense and conflictual situations in certain parts of the world and that unfor-
tunately these often move in the opposite direction / / it must be admitted that
these problems are still as important today as they were in the past and that un-
fortunately and I repeat the word unfortunately they often represent one of the
factors that can affect even poison the relations between people and the states
Mr. President I would like to refer briefly in a few words to some in my opinion
pertinent ideas that the working group’s work brings to light thus referring to the
conflicts involving minorities that we have and still are being confronted with Mr.
E1  rightly stresses the necessity of understanding the nature and causes
of the conflicts / I refer also to the statement made by Mr. E2  that stresses
that the declaration adopted by the General Assembly reference document in this
matter for all the member states should be widely circulated as much at the hori-
zontal level as the vertical]
SR
12. M.L2  dit que le rapport du Groupe de travail confirme l’intérêt ma-
jeur que les questions relatives aux minorités suscitent parmi les gouverne-
ments et les ONG ainsi que la sagesse dont a fait preuve la Commission en
décidant de doter le Groupe d’un statut permanent. Le nombre et l’ampleur
des débats consacrés par la communauté internationale aux problèmes com-
plexes et délicats des minorités est la meilleure preuve que celle-ci agit et
progresse dans ce domaine. La Sous-Commission est bien placée pour ap-
porter sa contribution à l’éclaircissement d’un certain nombre de questions
encore confuses. Le rapport du Groupe de travail contient plusieurs idées très
pertinentes. M.E1 a évoqué à juste titre la nécessité de comprendre
la nature et les causes des conflits eu égard à la situation des minorités, et
M.E2 a observé avec raison que la Déclaration devait être largement
diffusée.
12. Mr. L2  said that the Working Group’s report confirmed the great in-
terest which Governments and NGOs took in questions relating to minorities
and the wisdom the Commission had shown in deciding to give the Work-
ing Group permanent status. The number and range of the discussions the
international community had held on the complex and delicate problems of
minorities was the best proof that it was acting and making progress in that
area. The Sub-Commission was in a good position to make its contribution to
the solution to a number of problems that were still unclear. The report of the
Working Group contained several very relevant ideas. Mr. E1  had
rightly referred to the need to understand the nature and causes of conflicts in
the light of minority situations and Mr. E2  had been right to remark
that the Declaration should be widely distributed.
The omitted section is a transition between the opening section and the statement
of what the speaker’s intervention relates to. The textual process of the SR does
From speech to text: the regulation and production of discourses 113

not acknowledge the speaker’s emphasis in this section of the speech (“et que
malheureusement et je répète ce mot malheureusement” [‘that unfortunately
and I repeat the word unfortunately’], in which the “assumed” repetition of the
term “malheureusement” [‘unfortunately’] is of argumentative importance to
the rest of the speech. Indeed, the significance of this section in the speech as
a whole is to highlight the legitimacy of the working group by reflecting on
its influences. The absence of this type of discursive feature, moreover, is an
effacement of the axiological traces of the speaker, relating to the idea of the
annulment of all inter-subjective and emphatic traces of discourse in the SRs. In
terms of contents, the temporal dimension of this section (for example, “encore
aujourd’hui” [‘still . . . today’]) and the importance of the question of minorities
as such are removed. In terms of argument, the absence of this section omits an
articulatory link made by the speaker.
The above examples (1) and (2) constitute forms of conciseness that remove
certain parts of the discourse and therefore attest to a choice of information
considered to be relevant or pertinent. These omissions necessarily infer a mod-
ification of argument and, at times, a displacement of meaning. In example (2),
while paragraph 12 as a whole appears to praise the work of a group of ex-
perts coupled with a legitimization of their work to come (in the mention of
the existence of “questions encore confuses” [‘problems . . . still unclear’], the
speaker highlights in his speech the significant presence of difficulties related
to minorities. The slippage of meaning should not be considered as a conscious
decision on the part of the writer to make the contents of the speaker’s discourse
more palatable, but rather as the necessity of reducing the discourse to what is
essential, with all the difficulty that this term implies.
Alongside the condensation of information by omission of textual sections,
we can observe processes of conciseness that take the form of the contraction of
a group – a conglomeration – of textual elements. This process is manifested in
the form of a summary of a group of ideas by means of condensed formulation,
as we can see in the following example:
(3) Transcription
L1 elsewhere hidden from history are the so called northern minorities that
dwindling descendents of the 26 peoples who have been living since prehistoric
times in the vast region of the northern Russia from the Wide Sea in the west
to the Bering Strait in the east/ their native tongues belong to tangos manchu
pheno-ouric greek turkik and paleo sibirian language families non of them being
euh related to the russian language /over the centuries they had developed their
own lifestyle and balanced economy in keeping with their harsh geographical
conditions/ the Council of Europe report entitled endangered Uralic minority
cultures states that twenty-three million people in the world speak languages
114 Production of discourse and institutional constraints: the search for objectivity

belonging to this language group/ nearly three and a half million of them live
as minorities in Russia and not all of them even use their language on a regular
basis/
(Sub.2/ONG)
CR
22. (M1) Il convient également d’indiquer que l’identité culturelle des nom-
breux peuples minoritaires qui vivent dans les vastes régions du nord de la
Russie et qui parlent diverses langues ouraliennes ou altaı̈ques est menacée.
23. Mention should also be made of the threat to the cultural identity of the many
minorities who lived in the vast regions of the northern Russian Federation
and who spoke various Uralic or Altaic languages.
The whole transcribed section is contracted in the paragraph above. When the two
texts are compared, we can observe two phenomena. The first is the omission
of details, for example, the geographical and historical references, with the
retention nonetheless of certain expressions from the speaker’s discourse (for
example, “the vast regions of the northern Russian Federation”). The second
phenomenon is the integration of the whole section in one statement. Thus, the
term identité culturelle (‘cultural identity’) – absent in the original discourse –
is used to contract several statements made by the speaker. Furthermore, the
source cited by the speaker (the Council of Europe) introducing an element
of authority in the oral speech, is not mentioned in the SR, but the contents
of the source are mentioned in a contracted manner. The enunciative status of
the discourse is therefore modified. Finally, the enumeration of the origin of
the minority languages of northern Russia is contracted into two genealogical
affiliations; this is, moreover, a contrast with the enumeration of peoples and
national minorities indicated in an exhaustive manner in example (1).
Alongside textual omission and contracted reformulations, there is also a
type of omission that I shall call lexical. These omissions are interesting in that
they appear when the text of the SR is very close to the speaker’s discourse:
(4) ∅ security
T/ suffer from the deprivation of their fundamental rights to life liberty and secu-
rity/ (Sub.2/ONG)
CR Fr/ sont aujourd’hui encore privés de leurs droits fondamentaux à la vie et à
la liberté.
CR En/ suffered from being deprived of their fundamental rights to life and liberty
(5) ∅ plan horizontal et vertical
T/ devrait être largement diffusée tant sur le plan horizontal que vertical (Sub.2/Exp.)
[should be widely circulated as much at the horizontal level as the vertical]
CR Fr/ devait être largement diffusée.
En/ should be widely distributed.
From speech to text: the regulation and production of discourses 115

In these two cases, we find the almost identical repetition of terms used by the
speaker. Accuracy is clearly evident but is coupled with a lexical reduction. This
observation leads us to consider which phrases in SRs arise from the repetition
of terms used by speakers and which arise from the idea of accuracy that we
identified in the analysis of the manual. In effect, the development of these
two types of text is striking in its concern to repeat particular terms, phrases
and formulations present in the speech during the session. The repetition of
terms and formulations should nonetheless be explored in detail insofar as it is
subjected to various types of stylistic modifications, as we can see in the example
that follows:
(6) Transcription
L2 Je vous remercie monsieur le président le rapport lequel le groupe de tra-
vail nous présente reflète et confirme à mon avis l’intérêt majeur que ce problème/
heum /suscite tant de la part des gouvernements que de la part des organisations
non gouvernementales et le nombre élevé de pays et des organisations non gou-
vernementales qui ont participé aux sessions du groupe et à ses délibérations
est dans ce sens très significatif // tout ceci sont à regarder avec satisfaction et
reconfirme ainsi la sagesse que la commission a prouvé lorsqu’elle a décidé de
créer ce groupe de travail et ensuite de lui donner un caractère permanent//
L2 [I thank you mister president the report presented to us by the working
group reflects and confirms in my opinion the major interest that this problem/ um
/ raises as much on the part of governments as on the part of non-governmental
organizations and the high number of countries and of non-governmental organi-
zations that have participated in the group’s sessions and deliberations is therefore
very significant // this is to be viewed with satisfaction and thus reconfirms the
wisdom that the commission demonstrated when it decided to create this working
group and then give it a permanent character// ]
CR
12. M. L2M.  dit que le rapport du Groupe de travail confirme l’intérêt
majeur que les questions relatives aux minorités suscitent parmi les gouverne-
ments et les ONG ainsi que la sagesse dont a fait preuve la Commission en
décidant de doter le Groupe d’un statut permanent.
12. Mr. L2  said that the Working Group’s report confirmed the great in-
terest which Governments and NGOs took in questions relating to minorities
and the wisdom the Commission had shown in deciding to give the Working
Group permanent status.

Several lexemes are found in both the transcription and the SRs: “Groupe de tra-
vail” [‘working group’]; “confirme” [‘confirmed’]; “intérêt majeur” [‘great in-
terest’]; “suscite”; “les gouvernements” [‘governments’]; “les organisations non
gouvernementales” [‘NGO’]; “la sagesse”[‘wisdom’]; “Commission”; “perma-
116 Production of discourse and institutional constraints: the search for objectivity

nent”. The parallelism of the terms used demonstrates the concern to adhere as
closely as possible to the speaker’s words, and is apparently in contrast to the
omissions and reductions observed above. On closer examination, however, it
appears that there are also lexical omissions in the repetitions (“reflète” [‘re-
flects’]; “de créer” [‘to create’]) and omissions of statements (“le nombre élevé
de pays qui ont participé aux sessions du groupe et à ses délibérations est dans
ce sens très significatif tout ceci est à regarder avec satisfaction” [‘the high
number of countries and of non-governmental organizations that have partici-
pated in the group’s sessions and deliberations is therefore very significant’]). It
seems as if the original text has been retained as much as possible, but purged
or “débarassé du superflu” [‘divested of superfluity’] as the manual states. This
example also raises the difficulty involved in the passage from an oral discourse
to a written text. The written textualization also introduces a co-ordination “ainsi
que” [‘(and) permitting’] “la sagesse” [‘the wisdom’] and “l’interêt” [‘the in-
terest’] to be placed at the same level, both dependent on the main verb “con-
firmer” [‘confirm’], in contrast to the multi-level enunciative process and loose
co-ordination of the oral discourse. The syntactic displacement as such is a
constraint inherent in the writing process of the summary record; it also demon-
strates the implications of the displacement of meaning and the re-constitution
of texts.
Generally, we can discern two processes in the passage from the initial text
to the secondary text, and the necessity of a purified contraction – whether by
the omission of a textual section or by lexical omissions. The control can be
connected to an idealization of objectivity and a desire for conciseness. The
consequence of these transpositions is significant. The tension between a desire
for accuracy, through the use of terms used by the speaker, and the undertaking
of concision can be found in the linking of the source text to the second text
and in the production of the SR itself. The choices made in the writing process,
even though they cannot be explained by the type of investigation undertaken
here, appear in the text itself. The marks of re-writing are not the result of
the individual decision of the writer but should be understood in terms of the
rules instituted by the organization, the writer himself being dependent on the
institutional context in which he is working.

2.2.4. Synthesis of the section


The production of texts from oral debates, their reproduction and translation,
constitute a complex phenomenon at the linguistic level as well as the level of
contents. These processes can be seen from a strictly linguistic perspective, thus
demonstrating the observable transformations from one text to another. They
From speech to text: the regulation and production of discourses 117

can also be the object of a more general examination of the control exercised
over the act of transposition. The notion of control is clearly present in the man-
uals, and can be highlighted by means of a comparative analysis. The regulation
of discourse should be related to a desire for objectivity, which is evident in the
suppression of the speaker through de-contextualization as well as an elimina-
tion of the “emotional” components of the discourse. I have argued that there
is a parallel between the constraints put in place by the institution and the un-
derlying institutional logic. This parallel appears in the form of tension but, in
the end, nullifies this very tension. The contradiction between the ideology of
transparency and accuracy and the ideology of concision in the United Nations
is apparent. In both, what matters is a conception of the objectivity of thought
and meaning that seems fundamental for a bureaucratic institution that seeks to
settle questions arising from multiple perspectives, which are essentially poly-
phonic and heteroglossic (minority rights, human rights, etc.). In fact, beyond
the illusion of accuracy and the idealization of faithfulness to debates in SRs,
one cannot help but wonder about the status of these texts and their relevance.
This question seems fundamental for anyone who wishes to work on texts of
the United Nations or other organizations. I do not claim to provide a clear
and unequivocal answer to the question of the status of these data. I do think,
however, that the observations that have been made here allow a critical exami-
nation of this type of discourse, by insisting on the fact that the writing process
is itself a subjective re-construction beneath the overt desire for objectivity. It
therefore seems an illusion to consider that these discourses accurately reflect
the discussions that are held. Does this mean that the documents are without
value? Certainly not, but they must be seen in terms of the institution that pro-
duces them. Accordingly, if one is interested in what the United Nations wishes
to officially reveal, these documents give us access to a form of institutional
ideology. Nonetheless it is still the case that all economic, political and historic
interpretation in the context of an institution is subjected to the mediation of the
text. This must be considered, as the mediation determines the actual existence
of the document and constitutes a form of control of the meaning.
Maingueneau (2002: 119) states, in regard to UN reports, that they are “en
quelque sorte la vitrine des organisations internationales, la représentation
qu’elles donnent d’elles-mêmes au monde extérieur” [a kind of window into
international organizations, the representation that they give of themselves to
the outside world]. These discourses claim to be an objective reflection of the
discussions that take place. In fact, they cut, modify and alter the discussions
and turn them into a discourse structured according to pre-established rules.
It is, however, important to realize that the manner in which these procedures
are carried out is situated within the logic of the institution, permitting us to
perceive the image of itself that the institution wishes to convey.
118 Production of discourse and institutional constraints: the search for objectivity

3. Conclusion
In this chapter, I have attempted to examine different components of the relations
between an international institution and discourse, which will allow us to achieve
some understanding with regard to the following questions. What are the ideolo-
gies that underlie discursive production? How can they be explained? What con-
sequences do these ideologies have for the analysis of institutional discourses?
We have seen that a positivist and objectifying ideology can be found behind
UN discussions, management of languages and production of documents. This
ideology of language and discourse can be related to an idea of language as
transparent, thus binding itself to an essentialist tradition and conception. The
ideology of language that occurs in the institutional context is manifested mainly
in official discourses: expert reports and summary records. This ideology is fun-
damentally the response to an institutional need: this, it seems to me, is its reason
for existing. The processes involved in making discourses objective go hand-
in-hand with (1) an international rhetoric that claims to be a discourse of the
authority of proof; and (2) an institutional functioning that gives discourse more
importance than action. These discourses can therefore be seen as discourses of
authority and are only legitimate in their intrinsically “true” character according
to the institution. We have ascertained this fact through the observation of dis-
cursive procedures and the processes of writing summary records. Furthermore,
I have highlighted the importance of written discourses that are of an official and
fixed character. This positivist ideology, however, comes face to face with the
universal ideology of the United Nations, as we shall see in the rest of this work.
One may well ask, however, what the consequences of the positivist ideology
are (1) for the contents conveyed on various subjects and more particularly on the
subject that interests me here, linguistic minorities, and (2) for the possibilities
and limitations of analysis.
In order to approach the contents of discourse, it seems fundamental to take
into consideration the underlying conceptions of language and discourse and in
connection with the objectives of a given institution. It is my opinion (and in
this I concur with many studies in linguistic anthropology and ethnomethod-
ology) that the contents of discourse conveyed and that the linguistic features
of these contents are basically indissoluble. The forms taken by discourse are
not the result of chance: they are determined in various ways. At the same time,
they also determine the particular type of contents that is elaborated. The first
consequence of an essentialist approach to language, with regard to the question
of linguistic minorities, relates to the question of the heteroglossy of contents,
which is confronted by an ideology of discursive univocality. It is as if the desired
discursive univocality is to be found in an unstable relation to the heteroglossy of
Conclusion 119

the contents in question. Throughout this study, I shall come back to this aspect,
which I am posing here as a new hypothesis is to be developed, and which will
lead me to approach the second consequence, i.e. the task of analysis itself.
One of the objectives in this chapter was to clarify the status of UN dis-
courses, in order to evaluate analytical possibilities and limitations. What I have
raised so far cannot be separated from the analytical work that will follow: quite
the contrary. The ideology that emerges from this does not in any way impede
the analysis; I would even say that it allows the analysis to exist, in that the
position of discourses proves crucial within the United Nations and arises from
a legitimized discourse. The analysis will therefore be careful to deal with these
texts – these archives – not by going into the ideology of the institution, but
by adopting a critical approach based on ideological questioning as such. By
this, I mean that the legitimization of texts by the institution and the associ-
ated writing mechanisms deserve further investigation. At the same time, the
legitimacy of texts will be interrogated by considering the implication of this
auto-legitimization for the institution itself.
The acts of the “saying” obey institutional rules and a codified ideology of
language, and reflect an appearance of objectivity and accuracy that tends to-
wards a degree of homogenization. These acts, however, are anchored in forms
of “structuring” that follow a hierarchical logic and are influenced by an om-
nipresence of states (cf. chapter 2). The “structures” determine a production of
knowledge directed towards the protection of universal values and arising from a
bureaucratic machinery organized in clearly established and intangible relations
of power. Whether spaces of expertise or spaces of consultation, both remain at
the mercy of the structure chosen by the institution, which was itself conceived
and created by state powers. Discursive production and the creation of discur-
sive spaces participate fully in the structuring and limitation of knowledge of
linguistic minorities: in the following chapters, I shall devote my analysis to this
knowledge.
Chapter 4
State divergences and the principle of universality:
a protection through absence

1. Introduction
It is a considerable undertaking to establish a system of human rights protection
at an international level, ranging from the development of international instru-
ments intended to establish “standards” to the institutionalization of mechanisms
of protection permitting the establishment of effective means of preserving the
values expressed in the United Nations Charter (cf. Chapter 2). These standards
and texts of law, in the logic of the United Nations, are the preferred form of
both the production of knowledge and the means of action.
In the system of human rights protection, the principal international instru-
ment is evidently the Universal Declaration of Human Rights.17 Although the
judicial value of the Declaration is not binding – signatory members are not
bound to it by legal obligations – it possesses a significant ethical “power” and
also has a significant place in the institution as a whole. The Declaration is
the first instrument of the era of collaboration that emphasizes human rights. It
therefore determines all the other mechanisms of protection, which then explic-
itly rely on the document. The general principles of the Universal Declaration –
freedom, equality and dignity for all – are conducive to an understanding of the
human being and his/her rights in a universal and inalienable dimension.
The Declaration emerged historically subsequent to various international
events, particularly World War II, that revealed the scale of human atrocity.
In a way, the Universal Declaration is a means of remedying the “horrors”
that were committed, by promulgating universal principles. Accordingly, it is
explicitly devoted to the affirmation of ethical and moral values intended to
prevent repetition of atrocities arising from a hierarchy of people: the Declaration
thus seeks to identify the universal elements of equality among human beings.
The development of the Declaration also highlights the break from the
League of Nations, which did not foresee any system of human rights pro-
tection, even though this possibility was not totally excluded. In fact, treaties
on minorities included several principles that can be found in the Universal
Declaration (for example, the principle of non-discrimination) and that can be
read from the perspective of human rights (cf. Chapter 2). In marked contrast
to the League of Nations, the United Nations’ development of a document on
human rights was intended to be well and truly universal, not bilateral, and valid
Introduction 121

for all members of the United Nations and all those seeking democracy and
peace. The aspect of universality involves the difficulty of specifying elements
that are valid for all, regardless of the cultural values and specific morals of
the various ideological and political conceptions of states gathered together in
a single institution. The challenge was, therefore, fundamentally problematic,
encountering many obstacles before finally resulting in a document that gained
a certain degree of consensus.
The idea itself of drafting a universal instrument of human rights brings to
mind some questions that must have confronted those involved in this task:
1. What degree of compatibility is there between the search for universal values
and the particularity of state interests?
2. How can rules that are valid for all be formulated, while also taking into
account the inherent heterogeneity of humanity?
One may therefore consider that the writing of the Declaration involved a con-
stant attempt to reconcile paradoxes, which materialized discursively according
to the ideas and power relations present at the time. In effect, the Declaration
and the questions associated with it have an essential importance in this study
for two main reasons:
1. The Universal Declaration, effectively one of the first task of the United
Nations, is the guiding instrument of all systems concerning the protection
of human rights. It is the foundation on which all international instruments
in this matter are conceived, and is thus an essential document. Furthermore,
it constitutes – like all legal instruments in the logic of the institution – the
essential form of action in the United Nations.
2. The various debates and discussions that led to the constitution of the Dec-
laration demonstrate the presence of divergences, closely connected to the
paradoxes inherent in the principles of the undertaking; they also reveal the
way in which the institution and its different agents dealt with discursive
confrontations based on evident ideological differences.
I shall therefore focus my attention on this undertaking as it has particular
relevance to the way in which minorities are considered within an institution of
this kind. As mentioned previously (cf. Chapter 2), minority protection is part of
human rights: there is an explicit link between the steps taken by the institution
in the matter of human rights and those concerning the protection of minorities.
For those who are familiar with the Declaration, it may seem surprising to devote
an entire chapter to this discourse, in that there is no article stipulating minority
rights in the Declaration. But it is precisely this absence that interests me.
First of all, it interests me because it is not obvious. An examination of the
debates in various discursive spaces and at different moments of the elaboration
122 State divergences and the principle of universality: a protection through absence

of the Declaration reveals the existence of questions and divergent positions


concerning the inclusion or exclusion of an article relating to minorities, as
well as what the contents of such an article should be. Secondly, as we have
seen in the architecture of the United Nations, minority protection is clearly
the responsibility of the Commission on Human Rights, which then created a
Sub-Commission responsible for studying issues concerning the protection of
minorities. One may well ask why minorities are absent from the Declaration
when the institution itself linked them to human rights. Finally, the absence is
interesting because it is not neutral: it is the result of political decisions, taking
into account the inherent paradoxes between universality and the protection of
minorities, between universal principles and state interests, and between state
interests and the protection of minorities.
These debates are the subject of the following analysis, which aims to under-
stand the absence of an article on minorities in the context of the Declaration
and the interests that presided over this deliberate choice. My investigation is in
no way judicial; it is, rather, a discursive investigation, examining the discourses
on the drafting of the Universal Declaration of Human Rights as the place where
arguments occurred, arising from primarily ideological concerns.
My first step will be to discuss the debates that took place in the Sub-
Commission, showing the place assumed by the writing of an article relating to
minority rights. Secondly, I shall discuss various debates within the Commission,
where the absence of such an article was thoroughly debated and argued: this
will allow us to demonstrate the heterogeneous conceptions of the resolution of
the minority “problem”, and the justification for its non-presence in the declara-
tion. Finally, I shall discuss the debates that unfolded in the General Assembly –
following the debates of the commission – which re-affirmed the absence of
such an article. These debates will allow us to reveal the basis of minority issues
in state conceptions, as well as the tensions arising from relations of power.

2. Presence and ambivalence


2.1. First steps towards the Declaration and ambivalence on the question
of minorities

In order to understand the absence of an article on minorities, we must go back


to the very first attempt to draft the Declaration. Following the work of the
San Francisco Conference (cf. Chapter 2), the Charter of the United Nations
effectively gave birth to the United Nations Organization. Among the subjects
debated on the occasion of this assembly, the question of minorities was raised,
Presence and ambivalence 123

with regard to an article about them being included in the Charter. At the time,
the decision not to include minorities in this document arose from a desire
not to give this issue too much importance. The great powers argued that any
problems associated with minorities would be resolved by the establishment of
a Universal Declaration of Human Rights. This decision, initiated during the
San Francisco conference, nonetheless revealed some ambivalence with regard
to the recognition of minorities, which I would like to briefly elaborate here.
The events of World War II implicated minorities on two levels, and high-
lighted the geo-political issues relating to their existence. On the one hand, the
Jewish minority of Nazi Germany was subjected to expulsion and atrocities
(which, moreover, is one of the reasons for the United Nations being so firmly
based on the affirmation of human rights). At the same time, it is also neces-
sary to understand the impact of minorities in the world conflict of 1938–1945.
Indeed, so-called national minorities were strategic in the justification of Nazi
Germany’s conquests: Nazi Germany avidly exploited the presence of German
minorities outside the Reich in order to justify its territorial expansion. The
recognition of minorities at that time, therefore, was problematic.
Another element of ambivalence involves the emergence – with the Charter –
of the principle of self-determination, which in itself contained potential dangers
(principally the danger of separatism) for the great powers. Western powers
applied the strategy of assimilation to minorities within their territories: this
strategy tended to annul the characteristics that differentiate minorities from the
rest of the population, in order to subsume them in the dominant characteristics
of the state. In order to retain the practices of the western states, it was necessary
to make a radical break from the politics of the League of Nations and include
minorities in principles that would subsume them radically, i.e. the principles
of human rights. These principles allow a consideration of minorities without,
however, giving them too great an importance. The third form of ambivalence
is related to the desire to break away from the League of Nations, implicitly
involving a rejection of any specific mechanisms for dealing with minorities.
Some League of Nations treaties included several principles about human rights.
The rejection of the mechanisms of the League of Nations could therefore not
entirely erase the relationship between human rights and minority rights. Finally,
the institutional structure itself was ambivalent about the place of minorities.
Questions relevant to minorities were relegated to a Sub-Commission that was
subordinate to, and a subsidiary of, the Commission on Human Rights (cf.
Chapter 2): the problem could therefore be considered without it occupying an
overly important place.
This, then, was the ambivalent context in which the writing of the Universal
Declaration of Human Rights was inscribed. Several drafts were produced. The
124 State divergences and the principle of universality: a protection through absence

states then made their propositions, the Secretariat worked out a plan, and the
Commission began its work. The Commission thus mandated a Committee re-
sponsible for studying the accumulated documents and for drawing up the first
official version.
It was, in fact, the Committee that officially proposed an article on minorities.
I consider this to be the first institutionally “legitimate” proposition of the article
because the text is seen as the source document, on the basis of which different
consultations could be made. This article only exists, I believe, in relation to
the ambivalence that I have presented above. While the western states appeared
hesitant about the inclusion of a mention of minorities in the Charter, they
had nonetheless referred to it by including it under the aegis of human rights.
Furthermore, the structure of the Sub-Commission had already been accepted,
with an explicit mention of the “protection of minorities” in its title. Nothing,
therefore, prevented the inclusion of such an article in the first drafts of the
Declaration.

2.2. Discursive movements and the location of an article

The members of the Sub-Commission were asked to discuss the proposal of this
article. This then became the object of debates, leading to reformulations of the
initial proposal. These reformulations are interesting for two reasons:
1. They permit an understanding of the tension between minority rights and
human rights;
2. They demonstrate the reasons for the deletion of this article (decided by the
Commission on Human Rights and then by the General Assembly) through
the Sub-Commission’s difficulty in reaching a consensus.
In this section, we shall demonstrate the way in which the article proposed by
the Working Group was discursively negotiated within a newly created space of
expertise. I intend to show how the drafting attempts were part of a fundamental
interrogation of the nature of minorities and their protection. I shall refer to the
various attempts to draft an article on minority rights. I shall then identify three
propositions, constituting three stages of writing, each one marked by debates
on the choice of terms and syntactic expressions. These discursive movements
are then described in order to understand the reasons behind them.

2.2.1. Three propositions, three stages of writing


Three successive texts can be distinguished, each one supported by the preceding
one(s). The three texts are:
Presence and ambivalence 125

1. the proposition of the Drafting Committee of the Universal Declaration of


Human Rights;
2. the proposition of four members of the Sub-Commission (the Committee of
Four) following the initial debates of the Sub-Commission;
3. the final proposition submitted to the Commission.
I shall now briefly describe each of these propositions, before going into more
detail about their discursive differences.
The first proposition was made by the Drafting Committee and is the basic
formulation upon which the work of the Sub-Commission would be carried out.
When we read Proposition 1 (cf. below), we notice its grand principles regarding
minority rights (use of language, establishment of educational and/or religious
institutions, and the triptych of linguistic, religious and ethnic minorities). These
principles can be found in various treaties relevant to minorities published by the
League of Nations. While it is not possible to say with certainty that the writers
based themselves on these documents, the similarities should be highlighted
here:
In States inhabited by a substantial number of persons of a race, language or
religion other than those of the majority of the population, persons belonging
to such ethnic, linguistic or religious minorities shall have the right as far as
compatible with public order to establish and maintain their schools and cultural
or religious institutions, and to use their own language in the press, in public
assembly and before the courts and other authorities of the State.
(E/CN.4/21, Annexe F)

Although this Article does exist, it is accompanied by a commentary that reflects


the ambivalence that I described above. All the articles in the document produced
by the Committee are not subjected to this type of added comment or precision.
Those that are usually pose problems because of their formulation, judicial
significance or ambiguous character.
In the absence of summary records of the Committee’s debates, it is difficult
to ascertain the reasons for the commentary. As always, however, the form it
assumes invites reflection:
In view of the supreme importance of this Article to many countries, the Drafting
Committee felt that it could not prepare a draft Article without thorough pre-
examination by the Commission on Human Rights and suggested that it might if
necessary be referred to the Sub-Commission on Prevention of Discrimination
and Protection of Minorities for examination of the minority aspects.
(E/CN.4/21, Annexe F)
126 State divergences and the principle of universality: a protection through absence

In my opinion, this comment highlights the non-evidence of the drafting – or


even of the presence – of an article on minorities. Therefore, while the com-
ment evokes the “supreme importance” of the minority question, it seems that
there are two possible readings. The first is to see a real interest in an article on
minorities being included in the Universal Declaration of Human Rights, the
phrase “supreme importance” conveying an obvious willingness of the states
to recognize minorities. The second reading is to see, in the “supreme impor-
tance” of the Article, the problems that its inclusion may pose. The subject is
indeed delicate – and this is also because the minority issue is an actual problem
for states, involving the tensions between homogenous state politics and the
existence of minority groups, which disputes this homogeneity. This issue was
brought up in many debates within the Sub-Commission, Commission and the
General Assembly.
Following the recommendations stipulated in the Drafting Committee’s re-
port concerning Article 36, the Sub-Commission therefore took up this docu-
ment and, in its second session, embarked upon the study of the proposition
contained in the source document.
Let us examine the general context of discussion. When the Article was
submitted for discussion, the Sub-Commission met for the first time. The Sub-
Commission had been given a mandate and it was, first of all, necessary to define
the mandate. As I mentioned in Chapter 2, the members struggled to reach
agreement about the mandate, finding themselves in an impasse concerning
the definition of the term “minority”. The impasse was so severe that the Sub-
Commission had to ask the Commission to be more specific about the mandate.
The debates prior to those about the Article thus demonstrate the functional
difficulties inherent in the institutional space and a failure in the procedure
of consensus. At the same time, the impact of the Article’s discussion on the
Sub-Commission must be considered. The Article effectively granted the Sub-
Commission an institutional legitimacy and demarcated its area of activity.
The Article gave rise to numerous debates in the Sub-Commission: some
members considered that the terms of the Committee’s Article were problem-
atic. While the disagreements that had come up during discussion of the mandate
reappeared, there is a sense that there was a real willingness to achieve an agree-
ment on the Article itself. Subsequent to the problems raised during preliminary
discussion, the Sub-Commission nominated four of its members to collate the
various points that had been put forward and attempt a new formulation of the
article. The Drafting Committee produced the following formulation:
In States inhabited by well defined ethnic, linguistic or religious groups which
are clearly distinguished from the rest of the population and which want to be
accorded differential treatment, citizens belonging to such groups shall have the
Presence and ambivalence 127

right as far as compatible with public order and security to establish and maintain
their schools and cultural institutions, and to use their own language and script
in the press, in public assembly and before the courts and other authorities of the
State, if they so choose.

(E/CN.4/Sub.2/SR.11)

While the proposition is based on the one mentioned previously, it is distin-


guished by some important changes which tend to re-orient the conception of
minority protection, as I shall later demonstrate. This proposition became the
source text on which the final discussions of the Sub-Commission were based.
Subsequent to the two propositions above, the members of the Sub-Commis-
sion embarked upon a final discussion. The proposition of the Committee of Four
was not entirely acceptable, and several amendments were proposed. After a
series of suggestions seeking to impose a particular term, modify some syntactic
formulation or even to postpone discussion of the matter, a final proposition was
adopted:
In States inhabited by well defined ethnic, linguistic or religious groups which
are clearly distinguished from the rest of the population and which want to be
accorded differential treatment, persons belonging to such groups shall have the
rights as far as is compatible with public order and security to establish and
maintain their schools and cultural or religious institutions, and to use their own
language and script in the press, in public assembly and before the courts and
other authorities of the State, if they so choose.

(E/CN.4/Sub.2/38)

Although this proposition was accepted only by a small majority, it was submit-
ted to the Commission with some commentary from members opposed to this
formulation who wanted their remarks to appear in the final report.

2.2.2. The discursive processes of modification


The three propositions above can be seen as three stages of drafting, which
highlight not only the language work involved but also the ideological issues
that materialize in and through the work. I shall firstly consider the discursive
movements of these three stages in order to understand the reasons for these
changes, as argued by Sub-Commission members during their debates.

2.2.2.1. Discursive movements


A quick look at the three propositions will allow us to observe the important
differences between the proposition of the Drafting Committee and the final
proposition of the Sub-Commission.
128 State divergences and the principle of universality: a protection through absence

In his report to the Commission, the reporter gives a brief commentary re-
garding these changes, reproduced below. The reporter demonstrates some dis-
cursive shifts and some brief explanations in the expression of the retained for-
mulations: “it requires”/“it is no longer required”, marking additions and omis-
sions, with parentheses as elements of explanation: “(objective criterion)”/“(sub-
jective criterion)”:
This text differs from the one prepared by the Drafting Committee in that it further
defines what is meant in the Article by a minority group:
– It is no longer required that “a substantial number” of individuals should be
involved;
– It requires that “well defined groups” should be involved;
– It requires that such groups should be “clearly distinguished from the rest of
the population” (objective criterion);
– It requires that such groups should “want to be accorded differential treatment”
(subjective criterion)
(E/CN.4/Sub.2/38 [English translation])
While this commentary highlights some differences between the two proposi-
tions, it ignores others. Furthermore, although some remarks by members of the
Sub-Commission are reproduced after the article, the reporter passes over the
fundamental issues of the discussions leading to the inclusion of the article. The
commentary is therefore inadequate, even though it does enlighten us about the
dimensions that the Sub-Commission deemed pertinent in the choice of terms
and formulae. We should try to find another more systematic way of revealing the
changes occurring in the course of the discussions, and to describe the various
discursive movements that happened and, at the same time, explain them.
a. Discursive movements from Proposition 1 to Proposition 2
Additions “well defined”
“script”
“differential treatment”
“if they choose to do so”
Omissions: “by a substantial number”
“majority”
Lexical substitutions: “persons” ⇒ “citizens”
⇒ “groups”
“minorities” ⇒ “groups”
Presence and ambivalence 129

Reformulations
persons of a race, language or religion ethnic, linguistic or religious groups
other than those of the majority of the pop- which are clearly distinguished from the
ulation, persons rest of the population

b. Movement from Proposition 2 to Proposition 3


Substitutions: “citizens” ⇒ “persons”
Addition: “religious”

c. Movement from Proposition 1 to Proposition 3


The passage from Proposition 1 to Proposition 3 thus materializes as follows:18
In States inhabited by a substantial In States inhabited by well defined
number of persons of a race, lan- ethnic, linguistic or religious groups
guage or religion other than those of which are clearly distinguished
the majority of the population, persons from the rest of the population and
belonging to such ethnic, linguistic or which want to be accorded differential
religious minorities shall have the right treatment, persons belonging to such
as far as compatible with public order groups shall have the rights as far as
to establish and maintain their schools is compatible with public order and se-
and cultural or religious institutions, curity to establish and maintain their
and to use their own language in the schools and cultural or religious insti-
press, in public assembly and before the tutions, and to use their own language
courts and other authorities of the State. and script in the press, in public assem-
(E/CN.4/21 Annexe F) bly and before the courts and other au-
thorities of the State, if they so choose.
(E/CN.4/Sub.2/38)

The comparison of Propositions 1 and 3 reveals numerous syntactic and lexical


changes. While at first reading, the discursive differences I have highlighted
do not seem very striking, it must be admitted that they are not neutral. They
are not simply stylistic or cosmetic changes: on the contrary, as I shall later
demonstrate, they were proposed, argued and discussed. They thus participate in
the construction of the discursive object, “minority”, by incorporating different
views – even though they do not succeed in achieving total consensus. The
discursive movements can thus be explained; studying these explanations is
necessary in order to understand the ideological issues associated with the choice
of terms and formulae.
In an endeavor to find the explanations for the discursive shifts, it is necessary
to investigate the discussions about theArticle.They allow a better understanding
of the reasons for the discursive changes described above and the ideological
issues attached to the choice of words and formulae.
130 State divergences and the principle of universality: a protection through absence

2.3. Ideological issues, changes and diversity of positions

2.3.1. The reasons given to explain the changes


An examination of the discursive strategies involved in the negotiation of the
Article avoids a simple comparative approach on the basis of the propositions,
which necessarily passes over the political implications of the discursive shifts.
Generally speaking, the changes do not concern the rights themselves, but
rather their recipients. Apart from the addition of the word “script” – that was
accepted without vote or comment – the actual rights set out in the Article
proposed by the Drafting Committee were never really the object of debate.
They therefore did not appear to be problematic. What was problematic and
contentious, was the identification of the recipients of rights. This emphasis
allows us to get straight into the actual issue of the Article – the discursive
construction of what a minority is, or what it is not.
First of all, let us consider the disappearance of the term “minority”, replaced
by “groups”. In order to understand this first modification, it is important to recall
the debates about the Sub-Commission’s mandate that I discussed in Chapter
2: we saw then that it was difficult for members to take up positions on the
meaning of the term “minority”. The discussions on Article 36 took place at the
same time, i.e. during the first session of the Sub-Commission, and immediately
after discussions about the mandate. In the agenda, the mandate was the item
just before the one referring to Article 36. The lack of a definition immediately
oriented discussion around the presence – indeed, the absence – of the term
“minority” in Article 36. The replacement of the term indicates the ambivalence
of the Sub-Commission with regard to its own mandate. We can also see a
consistent avoidance of the term “minority”: coming up with a definition of this
term was, according to a member of the Sub-Commission (the United States
representative): “To define a minority moreover was a task of the very greatest
difficulty” (E/CN.4/Sub.2/SR.11, p. 12). In fact, there is good reason here to
refer to the UN ambivalence about minorities, which probably had a strong
impact on all the work of the Sub-Commission. It was not possible to totally
ignore the ideologies present in the political organs.
The term and definition of “minority” are also problematic because the poli-
tics of the western states after the war tended to deny the existence of minorities
and to consider that their recognition would be potentially dangerous for the
state’s integrity (risk of rebellion, demand for independence). The rapid disap-
pearance of “minority” during the discursive movements (there was no dissen-
sion, as this modification was not the object of a separate vote) therefore not
only reflects the Sub-Commission members’ inability to agree on the definition
of the term, but also the perceived meaning of the term and what it represented
at the political level.
Presence and ambivalence 131

The disappearance of the term “minority” leads us to examine the addition of


the phrase “well defined”, and straight into a paradox – between the impossibility
of a definition, on the one hand, and its necessity, on the other. The addition of
the phrase “well defined” (presented in inverted commas in the SR) was argued
by its proponent as follows:
Mr. SHAFAQ said that, in his opinion, the Commission of Human Rights did not
desire to encourage a spirit of linguistic or racial isolation among the nations. He
had suggested for this reason, that the words “well defined” be added before the
word “ethnic”
(E/CN.4/Sub.2/SR.10)
Mr. Shafaq’s argument draws a parallel between the rejection of “isolation” and
the addition of the term “well defined”. This causal parallel (“for this reason”)
may seem odd, but is understandable in terms of the demarcation of a minority
and an article providing specific rights, which – for want of a definition of those
who deserve these rights – necessitates some restrictions. The term “isolation”
is also ambiguous. It is not clear whether the states will segregate the minorities,
or whether the minorities will isolate themselves; this makes the analysis of Mr.
Shafaq’s words more complicated.
Nonetheless, what does emerge clearly is that the granting of rights to minori-
ties must involve some “well defined” safeguards and that objective demarca-
tion – for example, by number and identifiable characteristics or by geographic
location – will help to avoid any misuse of the Article. The risk of “isolation”
should, I believe, be interpreted in relation to the phrase “well defined” and
therefore as a refusal to recognize too great a number of groups, which would
give rise to resistance movements.
While the request for this addition was fairly well received, some voices
were raised in opposition. These objections can be illustrated by the comments
of the Australian expert, Mr. MacNamara. He considered that the mention of
“well defined” introduced a restriction that “would be contrary to the spirit
which should actuate the Sub-Commission and also the spirit of the Declaration”
(E/CN.4/ Sub.2/SR.11, p. 3). He therefore proposed an amendment, consisting
of a deletion of these words, which was supported by some of his colleagues, as
we can see in the following excerpt:
Mr. MENESES (Ecuador) shared Mr. MacNamara’s wish not to extend restric-
tions. As regards the words “well defined” which undoubtedly represented a re-
striction, it would be wise to delete them. He pointed out that in so doing they
would be conforming to the Sub-Commission’s intention not to restrict liberties
and equality of rights.
(E/CN.4/Sub.2/SR.11)
132 State divergences and the principle of universality: a protection through absence

Furthermore, the comment of the Soviet Union representative conveys, with


some irony, doubt about the use of the phrase “well defined”:
Mr. BORISOV (Union of Soviet Socialist Republics) wished to know who would
define the ethnic, linguistic and religious groups, and who would define whether
they were well defined.
(E/CN.4/Sub.2/SR.11)
The objections to these terms, however, were in the minority: the amendment
was rejected 7 votes to 5.
One of the other crucial questions about the recipients of rights was their
status.The term “citizens”, therefore, posed a number of questions and problems.
Whereas the Drafting Committee made no mention at all of the term “national” or
“citizens”, the Sub-Commission initially mentioned this explicitly (Proposition
2), and then decided instead on the term “persons”, which does not imply any
explicit belonging to a state.
Once again, it was on the initiative of Mr. MacNamara that the substitution of
the term “citizens” (Proposition 2) by “persons” was brought up. He maintained
that there was the problem of a restriction of rights that could result in expatria-
tion or denial of citizenship. After lively debate, the term “persons” was chosen
instead of “citizens” by a very small majority. There were various reasons for
its acceptance. For some, the substitution did not seem problematic, given the
sovereignty of the state in the matter of law as far as international legislation
was concerned, the presence of the term “citizen” thus being merely a pleonasm.
Others fully endorsed MacNamara’s concern about possible dangers and they
therefore accepted the substitution of terms.
Some strong objections, nonetheless, were raised during the discussions.
The most virulent (which was, moreover, explicitly mentioned after the final
proposition in the report submitted to the Sub-Commission) was the objection
of Mr. Nisot:19
This is why I was unable to agree to Article 36. It appeared to me indeed excessive
to grant the differential treatment in question to aliens. These, moreover, may be
established on the territory only temporarily (tourists, migrant workers . . . etc.). It
is hardly necessary to recall that the treaties and declarations on minorities which
came into being between the two wars, apply in this connection, to nationals alone.
It will be for the Commission of Human Rights to study the Draft of Article 2 of
the Charter, which forbids organs of the United Nations to intervene in matters
essentially within the domestic jurisdiction of the member States. In my view,
such a study will be particularly indicated with respect to Article 36 as adopted
by the Sub-Commission.
(E/CN.4/Sub.2/38)
Presence and ambivalence 133

The French expert’s discourse conveys a view of minorities as being essentially


anchored within the limits of state territory, strongly opposing a formulation of
rights that would allow any doubt to be cast on the recipients. He thus draws a
distinction between “aliens” and “nationals”. This distinction implies that the
minorities settled permanently in a state have rights and that they have primacy
over more recently arrived minorities (highlighted at the same discursive level by
the terms “tourists” and “migrant workers”). The distinction between permanent
and temporary raises the questions of the compatibility of minority and universal
rights, of the restriction of these rights and their being granted to all, no matter
what status they have within the state. The French representative, however, did
not emphasize this aspect but rather the fact that, if there are minorities, they
must be limited so that they are not in any way detrimental to states.
In order to substantiate his argument, therefore, the French representative
referred to the founding of the United Nations, stressing the principle of non-
interference in internal state affairs and justified his position by invoking pre-
vious international instruments – those of the League of Nations. There is an
implied ambiguity in minority rights that the French representative wanted to
clarify. Therefore, the substitution of the term “citizens” by “persons” is a dis-
cursive wrangling that assumes an indisputable ideological meaning.
The French representative’s opinion was supported by Ms. Monroe, the UK
expert, who highlighted another element relating to the use of the term “nation-
als”:
Miss MONROE (United Kingdom) said the she would abstain from voting for
the same reasons as Mr. NISOT had given for his decision to vote against the
text. To grant the same rights to foreigners as to nationals might result in persons
who already enjoyed rights granted by one Government attempting to enjoy rights
granted by other Governments also.
(E/CN.4/Sub.2/SR.11)
While the speaker concurs with Mr. Nisot’s remarks, her discourse is slightly
different. Indeed, she considers that not using the term “nationals” could lead to
abuse. The notion of abuse is a preoccupation that we have already come across
in the addition of the term “well defined”. It probably has to do with the idea of
state sovereignty, constitutive of all procedures relating to international regula-
tion. The possible abuse, mentioned by Ms. Monroe, also evokes an image of
minorities as potential claimants or even trouble-makers. The phrase “attempt-
ing to enjoy” tends towards the notion of minorities themselves usurping rights,
therefore implying that they are dangerous.
Let us now examine the question of the “differential treatment”20 of those
having rights. This phrase tends to evoke two types of minorities: those who
desire differential treatment and those who desire to assimilate. Mr. MacNamara,
134 State divergences and the principle of universality: a protection through absence

just as he proposed the deletion of “well defined”, suggested the deletion of


“differential treatment”; he considered this to be a risk of discrimination which
would restrict rights only to those minorities who desired differential treatment.
Other members also disagreed with this element of the Article. Mr. Masani
(India) objected to it for the following reasons:
This expression implied the desire of a minority to obtain privileges, whereas in
point of fact, the Sub-commission only wished to assume equality of rights for
all the groups of the community.
(E/CN.4/Sub.2/SR.11)
The arguments presented above – i.e. the inherent contradiction between equality
and difference and the risk of discrimination brought about by categorization –
were not upheld when it came to voting. In this decision, there is an underlying
vision of what a minority should be, as well as an explicit refusal to incite
existing minorities in the process of assimilating to change their direction in
favor of differentiation. The decision to add the phrase “if they choose so”, which
emphasizes that the minorities in question had to explicitly assert their rights,
is to be understood in this way. There is at once a qualification of the recipients
of rights but at the same time a refusal to automatically grant these rights.

2.3.2. The ideological issues of the discursive movements


The examination of these debates has allowed me to demonstrate that the deci-
sions leading to the proposition of Article 36 are the result of a co-construction,
which had nothing to do with a harmonious consensus; rather, it reflects the
existence of conflict and notable disagreements among members of the Sub-
Commission. We have seen that the issues being discussed relate more to the
recipients of rights than to the rights themselves: one may well ask whether this
focus is really a way of circumscribing the phenomenon of minorities rather
than recognizing it.
Three kinds of tension, in my opinion, emerge transversally from these dis-
cursive arguments. They are very important because they occur at an ideological
level and bring to light the inherent difficulties of the drafting process, as well as
the conceptions relating to minorities and universality. The tension has to do with
what is desired in terms of rights, what the solution is concerning the protection
of minorities and the actual principle of universality. I identify three kinds of
tension, allowing us to demonstrate the ideological difficulties of locating an
article to be included in the Universal Declaration of Human Rights:
1. tension between restriction and openness;
2. tension between equality and difference;
3. tension between assimilation and recognition.
Presence and ambivalence 135

Each of these in its own way brings into question the principle of universality
via the minority issue.
The first tension, between restriction and openness, primarily relates to the
way in which the recipients of rights were to be characterized. It also highlights
different views of minorities and their protection.
In effect, two distinct groups emerged among the members. The first group
considered that it was essential to set up safeguards and that the Article in
question therefore had to restrict not only the rights but also their recipients.
The second group considered that the fundamental purpose of the Article was
to avoid all restriction of groups and rights and, therefore, to be open and non-
restrictive, complying with the desired procedure of the drafting of the Universal
Declaration. The result of these two factions was the formulation of the hybrid
article, which won the vote but did not attain an effective plebiscite.
Behind the question of restriction or openness, the discussions highlighted
significant impasses regarding the consequences of adopting one position or
the other. An open article would avoid the imposition of restrictions leading
necessarily to the establishment of criteria of inclusion and exclusion. On the
other hand, however, an open article infers two consequences: (1) a problem
with the interpretation of rights and (2) difficulty in the application and possible
recognition of these rights which could result in a lack of action. A restrictive
article, however, would have the positive consequence of introducing forms
of categorization that would allow rights to be granted in a more transparent
manner. The negative consequence, in the historical context, had to do with
stigmatization rather than protection.
The tension here involves an inherent paradox consisting in a tendency to-
wards universality while protecting state interests: the subject of minorities thus
leads to an ideological impasse. This kind of impasse is equally but more ex-
plicitly at work in the tension between equality and difference.
The examination of the debates also reveals a tension between a search for
equality and the recognition of difference, raising various questions about the
objectives of the rights stipulated in Article 36. There is an ambiguity, on the one
hand, between the granting of differential and specific rights to minorities who
clearly demanded these rights – who have effectively demonstrated their desire
to maintain their difference – and, on the other hand, the principle of equality
demanded by the basic principle of non-discrimination. The contradiction of the
egalitarian vision, fundamental to the future Universal Declaration of Human
Rights, thus poses a conceptual contradiction and a particular risk in the presence
of differential treatment. However, while one acknowledges the necessity of an
article of this kind, it is impossible – in the prevailing institutional logic – to con-
ceive of total equality between the minorities and the majority in any given state.
136 State divergences and the principle of universality: a protection through absence

The principle of equality therefore seems to disappear from Article 36 in favor


of the mention of specific rights (language, religious institution, etc). At the same
time, the Declaration dispenses with a general article on minorities regardless
of their desire for difference or equality. Differential treatment, however, is
implicitly perceived as a protection in itself, whereas the idea of equality could
become an evident obstacle in terms of state politics, omnipresent in all these
debates (cf. above on the role of the state and the limits to differential treatment).
The third tension – between assimilation and recognition – came up in the
debates in relation to the fact that the Article could only apply if the minorities
themselves chose not to assimilate. Thus the minorities to be protected were
those that desired to be distinct from the rest of the population. There was,
however, a potential risk in such a specification perceived by those who opposed
this mention. The tacit exclusion of minorities wishing to assimilate thereby
implies that, if there were assimilation, there would be no specific rights to
formulate, the existence of minorities thus being denied.
What is at play here – and we shall examine it in further detail in the debates of
the Commission – are two fundamentally different conceptions of minority pro-
tection. The first is to conceive of the protection of minorities by means of their
recognition and therefore by the establishment of infrastructures which would
allow full exercise of their specificity. The second, however, considered that the
most advantageous solution for minorities was assimilation: this would allow
no differentiation and there would, therefore, be no minority position. These two
conceptions are fundamentally opposite, causing considerable difficulty in the
establishment of an article on minorities. The Article itself thus contains the two
elements: the recognition of specific structures intended to protect the charac-
teristics of minorities, and the refusal to grant rights automatically by insisting
on the evident willingness of minorities as a prerequisite of these rights.
In spite of these tensions, resolved to an extent by successful discursive
arguments, which allowed the different conceptions to take form, we should
note that the Sub-Commission did not question in any way the presence of
an article concerning minorities in the Declaration. In the report submitted to
the Commission, the Sub-Commission even stressed the importance of such an
article:
The Sub-Commission is of the view that the implementation of the rights formu-
lated in those parts of the proposed Declaration and Convention of Human Rights
which deal with the prevention of discrimination and the protection of minorities
will be of vital importance.
(Adopted by 11 votes with 1 abstention)
(E/CN.4/Sub.2/38 [continuation], p.3)
The Commission on Human Rights and the eviction of minorities 137

This favorable reception is not in itself surprising. Let us remember that the
Sub-Commission’s mission was to focus on the question of minorities; one may
well consider that the presence of such an article would be a justification of the
Sub-Commission’s own existence.
It is nonetheless still the case that the limited degree of consensus and the
disagreements scattered through the discussions hardly give this Article a con-
vincing appearance. The report submitted to the Commission could not resolve
the many disagreements of the Sub-Commission. It seems to me, however, that
the different discursive stages within the space of expertise allow us to under-
stand the political issues at stake in a proposition of this kind. While the Sub-
Commission is considered an apolitical space, the debates that I have presented
clearly highlight the constraints and possibilities of a law on minorities. Finally,
they demonstrate the difficulties involved in taking into account universal rights,
the protection of minorities and state interests. These different elements would
be at the centre of debates in the political spheres of the Commission on Human
Rights and the General Assembly.

3. The Commission on Human Rights and the eviction


of minorities

The discussions described above, limited to the context of the Sub-Commission,


must now be related to the decisions and debates that occurred in hierarchically
superior discursive spaces. This will allow us to progress further in understand-
ing the political issues of minority rights.
Briefly, the subsequent discussions occurred in three different spaces:
1. the Commission on Human Rights;
2. the Third Commission;
3. the General Assembly.
It is interesting to observe the great similarity of discussion within these three
organs in terms of the polarization of ideological conceptions, which I now
intend to demonstrate. I shall focus principally on the debates of the Commis-
sion, revealing the various arguments which led to the deletion of the Article
discussed above. I shall then study the debates within the General Assembly,
leaving aside the Third Commission because the tenor of discussion here is the
same as that of the other two bodies. The debates in the General Assembly will
allow me to argue that ideological polarizations with regard to minorities are
essentially included in discourses relating to the conception of what a state is,
and what a universal declaration should be. This will then lead me to discuss the
138 State divergences and the principle of universality: a protection through absence

use of “minorities” in order to establish an ideological vision of human rights,


as well as of power relations.

3.1. A non-legitimate presence

Now we must go forward in time to 1948 and the third session of the Commission,
in order to observe the discussions about the Article on minority protection.
These discussions were part of a consistent examination of each article proposed
by the Drafting Committee, accompanied by documents provided by the various
relevant UN bodies or by the states in the form of amendments.
When minority rights were discussed, the Article was referred to as Artic-
le 31, not 36, as several previous articles had been progressively excluded from
the Declaration. In this session, the Commission directed discussion not towards
the form and contents of Article 31, but towards the legitimacy of its presence.
In fact, some countries (China, India the United Kingdom and the United States)
proposed its deletion in an amendment. There was a debate, therefore, on the
legitimacy of its presence in the Declaration, rather than on its contents.
The reasons given for the deletion of Article 31 can be briefly summarized
with regard to the following three arguments:
1. The superfluity of the article: the human rights expressed in the Declaration
are equally valid for minorities and, therefore, a specific article about them
is not necessary.
2. The primacy of individual rights over collective rights: the Declaration is
devoted to the rights of individuals not to collective rights; therefore, the
presence of an article on minority rights is incompatible with the guiding
principles of the Declaration.
3. The primacy of assimilation over differentiation: the best way of protect-
ing minorities is assimilation; the commendation of difference constitutes a
danger for the state and minorities themselves.
The arguments that emphasize the superfluity of Article 31 are based on the
Declaration as a whole which, through the principle of the equality between
human beings, also includes minorities, as we can read it in the flowing excerpt:
Mr. MEHTA (India) opposed article 31 as unnecessary. Members of minority
groups were protected as human beings by the other articles of the declaration . . . .
Consequently, since human rights were to be enjoyed equally by all, there was no
need to grant special rights to minority groups.
(E/CN.4/SR.73)
The reasoning here is clear. In the matter of the protection of minorities, the
best instrument remains the Universal Declaration itself, which incorporates all
The Commission on Human Rights and the eviction of minorities 139

the principles governing their rights. This reasoning is based on a universalist


conception of the instrument. Universalist logic consists of establishing regu-
latory instruments applicable to all, regardless of the characteristics of those
concerned. This extract also demonstrates the central philosophy prevailing in
UN procedure at the time with regard to human rights: the explicit rejection of
special rights and the search for general, transversal principles valid for all. The
Indian representative emphasizes the principle of equality among human beings
which, in fact, transcends all notions of particular cases and, therefore, makes
the specification of such rights in a universal declaration redundant.
Mr. Lebeau, the Belgian representative, concurred with the arguments of
the Indian representative and, in conveying his position, he referred to another
principle of the Declaration:
Mr. LEBEAU (Belgium) felt that the question of minority rights was essentially
one of tolerance and the strict application of human rights to members of minority
as well as majority groups.
(E/CN.4/SR.73)
Here the principle of tolerance is evoked as a key element of the Declaration. The
introductory formula “the question of minority rights was” and the affirmation of
the principle of tolerance that follows stress the redundancy of the specification
of rights, as tolerance among human beings is explicit in the Declaration.
The statement of this principle, moreover, allows the Belgian representative
to pose the question of the rights to be accorded to minorities in two different
ways, i.e. the tolerance of minorities with regard to the majority and the tol-
erance of the majority with regard to minorities. The equivocation of the term
“tolerance” also applies to the term “equality”, mentioned in the previous text:
this is implied by the connector “as well as”, discursively putting “minority”
and “majority” on the same level. The representative from Belgium therefore
offers us a vision of minority protection through the application of rights, in that
minorities would be protected if rights are respected.
These two extracts illustrate the position that considers an article on minori-
ties to be superfluous and includes minority rights in the rights of the Declaration
as a whole, without having to mention them explicitly. In fact, it is as if the Decla-
ration were in itself a sufficiently universal document – and sufficiently extensive
to eliminate, by its very existence, the problems encountered by minorities, and
to make any other international instrument in this regard superfluous.
The “automatic” nature of the implementation of the Declaration as the
solution referred to in the above extract fits into the arguments about superfluity
mentioned above. The Egyptian representative, however, offers us a second
justification for the suppression of Article 31: the incompatibility of collective
rights (or group rights) with the Universal Declaration:
140 State divergences and the principle of universality: a protection through absence

Mr. LOUFTI (Egypt) favoured deletion of Article 31 and supported the United
States of America amendment of article 19. The Commission was concerned with
the declaration of rights of individuals, and not minorities . . . . Furthermore, the
problem of minorities would be automatically solved by the complete implemen-
tation of the human rights declaration.
(E/CN.4/SR.73)
We can see in Mr. Loufti’s comment an opposition between the rights of “indi-
viduals” and the rights of “minorities”. This is part of an argument that considers
minority rights as inherently collective rights, therefore justifying their absence
in the Declaration.
We find a similar statement in the remarks of Mr. Hood, the Australian rep-
resentative:
Mr. HOOD (Australia) felt that the ideas contained in article 31 went beyond
the scope of the declaration. The declaration enumerated the rights of the in-
dividual and included his right to form associations, while article 31 conferred
certain rights upon groups as such. Basically, it raised a problem which directly
affected the fundamental structure of States and the science of government, that
of reconciling the rights and interests of all groups within the State
(E/CN.4/SR.73)
Mr. Hood’s discourse allows us to understand the strict separation of individ-
ual and collective rights better. Indeed the Australian representative’s comment
demonstrates that all group rights and, by extension, minority rights depend on
the state and not the United Nations. It is up to the states alone to decide on
the political means of reconciling the “interests of all groups”. The Australian
representative thus reaffirms the principles of sovereignty clearly stated in the
Charter of the United Nations. This principle, often referred to by represen-
tatives, was particularly salient in the discussions of minority rights, but in a
transversal manner. This reaffirmation can be observed each time that there is a
risk of individual rights being shifted towards collective rights.
While group rights are problematic in any case, there is another risk involved
in recognizing them: the risk of encouraging the groups in question to oppose
the state. According to this logic, the rights of minorities are incompatible with
the rights of the individual. It is necessary to understand that the postulate of
universality can only be acknowledged through individual rights. The reason
for the deletion of the Article is therefore implacable: if minorities exist, it is
because they form groups; mentioning them (regardless of the form that this
takes) would therefore necessarily contradict the intended universality.
The discursive strategies mentioned above, while relating to some extent to
the explicit refusal to incorporate a specific mention of minorities, all highlight
the importance of minorities, and assume that the Declaration in itself includes
The Commission on Human Rights and the eviction of minorities 141

the protection of minorities. The ambivalence that I brought to light at the begin-
ning of this chapter remained, and the fears that it aroused for the nation-states
underlay the arguments of those who supported the deletion of the Article.
The fear of opposition to the state and the concern about minority groups
tending to form a state within the state thus led certain western delegations to
promote assimilation as the solution to minority problems. These arguments
appeared, then, in discussions as justification for the deletion of the Article on
minorities. As an illustration, I will refer to the words of the President of the
Commission, the United States representative, Mrs. Roosevelt:
The United States delegation supported the deletion of article 31, considering
that provision related to rights of minorities had no place in a declaration of
human rights. She further pointed to the decision taken at the Lima Conference
in 1938 and reiterated in Chapultepec, that minority questions did not exist on the
American continent. United States experience with foreign groups residing within
its borders had been happy, assimilation having been emphasized throughout.
(E/CN.4/SR.73)
This extract highlights a twofold argument that distinguishes the question of the
“place” and the question of objectives to be reached in the matter of minorities.
The co-occurrence of these two arguments, however, implies that they are linked
by the main purpose of this statement: the deletion of a specific article relating
to minorities.
We should also note the discursive processes that led to the use of the states’
own experience to justify the argument. This assimilationist vision of the protec-
tion of minorities is even more explicit in the following extract, another comment
by Mrs. Roosevelt:
The CHAIRMAN recalled that previous debates on that question had brought
out that the aim of States was to assimilate and absorb large foreign groups,
and to make them part of the nation. Unless all the citizens of a given country
could speak the same language, there was the danger that public order might be
disrupted by persons who might not understand their duties as citizens in which
they were a minority. It was not a question of teaching children in a language
different from that of the majority, but of adult persons who would be unable to
assume their duties as citizens of the larger country.
(E/CN.4/SR.73)
Mrs. Roosevelt’s words emphasize the benefits of assimilation as a means of
minority protection. To “assimilate” and “absorb” are the objectives of the state
as far as the protection of minorities is concerned. These objectives are then
justified by a positive dimension – of giving these populations the possibility
of being “part of the nation”. The speaker therefore affirms a consideration of
minorities, while at the same time nullifying them.
142 State divergences and the principle of universality: a protection through absence

Assimilation is constructed here as a necessity for the state. The emphasis


on the potential risk of public disorder (“public order might be disrupted”) is
significant in this regard. The recognition of specific rights for minorities would
not allow them to “understand” the laws of the state in which they reside, leading
to misunderstandings and even the impossibility of harmonious cohabitation.
This is stressed by the discursive shift from minority rights to “duties”, a term
associated with “citizens” attached to a particular territory (“country”, “larger
country”). The term “duties” also refers to one of the components of the Article
as drafted by the Drafting Committee and the Sub-Commission: the right to
education in a different language. Used as an illustration in her arguments, this
element of the Article is brought up in order to emphasize possible conditions
for the exercise of duties by minorities. Being taught in the language of origin is
not an acceptable means of minority protection for the state, which must provide
minorities with all the conditions allowing them to carry out their duties. There
is a double discursive movement here, beginning with “It was not a question
of”, shifting the principles of rights from (1) the teaching of a different language
and (2) children to (1) the responsibility of duties and (2) adults. This highlights
the justification of assimilation and, at the same time, the rejection of an article
on minority rights in the Declaration.
The argument is essentially intended to demonstrate the dangers of measures
which do not specifically aim at assimilation – dangers, above all, for the state.
The USA representative’s discourse expresses the necessity for the homogeniza-
tion of the state and its citizens as a guarantee of order. This conception can also
be seen in the position of the French representative:
Mr. ORDONNEAU (France) recalled that the historical development of France
into a homogeneous State had resulted from the extensive and rigorous application
of universal rights to all sections of the population. If it could be assumed that
all the rights stated in the Declaration would be applied in that matter article 31
would become superfluous
(E/CN.4/SR.73)
The French representative is clearly commending the homogeneity of the state,
anchoring his discourse in the history of France. Moreover, human rights and
the “homogenous State” are explicitly linked in a causal relation in this extract.
One can immediately see the goals that the state must try to achieve, with
the French state being an example of the embodiment of these goals. State
homogeneity is the result of “development” which was only possible by means
of the Declaration that emerged from the Revolution: here again, there is a
necessary link between human rights and homogeneity/assimilation. The French
representative thus reiterates a homogenous vision of the state, stipulating its
necessary conditions: the identification and respect of universal human rights.
The Commission on Human Rights and the eviction of minorities 143

Finally, coming back to the initial arguments justifying the deletion of theArticle,
he concludes with a reference to its redundancy.
The various arguments presented here were formulated by delegations rep-
resenting nation-states seeking to resolve the “minority problem” by means of
the single prism of the Universal Declaration. They tend towards a negation of
minorities and to the maintenance of the state ideologies dominant in the West.
They also raise paradoxes – between a universal conception of human beings
and the particularities of certain groups, and between a willingness to promote
rights and a desire to protect state prerogatives.
In the face of these positions, some delegations presented a diametrically
opposite vision of minority protection and the universality of the Declaration of
Human Rights. These discourses sought to justify the presence of the Article. I
shall now examine them more closely.

3.2. Proponents of the presence of the Article: towards a justification

Only a few voices spoke out against the vision described above – voices that
interrupted the relative consensus in this matter. They came primarily from the
representatives of what I shall call here the Eastern bloc. The speeches of the Be-
larusian, Soviet and Ukrainian representatives share the same goal: the retention
of the Article in question. Initiated by the representative of the Soviet Union, the
statements of the Eastern bloc argued for the inclusion of Article 31 by demon-
strating the lack of foundation of the arguments expressed in favor of its deletion.
The speakers attempted to stress the compatibility between individual and col-
lective rights, the essential and non-redundant character of the Article, and the
possible consequences of assimilation. Over and above the actual arguments,
these speeches reveal significant ideological dissension with regard to the kind of
universality being sought after. They therefore made the question of minorities
a subject of discursive argument in a criticism of Western capitalist states.
The initial comments of the Soviet representative raised the question of the
judicial compatibility between individual and collective rights:
Mr. PAVLOV (Union of Soviet Socialist Republics) supported article 31 which
was important, even in its imperfect form. Replying to the argument that a state-
ment in minority rights had no place in a declaration of rights of individuals, he
said that the clause was in complete conformity with the Charter where equal
rights of men and of states were mentioned in the same sentence.
(E/CN.4/SR.73)

For the speaker, there was no contradiction between the emphasis on human
rights under the aegis of individual rights and the presence of minority rights.
144 State divergences and the principle of universality: a protection through absence

Referring to the founding Charter of the institution, the Soviet representative


insisted on the equality of individual and state according to United Nations
principles.21 In fact, there is a problem here with the interpretation of the
terms “states” and “nations”, the latter having been used in the Charter. The
Soviet argument about compatibility primarily relates to the interpretation of
the term “minority”. For the Soviet representative this term refers only to na-
tional minorities,22 which must then be understood as part of a political structure
and an ideology of federation (cf. above). Accordingly, the nations (or ‘states”)
are equal, just as men and women are equal. For Mr. Pavlov, then, there is no
incompatibility: on the contrary, there is a re-affirmation of the principles of the
Charter. Furthermore, the position of the speaker can be situated in the context
of the Soviet conception of society, which clearly tends to assert the primacy of
the people and the group over the individual.
The Ukrainian representative, responding to arguments supporting assimi-
lation as the means of resolving minority problems, said the following:
Finally, the representative of the Ukraine observed that, in some cases, the practice
of a policy of assimilation might be misinterpreted and considered an extension
of colonialism. For example, if Hawaii were to become a state in the United States
and its population were deprived of the right to continue to develop its own culture
and languages, the United States might be accused of following a colonial policy.
The State should give more attention to raising small groups by encouraging the
free development of their particular characteristics.
(E/CN.4/SR.73)
The extract is certainly anecdotal – the allusion to Hawaii which became a state
of the USA in 1959 – is somewhat ironic! Nonetheless, it reveals a position
that sees a risk of colonization in assimilation. On the other hand, the Ukrainian
representative’s example is definitely oriented. In effect, he refers explicitly to
the United States, which – as we have seen – was one of the proponents of
assimilation and also exemplified the capitalist conception of the state. The
Communist vision of the relations between the state and its communities is
highlighted in this speech by the idea of development and progress (“to develop
its own culture”).
The representative from Belarus opposes one of the arguments given in favor
of the deletion of Article 31 – the relative dangers to the integrity of the state:
Mr. Stepanenko reviewed the experience of his own people which had suffered
economic and social oppression as a special linguistic and cultural group under
the Czarist regime. Only with the establishment of the Byelorussian SSR after
the October Revolution had it become free to develop its culture and language.
In the thirty years since its inception, the Byelorussian Republic had achieved
more than had been possible during several centuries towards raising the cultural
The Commission on Human Rights and the eviction of minorities 145

level of its people. For the problem was essentially cultural; it did not infringe
on citizenship, as the representative of the United States had seemed to imply.
Members of distinct ethnic and linguistic groups remained full citizens of the
State, despite the fact that they spoke their own languages in addition to the
common language. Those minority groups had not been artificially created; they
were the product of an historical development which could not and should not
be curtailed. Retention of article 31 would broaden the scope of the rights which
they could enjoy.
(E/CN.4/SR.73)

These comments support those of the Ukrainian representative in terms of the


cultural progress of a non-assimilationist state. In this regard, he refers to the
historical development of his country and, indeed, to the legitimacy of minori-
ties as a historical product. Taking up the question of language, he opposes
homogenous conceptions of the State in order to develop another approach to
competence in the matter of languages. On the whole, these comments convey
an opposition between oppression and freedom, the question of minorities being
included in a series of arguments that poses the Socialist State as exemplifying
the effective solution to the minority problem.
We should pause for a few moments and examine the reasons for these
notable divergences with regard to minorities, and to try to understand the issues
concerning minorities within the Communist bloc at that time. In order to do
so, we must go back to the Bolshevik period and to the internal contradictions
that confronted the Bolshevik theorists.
On the one hand, in order to placate volatile minorities demanding a certain
degree of autonomy, the central state had to guarantee the right to secession.
However, the Bolsheviks could not afford to ignore the centralist revolutionary
movement, which was essential to the pursuit of socialist unification. On the
basis of this internal contradiction and at the request Lenin, Stalin (1945 French
translation) drafted an article entitled “Marxism and the national and colonial
question”. As Tangac (1985: 166) emphasizes in his comments on this text,
“les thèses de Staline en 1913 avaient ceci de révolutionnaire, qu’à l’inverse
de la politique impériale suivie jusque-là et qui tendait à la russification des
populations, elle proposaient au contraire la reconnaissance de la diversité de la
population” [the theories of Stalin in 1913 were revolutionary in that, contrary
to the imperial policies carried out thus far, which tended towards a “Russian-
ization” of the different peoples, they proposed instead the recognition of the
diversity of the population].
In order to grasp the reasons for these theories, it is necessary to understand
that the fall of the Czarist Empire gave rise to the construction of a democratic
republic founded on a plurality of nations sharing the same vision of society,
146 State divergences and the principle of universality: a protection through absence

but made up of diverse population groups in terms of language and culture. The
question of nationalities within the Soviet world was raised primarily in order
to maintain the ideological central power. We should therefore understand the
comments of the Communist bloc members from the perspective of national
minorities included within a macro-nation with one ideal: revolution.
While this strategy proved to be effective for the maintenance of revolu-
tionary unity (in spite of the fact that there was, all the same, the danger of
separation), Stalin also had the “manipulative genius” to exploit the creation
and recognition of nationalities in order to further the Socialist revolution:
“L’exemple de la République Soviétique Russe montre que la fédération que
nous construisons sera un pas en avant vers l’unité des différentes nationalités
de la Russie, dans un Etat soviétique unique, démocratique et centralisé” [The
example of the Soviet Republic shows that the federation that we are construct-
ing will be a step forward towards the unity of different nationalities of Russia,
in a unique democratic and centralized Soviet state] (Stalin 1918, quoted by
Tangac 1985: 168). The objectives were clear. The recognition of national diver-
sity and of the existence of numerous groups, not necessarily sharing the same
linguistic or cultural characteristics, was linked with the pursuit of unity23 and
internationalization.
This brief detour into Soviet thought concerning minorities allows us, there-
fore, to understand the position of the Eastern bloc in the debate about the Article
on minority rights, as well as their continual insistence on the explicit recog-
nition of national minorities. While the inclusion of Article 31 was rejected in
the Commission, the Eastern bloc representatives continually demonstrated a
desire to bring this decision up again, whether within the Commission, the Third
Commission or the General Assembly, as we shall see.

3.3. Synthesis of the section

Behind the debates for or against the Article concerning minorities, fundamental
ideological divergences appear, which refer above all to the conception of the
state, its role and its relation to the people. The idea of the state seemed to
be omnipresent for both those supporting and opposing the Article’s inclusion,
and thus determined the direction of discussions about minority rights. It is
possible to consider that the very nature of the subject of minorities is based on
a conception of the role of the state and that, therefore, it is totally integrated
in a political ideology (no matter what position may be adopted). This seems
to convey the reproduction of state ideologies rather than a real interest in the
issue of minorities. In the end, the discussions about minority rights proved to be
The General Assembly: power relations and ideological divergences 147

an area in which power relations were at play, marking a polarization between


the East and the West, and allowing us to observe the emerging conflictual
international relations. It is through the prism of this ideological polarization
that I now intend to observe the final discussions – within the General Assembly.
This examination will allow me to reveal once again the ideological issues linked
to the Universal Declaration.

4. The General Assembly: power relations and ideological


divergences
As we follow the historical progress of this Article, our journey comes to an
end in the General Assembly. Indeed, the supreme body of the United Nations
received the final version of the Universal Declaration of Human Rights and
was responsible for making final modifications and ratifying it. The discussion
that I shall examine below demonstrates two fundamental aspects:
1. a polarization of points of view between East and West – between Communist
and Capitalist ideologies;
2. the decisions on the “fate of minorities” – decisions which will allow us to un-
derstand the legislative steps undertaken following the Universal Declaration
of Human Rights.

4.1. The Declaration as a culture of compromise

The final discussion in 1948 was the last stage of the lengthy process of the
elaboration of the Universal Declaration of Human Rights, a process marked by
divergences, as we have seen in the preceding sections.
In his introduction to the debate, the Third Commission President, Mr. Saint-
Lot, representative of Haiti, mentioned these disagreements while, at the same
time, emphasizing the necessity of reaching a consensus:
After the war, a time unpropitious for the success of such a venture, with rival ide-
ologies confronting each other, the United Nations representatives had sought out,
among old-established or recent political, economic, social and cultural rights,
formulas which might be accepted to men from four corners of the earth. The
text of the draft declaration represented a kind of common denominator for those
various ideas. It was perhaps not perfect, but it was the greatest effort yet made
by mankind to give society new legal and moral foundations; it thus marked a
decisive stage in the process of uniting a divided world.
(AG-9.12.1948)
148 State divergences and the principle of universality: a protection through absence

The President’s discourse stressed both the search for “formulas” that would
be acceptable to all and the difficulty of such an undertaking, which could only
remain imperfect. For the speaker, the draft text constituted a compromise based
on the search for a “common denominator”. While some may perceive in this
the acknowledgement of a kind of relativism, it is possible to consider this in-
troductory text as reflecting, on the contrary, a continuation of the search for
universality. This is marked discursively by the notions of a “common denom-
inator” and unity (“uniting a divided world”). The common denominator thus
constitutes the actual possibility of the universal undertaking, which goes above
and beyond dissension.
It is also important to see the President’s words in relation to the debates that
occurred in the Commission on Human rights (cf. above) and the Third Commis-
sion. Indeed, while the delegations were able to achieve a degree of consensus,
the Declaration did not give rise to unanimity. The disagreements about minori-
ties reflected a general tendency towards differences of opinion about the very
essence of the Declaration. The President’s words seem to anticipate the issues
of contention possible in the final discussions, implying a concern about the
eventual adoption of the Declaration.
In fact, the persistent disagreements about particular points in the Decla-
ration interfered with the attainment of consensus, and therefore prevented an
immediate vote on the text produced by the Third Commission. In a practical
sense, the disagreements related to various questions and divergences that ma-
terialized in the form of proposed resolutions. Among the resolutions relating to
the right of petition, the publicity to be given to the Declaration and the realiza-
tion of a human rights pact, we find some amendments with specific reference
to the question of minorities. These were mainly24 submitted by the Union of
Soviet Socialist Republics and gave rise to debates indicating the presence of a
significant ideological division.

4.2. Polarization of points of view and ideological division: minorities


in question

4.2.1. The Soviet endeavors and criticism of the Declaration


The division mentioned above arose from the divergences that I explained in
the preceding section, but assumed a highly symbolic dimension in the context
of the General Assembly. In fact, the question of Article 31, during the final
debates, became part of an undeniable risk of annulling the ratification of the
Declaration, the Eastern bloc using the disagreements about minorities to de-
mand an adjournment of the ratification. While the debates included minorities
The General Assembly: power relations and ideological divergences 149

as an object of discourse, we shall see that discursive arguments were related


to basic disagreements about the Universal Declaration itself. The discussion
arose, first of all, from an amendment proposed by the USSR: it appeared as a
last resort, having been rejected several times within the Commission on Human
Rights and the Third Commission.
The Russian amendment is set out as follows:
Additional articles proposed for the Draft Declaration (E/800)
(Corrigendum to document E/800, Union of the Soviet Socialist Republics):
Add to the text adopted a separate new paragraph in place of the corresponding
article 31 of the Geneva text rejected by the Commission:
“All persons, irrespective of whether they belong to the racial, national or religious
majority of the population, have the right to their own ethnic or national culture,
to establish their own schools and receive teaching in their native tongue, and to
use that tongue in the press, at public meetings, in the Courts and in other official
premises.”
(A/C.3/307/Rev.2/Corr.2)
We should indicate that this amendment, expressed in exactly the same manner,
had been clearly rejected by the Third Commission, reflecting a decision made
by the Commission on Human Rights on this matter several months earlier. The
formulation of this amendment brings to light several things. The first is the
deletion of the Article, decided in the Commission, and its re-proposal, formu-
lated slightly differently. The Soviet delegation had thus decided to remedy any
imperfections while reiterating the necessity of the Article. A closer examination
of the Article allows us to observe the absence of the explicit term “minority”;
however, its presence is marked by the phrase “irrespective of whether they
belong to the . . . majority”, directing the Article towards equal rights and to
its application for all. On the other hand, the Article/amendment attaches the
qualifier “national” to the term “culture”, thus anchoring the discourse in the
objectives of the Communist States. The Article then takes up again different
elements of the rights mentioned in the proposition of the Drafting Committee
and the Sub-Commission. Finally, we can see that the formulation emphasizes
individual rights (“all persons”). This formulation could be considered as an
ultimate form of compromise, explicitly rejecting the idea of special rights by
referring to rights of “all persons”. The proposition’s resolution is explained in
this way by its representative:
Mr. Vyshinsky then drew the Assembly’s attention to a defect in the draft decla-
ration which he considered to be fundamental: the absence of provisions guaran-
teeing the rights of national minorities. The Geneva text had contained an article
which, although incomplete, had dealt with the necessity of assuring to ethnical
150 State divergences and the principle of universality: a protection through absence

or religious groups the use of their mother tongue, the right to have their culture,
to have their own newspapers and to participate in the government of the State.
Although, in enunciating the general principles, the declaration stated that there
should be equal rights for all, there was nothing which corresponded to that af-
firmation in the concrete provisions proposed for giving full expression to those
rights.
(AG-9.12.1948)
Here, the emphasis on “national” minorities is even more explicit, including
all the rights associated with this term. However, it should be said that this
discourse was part of a long monolog in which the representative of the USSR
pointed out the various weaknesses of the Declaration to be voted on. His many
remarks all follow a similar line and refer to two levels of disagreement: (1)
about the discursive form of the Declaration and (2) about a disconnection from
reality. These two aspects of disagreement were closely linked to each other.
In fact, the criticism of the form of the Declaration was justified by the fact
that the discourse was too legalistic and abstract, tending towards empty and
fluid expressions (cf. also the extract above regarding the absence of “concrete
provisions”). The criticism about the Declaration being out of touch with reality
was based on the absence of concrete provisions, and by its expression in an
amalgam of concepts and ideas. According to the speaker, discourse had to be
anchored in actual human reality. As an example, the representative formulated
a criticism of one of the incriminating articles as follows:
As it stood, the article certainly contained fine ideas expressed in high-sounding
phrases, but the experience of the last hundred and fifty years had shown that
the realisation of an ideal came into daily conflict with existing facts. The appli-
cation of the principles laid down had therefore to be guaranteed and the Third
Committee had not done that.
(AG-9.12.1948)
This extract clearly demonstrates the argumentative logic of the USSR and al-
lows us to understand the representatives’ comments concerning the Article on
minorities. The distinction between general principles and the application of
concrete principles in the comment on minorities was further proof of the prac-
tical limitations of the Declaration. However, behind these arguments, it should
be noted that there were divergences on the actual conceptions of the state and
on the conception of a declaration full of good intentions but incapable of ef-
fectively promoting rights. The comments by the USSR representative, strongly
supported by the representatives of the Ukraine, Czechoslovakia, Belarus and
Poland, formed a solid bank of opposition, using the same arguments and high-
lighting the problem of the absence of an article concerning minorities. These
repeated complaints led to a proposition to postpone the vote on the Declaration,
The General Assembly: power relations and ideological divergences 151

formulated by the USSR representative and supported by the chorus of Eastern


bloc representatives:
The draft universal declaration of human rights should be worthy of its lofty
purposes. The draft before the Assembly was unacceptable in its present form
and there was no time to amend it properly. Hence he requested the General
Assembly to postpone the examination of the draft declaration of human rights
until the fourth ordinary session
(AG-9.12.1948)
The representatives of the Soviet Republics thus included the minority question
in an extensive criticism of the Declaration, which they considered “unaccept-
able”. This is a very strong word, and conveys the degree of tension in the
discussions on the Universal Declaration of Human Rights.

4.2.2. Response to criticism and commendation of collegiality


The responses of members who were opposed to the USSR amendment dealt
more with procedure and the necessity of accepting a document representing the
majority’s conceptions, than with the contents of the resolution. The President
of the Commission on Human Rights reacted as follows:
The amendments submitted by the USSR to the Third Committee, and rejected
by the Committee, were substantially the same as those submitted to and rejected
by the Commission of Human Rights. Whilst paying a tribute to the USSR dele-
gation for the tenacity with which it had defended its convictions, Mrs. Roosevelt
remarked that people sometimes had to co-operate loyally with the majority even
when they disagree with its views. She was convinced that the amendments which
the delegation of the USSR was at present putting before the General Assembly
would be rejected without discussion.
(AG-9.12.1948)
Mrs. Roosevelt’s argumentative strategy was the construction of a clearly pro-
cedural position, tinged with irony (“paying a tribute . . . for the tenacity”). She
thus signified that the debate provoked by the USSR’s resolution was out of place
and that, furthermore, what mattered was rallying around the cause of the ma-
jority. This extract also illustrates the power relations at play and tends, through
its tone, to minimize the importance of the Soviet arguments. The French repre-
sentative also conveyed that it was important to be reasonable and that, for the
smooth progress of the Declaration, it was necessary to acknowledge that some
propositions made by members could not be retained:
Mr. Cassin said he was very well aware of the shortcomings of the declaration.
France had submitted certain amendments which had been accepted, such as the
right to nationality and the general rights of intellectuals; but his country did not
152 State divergences and the principle of universality: a protection through absence

intend to leave the path trodden by others because not all its amendments had been
accepted, especially those concerning the right of petition. The delegation of the
USSR likewise knew that some of its amendments had also been adopted while
others had not, either because the substance of them was already covered by some
part of the declaration or else because they were more suitable for incorporation
in a later convention.
(AG-9.12.1948)

As this extract shows, France also responded to the USSR’s amendments, not
in terms of content, but in terms of procedure, therefore reiterating the neces-
sity of accepting that its propositions were not supported by the majority. At
the discursive level, the French representative’s response stressed the kind of
propositions that had been accepted (“right to nationality and the general rights
of intellectuals”) but also the items that France itself had had to renounce. He
therefore put France on an equal footing with the USSR, and his discursive jus-
tification as a whole led to the conclusion that there was no need to “leave the
path trodden by others because not all . . . amendments had been accepted”. This
discourse reveals a willingness to accept the rules to which all other members
of the United Nations were subjected. Furthermore, the final remarks of this
extract were intended to dismiss the relevance of the USSR arguments by indi-
cating that the representative’s requests were included in a different manner in
the Declaration – without, however, specifying exactly how these propositions
were present in the document.

4.2.3. Criticism of the state as the backdrop of discussion


While procedure assumed a place as important as the debates about the funda-
mental question themselves, this was clearly because what was happening was a
dialog of the deaf, and the impossibility of reconciling “Capitalist” and “Com-
munist” ideologies. Fundamentally, what was at play in these debates was the
question of the role of the state and an extremely clear polarization of positions.
The polarization came about gradually in the course of discussion, which strayed
from the different points put forward by the USSR (among them the minority
question) to end up at this central issue: the role of the state and the state’s re-
lation to the individual. The minority question occurred principally within this
ideological context. Indeed, the very idea of an ethnic or linguistic minority is
relatively absent from Communist logic. On the other hand, the discursive wran-
gling associated with this idea anchors the argument in the sovereignty of the
state and focuses on the necessity of including state duties within the state itself.
In the discursive logic of the Eastern bloc representatives, this meant protecting
the smaller states from the influence of the great powers other than the USSR.
The General Assembly: power relations and ideological divergences 153

We should probably understand this as an attempt by the USSR to avoid the


influence of capitalism on small countries that, for the time being, supported the
USSR. The criticism of the USSR by some members related to this. The USSR
was accused of promoting another form of state imperialism and of forcing its
members into a Communist vision of the state – a vision that could not be shared
by the representatives of the West. It therefore seems to me that the minority
question, as discussed within the General Assembly (no matter what position
was taken), reveals interests that were not, strictly speaking, concerned with
the problem of minorities. For the proponents of the deletion of the Article, the
best solution concerning minorities remained assimilation and homogenization
within the state. The argument of those supporting the presence of such an ar-
ticle, essentially aimed at counteracting a dissociation of the individual and the
state.
These discussions clearly demonstrate the beginnings of the tensions that
would mark the era of the United Nations, as well as the world order itself, i.e.
the cold war.
The USSR position proved to be in the minority. Its various amendments
were rejected one after the other, allowing the whole text of the Declaration to
be put to the vote. The Declaration was accepted by 48 votes with 8 abstentions.
The abstentions came from the USSR, Belarus, Czechoslovakia, Poland, Saudi
Arabia, the Ukraine, the Union of South Africa and Yugoslavia.

4.3. The fate of minorities: the pursuit of expertise

As far as the “fate of minorities” is concerned, the absence of a specific article


about them was “compensated” by the ratification of a resolution, which clearly
states the impossibility of including the minority question in the context of a
Universal Declaration. This resolution does not dissociate the fate of minorities
from human rights and, therefore, maintains a degree of ambivalence, as can be
seen below:
DECISION
C
FATE OF MINORITIES
The General Assembly,
Considering that the United Nations cannot remain indifferent to the fate of
minorities,
Considering that it is difficult to adopt a uniform solution of this complex and
delicate question, which has special aspects in each State in which it arises,
Considering the universal character of the Declaration of Human Rights,
154 State divergences and the principle of universality: a protection through absence

Decides not to deal in a specific provision with the question of minorities in the
text of this Declaration;
Refers to the Economic and Social Council the texts submitted by the delegations
of the Union of Soviet Socialist Republics, Yugoslavia and Denmark on this
subject contained in document A/C.3/307/Rev.2, and requests the Council to ask
the Commission on Human Rights and the Sub-Commission on the Prevention
of Discrimination and the Protection of Minorities to make a thorough study of
the problem of minorities in order that the United Nations may be able to take
effective measures for the protection of racial, national, religious or linguistic
minorities.
Hundred and eighty-third plenary meeting.
(10 December 1948 GA RES 217c)
It is worth examining this resolution because it allows us to understand how
the fate of minorities is seen in the institutional logic of the United Nations
and because it summarizes – in international diplomatic rhetoric – the apparent
reasons for the eviction of minorities from the Declaration of Human Rights.
The preambles to the resolution demonstrate the necessity of justifying the
absence of minorities while, at the same time, stressing their importance. The
justification has to do with the question of universality. I have therefore empha-
sized some formulae that convey the incompatibility between universality and
minority: these elements are highlighted in grey in the above text. It is possi-
ble to see a discursive opposition between, on the one hand, the impossibility
of uniformity given the particularity of each state and, on the other hand, the
“universal character” of the Declaration.
This opposition and reaffirmation of the essential element of the Declara-
tion infer a necessarily relativist approach to a perception of minorities, which
is clearly situated in relation to state specifics. The qualifiers “complex” and
“delicate”, which we have encountered several times (i.e. in Chapter 2, and the
debates of the Sub-Commission about Article 36), refer to the indecisive discus-
sions about what minorities are, and the place that they are supposed to occupy
within the infrastructure of the United Nations.
Subsequent to the debates mentioned above, this resolution passes over in
silence the ideological reasons and fundamental interests pertaining to the Arti-
cle’s absence and furthermore, expels the divergent points of view on the Univer-
sal Declaration itself, which discussions about minorities (among others) could
have brought to light.
Another significant element of the resolution is the ambivalence of the in-
stitution with regard to the fate of minorities. While the exclusion of minorities
from the Universal Declaration of Human Rights was effected, the General
Assembly’s solutions remained linked to the connection of human rights and
Conclusion 155

minority protection. This exclusion materialized in the relegation of minorities


to the context of the Sub-Commission, which was made responsible – through
its mandate – for the study of minorities. I use the term “relegation” here be-
cause, in the end, the Sub-Commission does not have much importance in the
UN system: its existence allows the demonstration of a certain interest in the
fate of minorities and the placation of some members, while at the same time
limiting this subject to a subordinate space. The propositions of the three states
which demanded a mention of minorities (and which had formulated an article
in this regard) were explicitly mentioned.
This resolution therefore allows us to understand the context in which dis-
cussion about legal instruments relating to minorities would be pursued.

5. Conclusion

It may seem incongruous to the reader that such an important place is given in
this book to the absence of an article relating to minorities. However, I believe
that this is necessary and that it assumes great significance if one seeks to
understand the place occupied by minorities within the United Nations. This
section has, in effect, allowed me to bring to light various phenomena:
1. The ambivalence of the space of expertise in the formulation of an article
concerning minorities and disagreements about the choice of words. What
seems to have been at play here, in fact, was not presence or absence but
rather how to formulate the presence of such an article. The discussions of
the Sub-Commission and the disagreements that characterized them have
allowed me to indicate the tensions relating to the nature of rights, the nature
of minorities and the means of their protection.
2. An exploitation of the minority question for ideological purposes. As we have
seen in the discussion, the minority question was part of a series of arguments
that were not really about minorities as such, but rather about the central role
of the state.
3. Finally, the study of the absence of the Article and the attempt to understand
its disappearance raise the problem of the Universal Declaration itself and,
in fact, the problem of the institutional ideology of the United Nations.
Several concluding remarks must therefore be made here, each one relating to
the connection between universality and minorities.
While the debates reveal different ideological positions, they also reflect
a constant: the indisputable nature of the principle of universality. What does
change, however, is the manner in which this universality is perceived. To be
156 State divergences and the principle of universality: a protection through absence

more precise, what arises here is the question of the elements that characterize
universality. While the representatives of the Communist States claimed uni-
versality, it was primarily from the perspective of the people. Accordingly, a
declaration that only focuses on the individual denies all form of that individ-
ual’s social connectedness and, at the same time, disconnects the state from the
human being. For the representatives of the West, however, the individual is at
the center of the conditions of possibility of universality. If equality is indeed
at the heart of universality, it is only conceivable within the nation-state and its
necessary homogeneity. A conception of universality anchored in the idea of
collectivity would interfere with this conception and therefore tend towards the
impossibility of universality.
In the discussions that we have examined, the relation between these two con-
ceptions leads to the idea of universality being only relevant to the individual. No
matter what the conception of universality may be, there is some transversality
in the visions conveyed. This relates to the fact that the prism of state ideologies
constitutes a guiding principle in terms of positions, which somehow includes
universality in state particularity.
This first conclusion allows us to come back to the place of minorities in
the debate. The following observations must be made. Firstly, minorities are in-
scribed in an ambivalent logic within the United Nations, which initially tended
to mention them in the Declaration, then gradually subsumed their rights within
the totality of human rights. Secondly, the localization of an article on minorities
contains within itself a series of difficulties, anchored in the above-mentioned
ambivalence and the concerns that minorities cause nation-states. Although
some spaces considered it possible to include such an article, they came up
against these concerns, as well as against the difficulty of defining minorities
while protecting everyone’s sensibilities. Thirdly, the place of minorities in the
discussions gradually became an area of argument that, basically, was not about
minorities but rather about conceptions of universality. Minorities, therefore,
became a truly political issue. The USSR insistence on demanding minority
rights was not due to an obvious willingness to protect minorities, subsumed
in Soviet logic by the means of nationalities, but rather to raise the question of
state ideologies. The subject of minorities was propitious for this purpose, given
the fears that minorities evoke in nation-states.
The question of linguistic minorities is part of these ideological issues. As we
have observed, their mention appeared almost automatically, taking up different
elements of the League of Nation’s minority treaties. Nonetheless, linguistic
minorities were only the subject of particular debate except through the truism
of minorities in general, rather than their own particular characteristics. As one
may imagine, if it is difficult to know what a minority is, it is also difficult to
Conclusion 157

know what a linguistic minority is, given the ideological hierarchy of a definition
of minorities according to their characteristics.
It remains the case that, in the course of discussions, one can see an insistence
on one of the elements of rights, i.e. the use and teaching of language. This
implies a recognition of the linguistic element of minorities, while indicating
language as either a factor in the protection of minorities (i.e. the language of
the minorities), or as an essential factor of assimilation (i.e. the language of the
country in which they reside). Certainly, one does not know which language it is
(and in any case the question was never posed), thus leading to a consideration
of language as an objective and easily demarcated criterion. However, one does
know the ideological place that language can assume according to political
conceptions. A different language questions and endangers homogeneity: on
the other hand, a different language justifies the recognition of nationality (in
Soviet logic).
These concluding remarks lead us towards another question relating to the
interpretation of the absence of an article on minorities. In his commentary
on the judicial instruments with regard to minority protection, Bokotola (1993)
describes this period as being against minorities. One can easily subscribe to this
vision of things, the explicit absence of minorities in the Declaration possibly
being a significant demonstration of this. Furthermore, this conception could
also be confirmed by the concerns inherent in the recognition of minorities and
the solutions suggested by various states.
It seems to me, however, that the analysis of discussions and positions neces-
sitates careful consideration of the vision of the United Nations being against
minorities. Indeed, one could say that the USSR was developing a vision for
minorities. This, however, would be simplistic. I have tried to demonstrate that
all discussions on minorities must be understood in the context of ideological
power relations and the questioning of universality. In my opinion, the debate
on minorities exists principally because of these questions: what is the state?
What is universality? Minorities are – on the political level – only one of the
more extensive ideological divergences. This again reveals the fragility of the
idealistic scaffolding of the institution.
These conclusions then lead to further questions. As we have seen, the United
Nations did not explicitly refuse to deal with problems concerning minorities.
This non-refusal introduces another paradox. The first element of the paradox
is raised by the recognition that universality is impossible in the matter of mi-
nority protection, justifying the latter’s absence. The second element relates to
the choices regarding the study of the protection of minorities, explicitly rele-
gated to discursive spaces responsible for dealing with questions about human
rights: the Sub-Commission in particular. This paradox would determine the
158 State divergences and the principle of universality: a protection through absence

subsequent history of minorities within the history of the United Nations. The
United Nations, in effect, remains institutionally connected to human rights but
detached from the Universal Declaration.
The next chapter will deal with the subsequent history of minorities, showing
the different ways in which the paradox would be resolved in the next stage that
concerns us here, i.e. the implementation of the Declaration by means of the
Covenants connected to it.
Chapter 5
Ambivalence, particularism and the reproduction
of state interests: a limited protection

1. Introduction
The development and adoption of the Universal Declaration of Human Rights
was an initial discursive event, a first act, that revealed certain ideological prin-
ciples and the production of knowledge about minorities within the context of
the United Nations. The study of this event has raised various questions and has
also demonstrated both institutional and political tensions regarding the protec-
tion of minorities. The event constituted the first interpretative framework for
the discussions that followed, which were based on it but also included some
changes.
I shall now focus on the second discursive event: the International Covenant
on Civil and Political Rights.25 It highlights the institutional and ideological con-
tinuity with regard to the Universal Declaration of Human Rights and reveals
certain modifications concerning the protection of minorities in the context of
the United Nations. In pursuing the task of understanding the place of linguistic
minorities in UN mechanisms the document is pertinent to this study for several
reasons.
1. The Covenant on Civil and Political Rights participates in the logic of the
Declaration and is directly attached to it. Associated with the Covenant on
Social, Economic and Cultural Rights and with the Declaration, the Covenant
on Civil and Political Rights is included in a macro-document entitled “The
International Charter of Human Rights”. It is thus the logical consequence of
the Declaration and introduces new possibilities for the expression of rights
and obligations, as I shall later demonstrate.
2. The Covenant has the capacity to force compliance, unlike the primarily con-
ceptual and ethical principles of the Declaration. This means that its contents
are subject to a controlling body, the Human Rights Committee, and that the
signatory States are obliged to provide information in accordance with the
rights enacted in the said document.
3. The Covenant is the first discursive event that explicitly includes an article
about minorities, thus allowing us to demonstrate the conditions of possibility
for its presence.
160 Ambivalence, particularism and the reproduction of state interests

I shall therefore demonstrate, in what follows, the institutional and discursive


processes that led to the presence of such an article in the Covenant on Civil
and Political Rights, attempting to answer the following questions.
1. How was the presence of an article on minorities accepted in the Covenant
on Civil and Political Rights, given previous discussions on the matter?
2. How were the rights formulated, and why were they formulated in this way?
3. What state interests were at work in these steps, what discursive arguments
arose, and what were the consequences?
I shall connect the different stages of the article’s construction with the various
discursive stages involved. Firstly, therefore, I shall discuss the steps taken by
the Sub-Commission leading to the proposition of an article. This highlights
the importance of a production of what I shall call strategic knowledge, in that
it is anchored in the debates examined in Chapter 4, and anticipates possible
objections to the inclusion of the Article.
Secondly, I shall discuss the debate within the Commission on Human Rights.
Situating the discussion of the article on minorities in the wider context of
discussions about the Covenant, I shall demonstrate the discursive arguments
over the various propositions of the Article. I shall thus reveal the existence of
different fears regarding an article on minorities, while indicating the necessary
presence of the Article in the Covenant. I shall then argue that the discursive
choices that determined the definitive Article were the product of a paradox that
compelled its presence while at the same time protecting state interests based on
the above-mentioned fears. Finally, I shall describe how the article was received
within the Third Commission. The examination of these debates will reveal the
discursive strategies that permitted the states to accept its presence while also
justifying their lack of commitment regarding minority protection.
The aims of this analysis are to demonstrate (1) a change of approach to
minorities, based on the presence of the Article as a kind of safeguard and (2)
the persistent construction of minorities as fundamentally problematic and dan-
gerous. This chapter, then, will focus essentially on the handling of the paradox
between the necessity of the Article’s26 presence and the concerns caused by
this. It is no longer a question of universality, but rather of the management of
particularity.

2. The strategic cautiousness of the Sub-Commission:


the emergence of an article
The absence of the article, so bitterly disputed in the Sub-Commission, ended
up as a resolution that was, in a way, a compensation awarded to those who had
The strategic cautiousness of the Sub-Commission: the emergence of an article 161

argued for its inclusion. The resolution gave the Sub-Commission, mandated
by the Commission to work within the context defined by the above-mentioned
document, a new form of legitimacy. This was given by the General Assembly
and, in fact, assumed considerable symbolic and institutional significance.
During the same session of the Assembly, a second resolution, providing for
the development of a Covenant on human rights, was adopted:
Resolution 207 (E)
PREPARATION OF A DRAFT COVENANT ON HUMAN RIGHTS AND
DRAFT MEASURES OF IMPLEMENTATION
The General Assembly,
Considering that the plan of work of the Commission on Human Rights provides
for an International Bill of Human Rights, to include a Declaration, a Covenant
on Human Rights and measures of implementation,
Requests the Economic and Social Council to ask the Commission on Human
Rights to continue to give priority in its work to the preparation of a draft Covenant
on Human Rights and draft measures of implementation.
Hundred and eighty-third plenary meeting,
10 December 1948

The objective of the Covenant, based on the Universal Declaration, was to make
it possible for the principles of human rights to be enforced, and to therefore enact
effective legislative regulations. During discussion in the General Assembly, it
quickly became apparent that the parameters of the measures to be taken, and
the establishment of bodies of control relating to the Declaration’s principles,
would be dealt with in a very different way.
There are several reasons for this. Firstly, we must consider the nature of
the document itself. The Declaration was above all a symbolic act, without any
element of compulsion; it can therefore be considered as a declaration of intent.
Secondly, the universal dimension of the Declaration, based on the enumer-
ation of principles and rights, was essentially incompatible with measures of
enforcement or practical measures, which would necessitate a consideration of
specificity and particularity. Finally, there is a practical reason: the implemen-
tation of rights raised numerous legal and political issues, which could not be
quickly or easily resolved. As the United Nations sought to anchor itself sym-
bolically, and as rapidly as possible, in the universality of human rights, the
implementation and specificity of those rights had to be subsequently envisaged
in order not to delay work on the Declaration.
In effect, the creation of a Covenant permitted a dissociation from the strictly
universalist undertaking (the term “universal” did not appear at this time in either
162 Ambivalence, particularism and the reproduction of state interests

the name of the Charter or the Covenant) in order to elaborate particular mea-
sures, including those dealing with possible contraventions of these regulations.
The two resolutions – on the fate of minorities (cf. Chapter 4) and on the
constitution of a Covenant on human rights27 – offered new possibilities to
the Sub-Commission’s members in their development of mechanisms to protect
minorities. Firstly, Resolution 217C reiterated the need for research into mea-
sures intended to protect minorities within the United Nations, and freed such
measures from the restrictions of universality. Secondly, the Covenant, while
including the general principles of the Declaration, was by its judicial nature
dissociated from universality; it therefore offered new possibilities of action in
the matter of minority protection. These new conditions were the premises on
which the members of the Sub-Commission would then proceed.

2.1. The search for multi-modal measures of protection: the first steps
towards the specification of an article on minority rights

During the second session of the Sub-Commission in 1949, the experts were
in possession of Resolution 217C, which explicitly concerned minorities. Dis-
cussion naturally revolved around the different possible ways of responding to
the issues of minority protection. Considering previous discussions, the Sub-
Commission approached these issues carefully, looking at the various possibil-
ities on offer.
Miss MONROE (. . . ) It was essential that the way in which protective measures
were to be set out, namely, their form, should be examined. At its first session, the
Sub-Commission had envisaged such measures in the form of an article in the
Universal Declaration of Human Rights but that proposal had not been accepted
by the Commission of Human Rights. Consideration might therefore be given to
such measures in the form of an article in the draft Universal Covenant of Human
Rights, or another document, a separate charter covering minorities throughout
the world, or in the form of a bilateral agreement.
(E/CN.4/Sub.2/SR.24, p. 3)
Miss Monroe’s speech situated the general context of the Sub-Commission’s
work. She did not, however, introduce any discussion of the contents of the
measures, focusing instead, quite emphatically, on their form. The form is both
attached to the future (“should be examined”) and the past (“had envisaged such
measures in the form of”), as well as to several alternatives (“in the form of . . . ,
or of . . . or in the form of”). This emphasis is important at this stage, for two
reasons:
1. The specification of form would, to some extent, determine the contents of
the protective measures.
The strategic cautiousness of the Sub-Commission: the emergence of an article 163

2. The only generic form envisaged – inclusive of all the proposed alternatives –
had to do with legal instruments, highlighting the institutional importance of
such an undertaking (“separate article”; “separate charter”; “bilateral agree-
ment”).

Of the three possibilities mentioned here, preference would be given to the inclu-
sion of an article in the Covenant. The idea of a separate document was endorsed
by some members but was quickly set aside. The reasons for this have to do with
the strained relations between the Commission and the Sub-Commission: the
Commission wanting to maintain control over the work of the Sub-Commission
through the imposition of a strict mandate, and the Sub-Commission occasion-
ally making decisions that fell outside its mandate, then being called to order by
the Commission. The proposition of a new document, therefore, which had not
previously been referred to by the political body was, in this context, seen as a
transgression of the limits imposed on the Sub-Commission. The possibility of
bilateral instruments did not receive any real interest. These were a throwback
to a structure considered to be redundant – the minority treaties of the League
of Nations era.
The Covenant offered a renewed possibility for the progressively legal ac-
knowledgment of minority rights – a possibility recognized and referred to by
several members. Furthermore, the proposition of an article connected to the
Covenant fell into the domain of the Sub-Commission: it was explicitly fore-
seen that the Sub-Commission would, when appropriate, examine elements of
the Covenant that were relevant to its field of activity.
In spite of this, and consequent to the disappointment related to Article
36, the Sub-Commission decided to proceed differently. While affirming the
inclusion of an article on minorities in the Covenant as an objective of the Sub-
Commission, the experts opted for the establishment of different preliminary
steps. In effect, an examination of the discussions of the second session reveals
how careful the members were about the immediate investigation of the legal
recognition of minorities. They chose, initially, to approach the question differ-
ently, in a way that would allow some consensus and create the conditions in
which it would be possible to construct an Article on minority rights.

2.1.1. Three discursive strategic positions in the first steps


Three kinds of positioning could then be seen, reflecting three preliminary steps
towards the creation of what would become Article 27. These positions consisted
of the different responses to the fate of minorities, beyond the Declaration, each
one drawing its own conclusions from the failure of Article 36. They can be
distinguished as a “pragmatic” position, an “exhaustive” or “thorough” position
164 Ambivalence, particularism and the reproduction of state interests

and a “minoritizing”, even “minoritist”, position. I shall briefly describe each


position.
The position that I describe as “pragmatic” responded to the text of Resolu-
tion 217C by seeking immediate and effective answers to the fate of minorities.
This position is anchored in a necessarily problematic and complex view of
minorities. Those who held this position considered that, faced with such com-
plexity, it was important to put forward effective, practical propositions rather
than becoming lost in conjectures. In other words, they rejected a strictly concep-
tual or general vision of the minority question, given the impasses that occurred
in the discussions within the Commission and the General Assembly. They main-
tained that the Sub-Commission ought to focus on particular points relating to
the protection of minorities. This position, therefore, renounced the search for
global solutions, while still seeking adequate measures for the protection of
minorities.
This position was, furthermore, a form of compromise between an emphasis
on particularities, on the one hand, and the constant search for general principles,
on the other. The renunciation was primarily motivated by practical reasons and
the search for some means of action over and above the strict framework of the
system’s jurisdiction. This position tended to rationalize the minority question
by attempting to find propositions that could easily be applied and formulated
and could transcend any possible conceptual dissension.
The second position, which I describe as “thorough”, considered that before
examining any means of protection at all, it was necessary to undertake a detailed
and attentive study of both the general considerations and the well-documented
aspects of situations concerning minorities, as stipulated in the extract below:
M. SHAFAQ stated that it was obvious, from an examination of the documents,
that the General Assembly as well as the Economic and Social Council and the
Commission on Human Rights, had encountered difficulties in formulating a prin-
ciple which was sufficiently comprehensive and in adopting a uniform solution
in regard to the complex problem of minorities. He did not think that it would
be possible to find such a formula. He suggested therefore that a scientific and
methodological study of this problem should be made and that the differences of
status of the various minorities throughout the world, from both a social and a
political point of view should then be studied.
(E/CN.4/Sub.2/SR.24, p. 3)
As we can see here, although there was a renunciation of a uniform solution,
there was a search for thoroughness by means of rigor and a minute examination
of the facts. One idea underlying this approach is that this examination would
definitely lead to a demonstration of differences and give rise to classifications
of minorities. This in turn would allow a definition of the term “minorities” to be
The strategic cautiousness of the Sub-Commission: the emergence of an article 165

made, based on the common denominator of particular cases. The search for a
definition was thus envisaged, not as a theoretical task, but rather as an objective
and serious undertaking based on a study of all the possible and particular
factors. Those who held this view would, moreover, eventually come up with
the definition of the term “minorities”, attempting to thereby resolve the paradox
between the universal and the particular.
The third position, which I have somewhat ironically called “minoritist”,
is represented by the discourse of the Soviet expert who, taking up again the
exact arguments described in the preceding section, found himself quite isolated
within the Sub-Commission.
The Soviet representative cast himself in the role of an apostle of the rights
and total recognition of minorities, accusing all the other members of the Sub-
Commission of being unaware of the real issues concerning these populations,
and denouncing their feeble vision of protection. He rejected the “pragmatic”
position because it tended to minimize the impact that the UN ought to have in
protecting and recognizing minorities. He rejected the “thorough” position be-
cause it tended to intellectualize a question that he believed was straightforward
and therefore did not need to be studied at all. The experience of the USSR,
according to the speaker, could be considered as the only effective solution.
The Soviet representative’s speeches took the form of long monologs, more
often than not unconnected to other positions, and were characterized by a total
absence of dialog. This gave the impression that the Soviet discourse was not
part of any discursive sequence in the discussion as a whole. It was as if the
USSR position were immutable and that consequently, while the members of
the Sub-Commission granted him the right to speak, his words were not in any
way integrated into the whole discursive constellation.
These three positions allow us to identify the tenor of the debates during
the second session and to demonstrate the different visions of the treatment of
minorities that then emerged, with the following consequences:
1. The thorough position led to studies of minorities throughout the world, di-
rected towards the creation of a definition and classification of minorities.
2. The pragmatic position led to the search for carefully formulated propositions
of some clearly identified measures relating to the fate of minorities, which –
for want of legislation – could promote particular rights.
3. The “minoritist” position, in spite of its contentious form, emphasized the
necessity of judicially anchoring the fate of minorities, and of systematically
retaining the objectives that had to be achieved.
It must be admitted that the first two approaches were similar in their attempt to
proceed with a degree of caution in the establishment of governing mechanisms.
Furthermore, the members of the Sub-Commission, even though not all entirely
166 Ambivalence, particularism and the reproduction of state interests

convinced about one another’s approaches, rallied around a similarity in terms


of conceptions, thus avoiding any ideological impasses. Finally, while the possi-
bilities encompassed by the Covenant-to-be were still kept in sight, uncertainty
about the tenor of the document resulted in the establishment of intermediate
stages.

2.1.2. The establishment of the conditions necessary for formulation, and the
conceptual premises
From 1949 to 1951, the members of the Sub-Commission elaborated different
strategies for the protection of minorities, gradually coming to propose three
different resolutions:
1. A proposition of practical recommendations, addressed to the states via the
intermediary of the Assembly, on the particular measures to be taken with
regard to minorities, in the absence of international legal dispositions (1949–
1951).
2. A proposition of a definition of the term “minorities”, connected to an account
of the steps already taken by some states concerning the legal recognition of
minorities (1949–1951).
3. A proposition of an article in view of the Covenant on Human Rights (1950,
1951).
The first two resolutions were introduced early on, and were slightly modified
over the three years. Furthermore, they were explicitly linked and were included
in the agenda as a single item under the title: “Examination of the proposed reso-
lutions developed in the third session and relevant to the definition of minorities
and interim measures to be taken for their protection”.
The third proposition appeared after the members’ acceptance of the first
two. I therefore consider the two initial steps – the “pragmatic” and “thorough”
approaches – as preliminary stages in the proposition of an article on minority
rights. I shall therefore endeavor, in what follows, to understand the reasons
for the existence of these two resolutions28 and to explain how they allow us,
conceptually and institutionally, to understand the proposition of the Article.

2.1.2.1. Language rights as an interim and practical measure


The first recommendation to be formulated, in the logic of pragmatism pre-
sented above (and produced in its entirety below), is a resolution addressed
to the Member-States of the United Nations, concerning linguistic rights. The
resolution was drafted for the first time during the second session of the Sub-
Commission in 1949,29 and was the Sub-Commission’s first discursive act con-
nected to Resolution 217C.
The strategic cautiousness of the Sub-Commission: the emergence of an article 167

I believe that a detailed examination of this resolution will allow us to see


the various strategies at work in the pragmatic approach while, at the same time,
we pursue our quest to understand the modes of the production of knowledge on
minorities, as well as the ways in which minorities, including linguistic minori-
ties, are constructed discursively. I shall distinguish between two stages in the
analysis of this document, corresponding to two discursive movements. The first
concerns the legitimization of the resolution and its institutional introduction,
and the second concerns the resolution itself, and its conceptual justification.
The first part is presented in the following extract:
Interim measures to be taken for the protection of minorities30
(Adopted by the Sub-Commission at its third session)
1 The Commission on Human Rights
2 Recommends that the Economic and Social Council adopt and transmit to
General Assembly the following draft resolution, on interim measures to be
taken for the protection of minorities:
3 “The Economic and Social Council,
4 “Considering that the problem of the fate of minorities was refereed to the
Commission of Human Rights and the Sub-Commission on Prevention of
Discrimination and Protection of Minorities by the General Assembly in part
C of resolution 217 (III),
5 “Considering that the Sub-Commission on Prevention of Discrimination and
Protection of Minorities has adopted a definition of minorities for purposes of
protection by the United Nations in resolution C of its third session; and that the
Sub-Commission is now engaged in further study of the problem of minorities
in order that the United Nations may be able to take effective measures for
such protection,
6 “Considering that the rights traditionally desired by minorities were exten-
sively set forth in the minorities treaties and declarations which came into
force after the First World War,
7 “Considering that many of the rights traditionally claimed by minorities pro-
claimed in the Universal Declaration of Human Rights, and that, pending the
coming into force of an international covenant on human rights, it is not fea-
sible fully to determine what further measures will become necessary for the
protection of minorities,
8 “Considering, however, that neither the Universal Declaration of Human Rights,
nor the draft international covenant on human rights fully covers the right of
using the minority language before the courts, or of teaching the minority
language as one of the courses of study in State-supported schools,
9 “Recommends that, as an interim means displaying its concern for minorities,
the General Assembly adopt and so place the full weight of its authority be-
hind, the following draft resolution on facilities to be provided for minorities,
168 Ambivalence, particularism and the reproduction of state interests

recommended by the Sub-Commission on Prevention of Discrimination and


Protection of Minorities at its second session:
This first element of the proposition of the Sub-Commission is particularly
interesting because it provides two major pieces of information: firstly, about
the affirmation of the guiding principles of the resolution and, secondly, about
the justification of the document’s existence. Par. 2 and the title of the document
immediately indicate the existence of this resolution as relevant to “interim
measures”. It is therefore firmly anchored in the search for practical measures
intended to remedy the temporary lack of mechanisms of protection for minority
rights. It is explicitly related to Resolution 217 (par. 4) and its existence is
justified by means of the mandate attributed to the discursive space at the origin
of the resolution. Par. 5 – absent from the first draft of 1949, given the lack
of definition clearly established in 1950 – emphasizes the relationship between
the creation of a definition, measures of protection and the current resolution.
Furthermore, the affirmation of studies in progress highlights the work carried
out by the Sub-Commission at the request of the General Assembly.
After the mention of the instruments of the League of Nations concerning mi-
norities (par. 6), par. 7 justifies the existence of this resolution as an interim step.
The existence of rights in the Declaration is mentioned, thereby reiterating that
minorities were already protected and that any supplementary measures would
only be developed with the aim of improving the protection already instituted.
This paragraph, however, also highlights the necessity of envisaging the con-
struction of measures in explicit connection with the Covenant – this instrument
being considered as one of the keys to the establishment of appropriate measures,
no matter whether an article on minority protection were present or absent.
Par. 8 introduces a slight difference to the preceding statements, marked by
the connector “however”. It concerns the fact that, in spite of the affirmation
of the Pact as the general context for the elaboration of measures of protection,
it was nonetheless possible to propose interim measures. We must understand
that, in 1950, the members of the Sub-Commission took cognizance of the first
attempts to draft the Covenant, and had remarked upon the absence of an article
on minorities. They were confined to the proposition of an article, but their
characteristic cautiousness led them, in the context of the pragmatic position,
not to direct all their efforts towards this point, and to bring up the possibility
of establishing practical measures for protection outside the Covenant.
Accordingly, they opted for linguistic rights, considered to be those that were
not being dealt with at all. This must be understood in connection to other ele-
ments of “classic” rights: religious freedom and the freedom of assembly and
association being explicitly formulated in the Declaration and in the planning
of the Covenant (cf. also par. 13 below). The mention of this gap or absence
The strategic cautiousness of the Sub-Commission: the emergence of an article 169

emphasized that the Declaration did not provide for everything and that the pro-
posed resolution was therefore justified and justifiable. The contents (linguistic
rights) of the resolution were thus justified here. I shall later come back to the
other reasons for this choice. Finally, the last paragraph (par. 9) of this first part
introduces the actual resolution, while also affirming the transitory nature of
this procedure (“interim means”).
The introductory paragraphs allow us to delineate three main justifications
for the existence of this resolution:
1. as a form of completion of Resolution 217,
2. as part of the processes intended to solve the problem of minorities,
3. as an interim measure, making up for the lack of existing instruments or
instruments in the process of being constructed.
Once the preamble had been set out, the resolution was formulated as follows:
10 “The General Assembly,
11 “Considering that the discriminatory treatment of minorities has been and
could be a major cause of international tension leading to the war,
12 “Considering at the same time that rights accorded to minorities entail a
corresponding obligation on their part towards the larger society in which
they live and must not, therefore, be used to threaten or undermine the unity
and security of States;
13 “Considering that provision has been made in the Universal Declaration of
Human Rights and in the Draft International Covenant on Human Rights for
the recognition of such traditionally minority rights as freedom of religion,
speech, assembly and association;
14 “Recommends that, in the interest of enabling recognized minority groups to
maintain their cultural heritage when they desire to do so, Member Govern-
ments should provide adequate facilities, in districts, regions and territories
where they represent a considerable proportion of the population, for:
15 “1) the use in judicial procedure of languages of such groups ;
16 “2) the teaching in state-supported schools of languages of such groups,
provided that such groups request it and that the request in reality expresses
the spontaneous desire of such groups;
17 “Affirms that such groups shall possess these or other rights so long as they are
not used for the purpose of threatening or undermining the unity or security
of States.”
(E/CN.4/351)
Once more, various formulae, initiated by “considering”, maintain the justifica-
tion of the resolution without, however, focusing it under the institutional angle.
No mention is made of either the Commission or the Sub-Commission, who
170 Ambivalence, particularism and the reproduction of state interests

disappear in favor of a single enunciator, namely, the General Assembly. Here


again, we have formulations that concern the justification of the resolution from
a conceptual perspective.
Accordingly, par. 11 concerns the general context of the existence of minority
protection, emphasizing the consequences of discriminatory treatment for the
world order. The following paragraph (12) stipulates the ethical obligations of
minorities, putting forward the conditions for the possibility of rights (“entail a
corresponding obligation on their part”). These are also the conditions for the
possibility of the enactment of the resolution. They are closely attached to the
express refusal by minorities to use these rights for ideological purposes (“to
threaten or undermine the unity and security of States”).
Par. 13 takes up par. 7, but the discursive treatment is slightly different. While
they both reaffirm the importance of these instruments, the first emphasizes
the expectation and the second establishes the facts – namely, that minorities
were protected by various articles of the Covenant. Neither takes up again the
argument of the absence of linguistic rights.
With par. 14, we enter another discursive stage – that of the actual resolution –
which conveys the recommendations contained in the resolution: recommenda-
tions emerging from previously established premises. The recommendations
specifically concern the measures that must be taken by the Member-States in
order to provide “facilities” for minorities to use their own language in judicial
procedure (par. 15) or in teaching (par. 16). The recipients of these facilities
were indeed minorities; however, the resolution itself contained a series of ele-
ments permitting a more specific understanding of what minorities actually are.
Minorities here are “recognized” and “represent a considerable proportion of
the population”. Moreover, these rights were not to be automatically provided:
the recipients had to “desire” them. The idea of desire is repeated in par. 16 in
the clause “provided that such groups request it” and emphasized by the phrase
“that the request in reality expresses the spontaneous desire”. In this tautolog-
ical formulation, there is an emphasis on the necessity (1) that the rights not
be used for political or manipulative (hence the use of the term “spontaneous”)
purposes and (2) that they not be automatic. Finally, par. 17 stresses the necessity
that these rights do not undermine the security of the state in any way, thereby
reiterating par. 12.
Various elements can thus be observed in the second part of this resolution:
1. The affirmation of the protection of minorities as a necessary prophylactic
measure to avoid conflict.
2. The obligations of minorities to the states, in anticipation of particular fears
expressed in the General Assembly.
3. A delineation of minority groups.
The strategic cautiousness of the Sub-Commission: the emergence of an article 171

4. A maintenance of state prerogatives by means of the establishment of safe-


guards, so that these rights did not become automatic and obligatory princi-
ples.
The practical dispositions foreseen by the resolution were therefore part of an
attempt by the Sub-Commission to unite its members through a discursive ac-
tion in which they could be seen to be almost unanimous, and which would not
interfere too much with the different ideological positions within the Commis-
sion.
One may therefore wonder whether the creation of a resolution specifically
relating to linguistic rights could be interpreted in any other way than by means of
the argument set forth in the resolution (the absence of any effective disposition
in the relevant Human Rights instruments). Indeed, it was not merely a question,
in the extract presented above, of linguistic minorities, but also of one of their
minority rights – language. There was no discussion of the concept of minorities,
or of their definition. In reaching agreement on the linguistic rights to be granted
to minorities, the path of practical, effective and non-ambiguous measures had
to be followed. The emphasis on the language element allowed discussion on
national, religious and ethnic minorities to be avoided, these being too nebulous
or even politically sensitive.
The question of linguistic rights initially allowed significant ideological di-
visions to be avoided, and effectively applicable measures to be considered in an
“objective” manner: language issues were seen as easily defined and somehow
a-problematic. Furthermore, the members of the Sub-Commission, seeking a
consensus that would give real weight to their propositions, did not want to burn
their bridges. Through this resolution, they attempted to show the Commission
that they respected the hierarchy. At the same time, they indicated, by means
of a proposal on linguistic rights, the significance of a solution through law of
minority questions.
The concern for justification and the reaffirmation of previous decisions
made in the context of the Commission and the Assembly were processes that
tended to speak of the existence of minorities – which was essential for the
Sub-Commission, given its mandate – while also indicating the importance of
respecting the logic and ideology of the institution.
There were thus two strategic levels in this resolution. The first concerned
the search for consensus within a given discursive space. The second entailed
a way of subtly bringing about a possible evocation of rights to be included
in the Covenant. The resolution was thus an interim stage in the work of the
Sub-Commission itself, and a measure of the approach directed towards the
Commission. This process combined with the approach extolled by those who
emphasized the necessity of anchoring the protection of minorities in thorough
172 Ambivalence, particularism and the reproduction of state interests

and objective facts, with the ultimate goal of identifying a common denominator.
It is the latter approach that will be analyzed below.

2.1.2.2. Definition as the objectification of research and the basis


of the proposition of the Article
The second document mentioned above – a planned resolution on the definition
of minorities – was part of the “thorough” position. The proponents of this
approach, as we have seen, affirmed the need to establish a rigorous framework,
based on objective data, which would allow an effective consideration of future
measures to be taken in order to protect minorities. Moreover, this approach
answered one of the often repeated criticisms of the Sub-Commission: of not
being able to say what a minority is.
This document, the result of a long drafting process, is interesting in the form
that it assumed. Far from being concise, expressed in one or two sentences, it is
instead a text that enumerates particular common features of minorities, gives
criteria for the identification of minorities and highlights the criteria that would
prevent a group from being identified as a minority.
The quest for a definition was thus explicitly seen from the perspective of Ar-
ticle 217C, and was anchored in the search for measures of protection. The title
of the resolution clearly conveys this: “Resolution on the definition of minorities
for purposes of protection by the United Nations”. While the Sub-Commission
made the decision to create a definition for the purposes of protective measures
in 1949, it was only in the following year that the proposition was debated
and endorsed, resulting in the document, reproduced below, that I shall analyze
presently. As the document in question is very long, I intend to analyze it ac-
cording to its different sections. The aim of this analysis is to specify how it can
be considered as the condition for the possibility of the creation of an article in
the context of the Covenant, within the context of the Sub-Commission.
The draft resolution is a text comprised of a series of paragraphs leading to
the creation of the definition, which then incorporates the various elements (de-
scriptive factors, objections, matters of complexity) put forward in the preamble.
It is as if the definition had to be fully justified and had to encompass the largest
parameters possible, as I shall demonstrate below.
The resolution begins by establishing a factual context with regard to the
recognition of the existence of minorities, the description of how they are char-
acterized and the objectives of their protection:
The Commission of Human Rights,
1. 1. Recognizing that there are among the nationals of many States distinctive
groups, usually known as minorities, possessing ethnic, religious, or linguistic
traditions or characteristics different from those of the rest of the population,
The strategic cautiousness of the Sub-Commission: the emergence of an article 173

and that among these are groups that need to be protected by special mea-
sures, national or international, so that that they can preserve their tradition or
characteristics in question.

This paragraph reveals various elements considered as facts by the Sub-Commis-


sion: firstly, the existence of groups of “nationals” of a state who differ from the
rest of the population and are characterized by ethnic, religious and linguistic
differences. The first descriptive element poses the existence of minorities in
keeping with the classic characteristics encountered in the treaties of the League
of Nations. There was, however, discussion among the members of the Sub-
Commission about the expression of “cultural” characteristics and the use of
the term “racial”. They decided on the term “ethnic” for two reasons:
1. The term “racial” is not based on any scientific data. (“The term ‘racial’
was eliminated because the Sub-Commission considered that so-called racial
groupings are not based upon scientific facts and tend to become indistinct
as a result of evolutionary processes, intermarriage, and changes in ideas or
beliefs about race” [E/CN.4/Sub.2/119, p. 14].)
2. The term “ethnic” encompasses the notion of culture and cultural minor-
ity. (“The term ‘ethnic’ was considered to refer to the whole of a group’s
physical, cultural and historical heritage; hence specific mention of ‘cultural
characteristics’ was considered unnecessary” [E/CN.4/Sub.2/119, p. 14].)
We should notice that only the term “racial” was subject to debate, the other two
being considered as evident and transparent.
The second fact was that some of these groups had to be protected. The
formulation used here suggests that some of the groups described previously
had to be protected, but not all of them. This gave rise to a series of objections
regarding the term “minority” for certain groups (cf. below).
Finally, the third fact: measures of protection were seen as “special” mea-
sures, intended to express and develop the specific characteristics of minorities.
This description was then associated with a series of reservations that tended
to exclude some groups from protective measures; these would thus be excluded
from the definition.
2 2. Recognizing, however, that not all such groups pose this problem of protec-
tion, which is not required;
3 a) When the group in question, though numerically inferior to the rest of the
population, is the dominant group therein; and
4 b) When the group in question seeks complete identity of treatment with the
rest of the population, in which case its problem covered by those articles of
the Charter of the United Nations, the Universal Declaration of Human Rights
174 Ambivalence, particularism and the reproduction of state interests

and the draft international covenant on human rights that are directed towards
the prevention of discrimination,
It can be seen here that mention is made of the existence of groups that fit the
description in par. 1 but for whom, for particular reasons, protective measures
could not be considered as relevant.
Par. 3 deals with the social and political position of minority groups. The first
exception concerns the refusal to include groups that are in a dominant position
even though they are minorities in terms of number. This statement reveals
an often implicit and underlying criterion in the term “minority”: the criterion
of number. In par. 1, there is no such element, the writers preferring the terms
“distinctive” and “different . . . from . . . the rest of the population”, which do not
necessarily include the numerical criterion. In this way, the members of the Sub-
Commission brought about a displacement between number and dominance.
The second kind of groups excluded from measures of protection were those
that claimed total equality (“complete identity of treatment”). These groups
would thus not be included in the definition of minorities as far as measures
of protection were concerned. Such groups bring to light the prevention of
discriminatory measures as conceived by the Sub-Commission. The underlying
logic in this must be understood. In effect, the claim for identical treatment was
no longer relevant when practical measures of protection were brought up. The
dynamics of the institution had clearly introduced the notion of going beyond
universality in the matter of minority treatment; all those claiming equality were
thus necessarily covered by the principles of the Declaration of Human Rights.
This was, moreover, an interesting way of specifying the difference between
universal rights and particular measures to protect minorities, while avoiding
the disturbing notion of separatism.
The exclusion of these groups from protective measures and, by extension,
from the definition, led the members of the Sub-Commission to present some
factors to be taken into consideration. By this means, they sought to highlight
the complexity of the issue of protection and, in fact, the complexity of creating
a definition.
Although these factors were not conveyed as dangers,31 they concerned the
limitations of the granting of protective measures and, consequently, the lim-
itations imposed by the definition’s complexity (the tenor of which was still
unknown!). The definition, by means of these factors, is associated with partic-
ular stabilizing factors, while some of its discursive components are justified
(see below):
5. 3. Recognizing, at the same time, that any definition that is made with a view
of their protection by the United Nations must take into account complex
situations such as:
The strategic cautiousness of the Sub-Commission: the emergence of an article 175

6. a) The undesirability of imposing unwanted distinctions upon individuals


belonging to a group who, while possessing the distinctive characteristics
described above, do not wish to be treated differently from the rest of the
population;
7. b) The undesirability of interfering with the spontaneous developments which
take place such as a new environment, or that of modern means of communi-
cation, produce a state of rapid racial, social, cultural or linguistic evolution;
8. c)The risk of taking measures that might lend themselves to misuse amongst a
minority whose members’ spontaneous desire for a tranquil life as contented
citizens of a State might be disturbed by parties interested in fomenting
amongst them a disloyalty to the State;
9. d) The undesirability of affording protection to practices which are inconsis-
tent with human rights as proclaimed in the Universal Declaration of Human
Rights; and
10. e) The difficulties raised by claims of status of a minority by groups so small
that special treatment would for instance, place a disproportionate burden
upon the resources of the State.
These factors thus enter into a thorough and complex process, and tend towards
a formulation of a definition incorporating all the cases in which measures of
protection would be undesirable. The above passage primarily concerns these
cases. Protective measures were, therefore, undesirable in various situations:
1. when they could force people to be considered as minorities even though they
do not wish to be (par. 6, → refusal to set obstacles in the way of assimilation);
2. when they could prevent development (par. 7, → justification of natural
assimilation);
3. when they could be used for disloyal purposes (par. 8, → anticipation of the
usurping of these measures to endanger the state);
4. when they could sustain practices in contradiction to human rights (par. 9,
→ reiteration of the primacy of human rights);
5. when they could entail financial difficulties for the states32 (par. 10, → bal-
ancing of state obligations).
These factors all combine the reservations of Sub-Commission members in their
quest for a definition. They also reflect research into the many cases in which a
definition intended to ensure the establishment of protective measures could be
problematic.
This discursive process led to the creation of a definition, formulated as
follows:
11. 4. Resolves that from the standpoint of such measures of protection of minori-
ties as the United Nations may wish to take, and in the light of the exceptions
and complexities set out above:
176 Ambivalence, particularism and the reproduction of state interests

12. a) The term minority includes only those non-dominant groups in a popula-
tion which possess and wish to preserve stable ethnic, religious or linguistic
traditions or characteristics markedly different from those of the rest of the
population;
13. b) Such minorities should properly include a number of persons sufficient by
themselves to develop such characteristics; and
14. c) The members of such minorities must be loyal to the State of which they
are nationals.

The definition is introduced by the reiteration of its anchoring in the context of


measures of protection, emphasizing the necessity of including the information
presented (“objection”, “factors”). It is formulated in three stages as follows:

– Stage 1: the criteria that apply to the identification of minorities-stable linguis-


tic, religious and ethnic characteristics; clear differentiation; non-dominant;
voluntary (par. 12);
– Stage 2: a specification of the ratio necessary to be considered as a “minority”
(par. 13);
– Stage 3: the duty of loyalty of minorities towards the state (par. 14).

In fact, the definition is able to incorporate most of the objections and factors
presented previously. Par. 12 echoes part 1 (characteristics), par. 6 (principle of
voluntary choice) and par. 3 (principle of non-dominance). Par. 13 incorporates
elements of par. 10. Par. 14 echoes par. 1 (nationals) and par. 8 (disloyalty).
The definition does not really add anything fundamentally new to the field
of the discursive considerations about the construction of minorities, apart from
the numerical ratio, perhaps, or the element of non-dominance being explicitly
mentioned. It was nonetheless intended to be thorough and objective, based on
the numerous problems that could be caused by the establishment of measures of
protection. The essential point is that, for the members of the Sub-Commission,
the definition constituted a response to the concern for protection, which can be
clearly seen in the discursive form taken by this process: the constant reiteration
of a definition for the purpose of protective measures, as well as the vacillation
between the search for a definition and the quest for protective measures, and
between limitations and specification. The definition delighted the proponents
of the thorough approach, who demanded objective rigor in the development of
protective measures. It did not worry the others, given the numerous exceptions
it contained. It was accepted by 10 votes to 2. It thus constituted a new kind of
condition of possibility for the formulation of an article on minority rights, and
was a credit to the smooth functioning of the Sub-Commission.
Skepticism remained, however, with regard to the possibility of achieving
unanimous agreement, with the Soviet and Polish experts expressing their dissat-
The strategic cautiousness of the Sub-Commission: the emergence of an article 177

isfaction on several points of the proposition (primarily, the absence of national


minorities). Apart from these “dissident” positions, consensus was evident.
The two approaches, united by the means described above – the definition
and the resolution – allow us to understand how it was possible to envisage
the formulation of an article on minorities within the Sub-Commission. Indeed,
the definition and the rigor that characterized it allow us to think that, on the
strength of the consensus achieved, the formulation of an article would be clearly
delineated and justified.
The resolution on linguistic rights was an important stage in terms of the de-
velopment of consensus among the members and, because of this, contributed to
the formation of a strong position with regard to the issue of minorities. Through
the forms of agreement attached to it, it made the constitution of an article based
on consensus possible. Furthermore, it allowed the Sub-Commission to act on
its work by proposing immediate and practical measures.
Finally, although the Soviet and Polish members persisted in maintaining
a marginal position in the discussions, they did not object to the formulation
being written. Faithful to their position, they considered that the real issue would
reside in the drafting of the said article.

2.2. A strategic article, a reproduction of state interests

It is my opinion that the formulation of an article and therefore consensus was


made possible by the multi-modal procedure discussed above. Following the
resolution of 1949, then the resolution of 1950 on the definition, the first ex-
plicit discussions on the formulation of an Article in the Covenant occurred.
Considering that members had reached agreement on the definition and that
the resolution on linguistic rights permitted the proposal of interim rights, it
was then possible for them to concentrate on the proposition of an Article. This
did not pose any real difficulties as the definition had, in a way, accounted for
the complexity of the phenomenon: an Article attached to the definition could
therefore be succinct. Nonetheless, in keeping with their cautious approach and
convinced of the necessity to not in any way offend state sensibilities, the ex-
perts would strategically develop an Article which, as we shall see, annulled
numerous fears and possible objections in its formulation.
The Article appeared in a draft resolution submitted to the Commission on
Human Rights in 1950. The preamble links the formulation of the Article to
two elements: (1) Resolution 217C and (2) the creation of the definition. The
Article was introduced by the statement “la Sous-commission estime que le
moyen le plus efficace d’assurer cette protection serait d’insérer dans le Pacte
178 Ambivalence, particularism and the reproduction of state interests

un article” [‘The Sub-Commission estimates that the best possible way to ensure
this protection would be to add an article within the Covenant’] (Resolution E
1950), thereby giving a powerful signal to the Commission. After the preamble,
the Article was formulated as follows:
Persons belonging to ethnic, religious or linguistic minorities shall not be denied
the right in community with the other members of their group, to enjoy their own
culture, to profess and practise their own religion, or to use their own language
(E/CN.4/641 – E/CN.4/Sub.2/140)

In fact, the Article – the way in which it was formulated and presented – reveals
a real cautiousness on the part of the Sub-Commission members.
There is no doubt that Article 36 (then 31, then rejected) of the Universal
Declaration of Human Rights left a bitter taste. However, those discussions also
revealed the concerns of the states, allowing members of the Sub-Commission
to identify the components that would be problematic. The Article presented to
the Commission, therefore, carefully avoided these elements: this was achieved
by particular choices of language.
1. The Declaration of Human Rights, and human rights in general, are based
on an individual approach. In order to avoid the repetition of previously
raised problems, the proposition of the Article clearly introduced the notion
of individual rights in its formulation, marked by the term “persons”. This
point was refuted by the Soviet representative but did not pose any problem
for the other members.
2. A formulation that extolled too great an obligation for states had caused
objections with regard to the proposition ofArticle 36, as well as the resolution
on linguistic rights that the definition had taken into account. Therefore, in
the current Article, there is a total absence of any mention of the state and its
obligations. Moreover, given that the states still had to implement measures
of protection, the proposition of the resolution on linguistic rights made up
for any gaps in the Article.
3. Finally, the formulation of the text in the negative (“shall not be denied”),
rather than an edict of rights, prevented the supporters of assimilation from
immediately objecting on the grounds that these rights would incite certain
groups to constitute themselves as minorities and thus cause the assimilation
process to fail.
Apart from the wording of the Article as such, another form of cautiousness can
be observed in the twofold presentation of the resolution: the presentation of a
single resolution of both the proposition of the Article and the resolution on the
measures concerning languages. Initially, the writers even proposed, by means
of an explicitly titled formulation, to consider the resolution on languages as an
The strategic cautiousness of the Sub-Commission: the emergence of an article 179

alternative in case the Commission rejected the proposition of the Article. This
was deleted following objections by some members who deemed it unnecessary
to construct the resolution in the form of an alternative. The whole procedure and
the co-existence of the Article and the resolution in the same document convey
the cautiousness with which the members of the Sub-Commission submitted
their proposition.
The last indication of caution is the place assumed by the definition of mi-
norities in the proposition of the Article. While the definition is mentioned in
the preamble, it is not actually incorporated in the resolution itself: the two is-
sues are clearly separate, in anticipation of possible dissensions and the risk its
presence could entail with regard to the presence of an article on minorities.
In fact, the members seemed to imply a distinction between the definition as a
necessity in the implementation of their work and the definition as potentially
problematic in view of its political impact.

2.3. Synthesis of the section

The internal procedure of the Sub-Commission can be considered to have con-


sisted of two movements:
1. The quest for consensus by incorporating different approaches to the protec-
tion of minorities, permitting the identification of the conceptual premises of
the Article;
2. A strategic cautiousness intended to anticipate state objections and to render
the proposition acceptable.
If we compare the Sub-Commission’s discussions of 1949–1951 with those of
1947, we can see that this first stage in the appearance of an article on minorities
in the context of the Covenant reveals a change of approach to minority pro-
tection. This conceptual shift primarily involves the quest for consensus and an
inclusion of particularities within the discursive reflections, as well as a consid-
eration of the realities of the institution – namely, the power relations among the
various discursive spaces.
In summary, the Sub-Commission was able to formulate the proposition of
an article due to the following factors:
– the legitimacy of the task, conferred upon it by the Commission;
– the disengagement of universalist considerations, related to new possibilities
offered by a Covenant intended to establish practical measures;
– an alliance between the pragmatic and thorough approaches, which allowed
for different modes of understanding the fate of minorities;
– a consideration of previous discussions and, consequently, a formulation that
prevented possible disagreements.
180 Ambivalence, particularism and the reproduction of state interests

Although the procedures and factors of change described above made the pres-
ence of an article on minority rights possible, they also contributed significantly
to the reproduction of state discourse and a primarily negative conception of
minorities, which were then perceived as dangerous. The body of expertise in
this case did not make the mistake of inexperience, consisting of writing a text
without taking into account all existing ideological conceptions and power rela-
tions. In this sense, the Sub-Commission seems to have understood the lessons
of the past. As we shall see in what follows, the strategic expertise of the Sub-
Commission was effective.

3. An accepted presence, a formulation under discussion:


the debates of the Commission

The various draft resolutions of the Sub-Commission contributed to the creation


of the conditions of possibility for the formulation of an article. These condi-
tions took into account both their institutional relation to the Commission and
the different positions represented within its own space. Nonetheless, the Com-
mission did not immediately enter into discussion about the propositions of the
Sub-Commission. Both the proposition on linguistic rights, formulated in 1949,
and the proposition on the definition were only considered the following year.
The question of the inclusion of the Article in the Covenant was not specifically
studied until 1953.
This can be explained by the Commission’s initial reluctance to incorporate
the Article in the Covenant. The first drafts contained no mention of it. While
the question was definitely raised, discussion of it was continually deferred. The
objections raised in relation to the Declaration lingered, even though they no
longer specifically concerned the issue of universality.
Several parameters, however, allow us to understand the factors that led to the
discussion of the inclusion of an article on minorities. These will be considered
in the next section, which will also allow me to reveal the discursive strategies
that brought about the creation of the Article in question.

3.1. The conditions of possibility for acceptance

While the discussions in the Commission about the inclusion of an article on


minorities in the Declaration of Human Rights were primarily about presence
versus absence, everything was quite different when it came to the discussion, in
1953, of an article to be included in the Covenant. Although initial discussions
An accepted presence, a formulation under discussion 181

on minority rights in the context of the Covenant did not reveal huge support for
their inclusion, various factors allow us to see rapid agreement on the presence
of the proposed Article, and a tendency forward in the debate over the form this
would assume in the Covenant.
We should indicate at once that the reasons for this discursive shift are hypo-
thetical, and that the discussions analyzed do not always explicitly account for
the factors I shall describe below. My hypotheses are supported by the nature of
the Covenant itself, previous debates about the Covenant with regard to other
articles, and by the means chosen to discuss this point.
1. The result of the discussions in the General Assembly about the Declaration
demonstrated the particular and heterogeneous nature of minority issues.
The General Assembly had recognized the necessity of dealing with these
issues but also acknowledged a diminiution of universal relevance in minority
questions (cf. the preceding section). Furthermore, the Covenant, being less
symbolic but more compelling, allowed minority rights to be considered in
the context of human rights while the imposition of possible restrictions on the
articles still remained possible. The Covenant is very different, discursively,
from the Declaration: it is about the constraints of universality and allows
the expression of particularities.
2. The second factor concerns the procedure envisaged by the Commission to
deal with the question of an article on minorities, and is connected to the
first factor. While the Covenant, from the moment of its implementation,
contained possible loop-holes, the delegations had several opportunities to
test their effectiveness (as in, for example, Article 2 that provided for possible
derogations of the rights expressed in the Covenant, or the freedom of religion
being counter-balanced by derogatory clauses related to public security). The
Article on minorities, therefore, appearing as a supplementary article – i.e.
as an addition to the initial drafts – was discussed later. It is possible to
believe that prior experiences allowed the protection of minority rights to be
envisaged without this constituting too much constraint.
3. The third factor also concerns previous discussions about the Covenant, but
involves something more specific: the acceptance of an article on self-deter-
mination. When this article was discussed, there were two opposing theories.
Some members considered that the principle concerned all populations, in-
cluding minorities. Others, however, explicitly refused the granting of this
right to minorities, arguing that it only addressed colonized peoples. The in-
terpretation of this article remains unclear today. It nonetheless remains the
case that, no matter what position was adopted, the presence of an article
on minorities gave rise to the belief that the statement of specific rights for
minorities implicitly signified that minorities were not covered by the Article
182 Ambivalence, particularism and the reproduction of state interests

on self-determination. For those who wanted minorities to be included in


this Article, the presence of an article on minorities did no more than specify
rights, without excluding minorities from the principle of self-determination.
Indeed, it is possible to see some manipulation of the interpretation of rights
in both of these Articles.
The explanatory factors described above are not perhaps the only ones. They
allow us, however, to bring to light the instrumental (the nature of the Covenant),
procedural (the dissociation from a definition of the article) and strategic (the
mention of minorities as solving the ambiguity of the Article on self-determi-
nation) conditions of acceptance.
All members of the Commission came to support the presence of an article
on minorities for the above reasons, ensuring that its presence was preferable
to its absence, and that it was sufficiently malleable so as to not become too
restrictive. The Article now had to be formulated. This is the subject of the next
section.

3.2. Three propositions, three conceptions of minorities and their protection

3.2.1. Three propositions


In order to develop this document, the Commission had in its possession three
different propositions:
1. the proposition by the Sub-Commission;
2. the proposition by the USSR;
3. the proposition by Yugoslavia.
These propositions were formulated as follows:
1) The Sub-Commission on Prevention of Discrimination and Protection of Mi-
norities,
Having considered the problem of the fate of minorities referred to it by the
General Assembly in its resolution 217c (III),
Having adopted, in resolution C of its third session, a definition of minorities for
purposes of protection by the United Nations,
Is of the opinion that the most effective means of securing such protection would
be the inclusion in the International Covenant on Human Rights of the following
article:
“Persons belonging to ethnic, religious or linguistic minorities shall not be denied
the right in community with the other members of their group, to enjoy their own
culture, to profess and practise their own religion, or to use their own language.”
An accepted presence, a formulation under discussion 183

2) Union of Soviet Republics: Insertion of a new article in the Draft Covenant


on Civil and Political Rights
Insert the following new article in the Draft Covenant on Civil and Political
Rights:
“The State shall ensure to national minorities the right to use their native tongue
and to possess their national schools, libraries, museums and other cultural and
educational institutions.”
(E/CN.4/L.222 [translated into English from Russian])
3) FEDERAL PEOPLE’S REPUBLIC OF YUGOSLAVIA:
“Every person shall have the right to show freely his membership of an ethnic
or linguistic group, to use without hindrance the name of this group, to learn the
language of this group and to use it in public or private life, to be taught in this
language, as well as the right to cultural development together with other members
of this group, without being subjected on that account to any discrimination
whatsoever, and particularly such discrimination as might deprive him of the
rights enjoyed by other citizens of the same State.”
(E/CN.4/L.225)
These three propositions differ in their divergent points of anchorage. The propo-
sition of the Sub-Commission (1), as we have seen, proposes an article charac-
terized by an expression in the negative, an emphasis on individual rights and
the absence of any mention of the state.
The proposition by the USSR (2), in contrast, stresses formulations in the
affirmative (“ensure. . . the right”), collective rights (“minorities”) and an ex-
plicit mention of the obligations of the state (“The State shall ensure to minori-
ties. . . ”). Furthermore, only “national” minorities are mentioned. Finally, the
Soviet proposition insists on the institutional aspects of rights and the freedom
to create appropriate structures (“schools, libraries, museums”). Basically, the
Soviet proposition is anchored in dispositions already established in the Union.
The Yugoslav proposition (3) is situated in the articulation between individ-
ual and collective rights. It proposes a much more detailed article and a clear
connection between the principles of non-discrimination and minority rights.
Moreover, this proposition emphasizes the enjoyment of special rights without
any consequence of deprivation of rights for all citizens in the territory of a
state. This formulation can be considered as the strongest and most demanding.

3.2.2. The arguments


In order to achieve a greater understanding of the propositions presented above,
it is of interest to focus on the way in which they were introduced by their
respective authors. As the proposition by the Sub-Commission has already been
184 Ambivalence, particularism and the reproduction of state interests

discussed at length above, I shall concentrate now on the propositions by the


Soviet Union and Yugoslavia.
The Soviet representative introduced his proposition as follows:
Mr. MOROSOV (Union of the Soviet Socialist Republics)
The Soviet Union delegation maintained that the rights of minorities formed
an essential part of that body of principles, which must be enunciated in the
covenant. It was true that two articles already provided certain safeguards for
national minorities, namely paragraph 1 of article 2, on non-discrimination, and
article 19, on the equality of all persons before the law. But so far there was no
direct reference in the covenant to the right of national minorities to use their
native tongue and develop their national culture. It was essential that that right
be explicitly secured, and since national cultural development was impossible
without appropriate educational institutions, his draft text proclaimed the right
of national minorities to possess their national schools, libraries, museums and
other cultural and educational institutions.
(E/CN.4/SR. 368)

Mr. Morosov again takes up the idea of the fundamental component and the
place that minorities must necessarily occupy in the future Covenant. Accord-
ingly, and in anticipation of objections already expressed during discussions of
the Universal Declaration, he stresses the particularities of his proposition in
comparison with the already elaborated articles.
Mr. Morosov pursues the development of his argument on the well-founded
absolute of his proposition, by illustrating the diversions of a political system
that does not recognize minority rights:
Thus, in 1947 a little over $3 per annum was spent on the education of an African
child in a certain territory, whereas $50 a year, or seventeen times as much, was
spent on the education of a European child in the same territory. Educational plans
for 1951 greatly increased the disparity, expenditure for an African’s education
being estimated at a figure that was only one fiftieth of that foreseen for the
education of a European. It was obvious that in such circumstances the indigenous
population could not develop. For the time being, he would not quote any further
examples, but would confine himself to those introductory remarks.
(E/CN.4/SR. 368)

While one can certainly see in this discourse a criticism of the state as conceived
by the West and a denunciation of the social inequalities associated with the
process of colonization, this extract also allows us to understand the way in
which the Soviet representative and his acolytes perceived the notion of minority,
in an acceptance that differed radically from that of Western states. In fact,
Mr. Morosov’s illustration envisages the actual notion of colonization from the
An accepted presence, a formulation under discussion 185

perspective of “national” minorities, thus proposing a widening of the meaning


of the notion of “minorities”.
The choice of this illustration fundamentally arises from the Soviet position
with regard to the notion of the self-determination of populations, which is the
subject of a separate Article in the Covenant on Civil and Political Rights (cf.
conditions of acceptability, above). Putting colonized populations parallel with
minorities is a way of endorsing the article on minorities with a very general
meaning and a highlighting of the link between self-determination and minority
rights, the latter being no more than a specification of the former.
Furthermore, the USSR proposition contrasts the proposition by the Sub-
Commission, which annuls the responsibilities of the state and abstains from any
explicit mention of “national” minorities. This opposes the Soviet position, as the
Sub-Commission’s proposition would allow the Western states to maintain their
policies of assimilation. Once more, minorities become an issue of discursive
argument and power relations.
Let us now examine the Yugoslav proposition, introduced in the following
manner:
Mr. JEVREMOVIC (Yugoslavia)
They were in fact essential human rights, upon which the exercise of the other
rights very largely depended. After the upheavals which had taken place in the
course of history, certain peoples, or large groups of them, had been compelled to
live outside their original frontiers, and had thus found themselves in the position
of a minority deprived of all rights and only too often subjected to various forms
of pressure, which had even gone so far as to endanger their lives.
(E/CN.4/SR. 368)

For Mr. Jevremovic, these rights are to be considered as rights that he calls
“essential”. The term “essential rights” should be understood – as the discursive
justification following his introduction demonstrates – as meaning rights like
all the fundamental rights enunciated in the mechanisms of human rights. In
fact, the Yugoslav discourse as a whole tends to consider that the Article on
minorities concerns everyone.
The representative continues by anchoring his discourse in the history of the
Yugoslav people, indicating the lack of recognition by some of the nationals liv-
ing in another territory, denationalization and significant discrimination against
them. He nonetheless seeks to appeal to all states by evoking the pervasive nature
of the minority question:
In view of its own people’s experience, theYugoslav delegation strongly urged that
certain essential rights should be granted to minority groups generally. It believed,
moreover, that there were few peoples which, at some time in their history, had
186 Ambivalence, particularism and the reproduction of state interests

not been obliged to defend themselves against attempts to de-nationalize them


by those who had been temporarily their masters.
(E/CN.4/SR.368)
The discursive anchoring of an article on minorities should be of interest to all,
and cannot therefore be considered as the granting of special rights. In order
to appeal to all, the representative implements a discursive shift, passing from
“minority groups” to “de-nationali[zation]”, thus allowing his proposition to be
situated at the level of the historical development of modern states.
The discursive strategies to justify the proposed articles can therefore be
seen to differ. One strategy consists of praising one’s own legislation and openly
criticizing the policies of others. The other strategy seeks to demonstrate the
relevance of its proposition to all, and to justify its contents by means of the
history of the state to which the representative belongs.

3.3. Identifying the “right” proposition: a political decision

It is particularly interesting to have these three propositions available because the


contrasting views that they convey allow us to demonstrate, firstly, the diverse
positions of the states and also, above all, the emergence of the fundamental
issues relating to the protection of minorities.
According to the institutional tradition of the UN, and given the acceptance
of discussion of the Article, these propositions would be accepted, rejected or
amended. This procedure resulted in discussions of the texts, revealing the differ-
ent ideological tendencies and argumentative strategies at work in the selection
of the “right” formulation.
Even though I shall ruin the suspense – although there isn’t really any! – I
shall state at once that the Commission retained, with a very strong majority,
the proposition by the Sub-Commission. It was to be amended, certainly, as we
shall see, but achieved a real consensus. My analysis will focus primarily on
this point – the reasons for the acceptance of this formulation.
I therefore propose a reading of the discussions that will bring to light two
aspects elicited by the co-existence of these three propositions: fears concerning
minorities and how to appease them. What should be shown is:
1. how the Yugoslav and Soviet propositions gave rise to a discussion centered
on the fears aroused by the view of minorities conveyed in these propositions;
2. how the proposition by the Sub-Commission allowed these fears to be ap-
peased.
First, I shall show the different kinds of “fears” aroused by the Soviet and Yu-
goslav propositions: (1) fear that minorities could claim separation and auton-
An accepted presence, a formulation under discussion 187

omy and (2) fear of possible uprisings caused by the creation of new minorities.
Secondly, I shall demonstrate why the states found that the proposition by the
Sub-Commission appeased such fears and how they would go about reiterating
the restriction of rights inherent in the article formulated by the expert body.

3.3.1. The fears: separatism and the creation of new minorities


One of the pivotal themes of the discussions within the Commission was the
notion of privileges, which then provoked discussion of fears about separatism.
This subject of discourse, in fact, fundamentally concerned the interpretation of
the rights to be granted to minorities, and the status of these rights. For some,
there was a risk involved in the formulations of both the USSR and Yugoslavia:
the risk of enacting rights that constituted privileges, which could then poten-
tially result in demands for autonomy that would be unacceptable to the state.
As an illustration of this, the Chilean position appears to be the most eloquent:

Certain minorities might seek more than non-discrimination, wishing to secure


privileges which would evolve into a different type of rights from those enjoyed
by the national community as a whole. The recognition by the State of what he
would describe as “ super ” rights would imply the provision of special services
and special institutions at extra expense, and entailing special legislation. That
process might well culminate in a minority’s claiming autonomy within the State.
His delegation was fully prepared to concede the principle of non-discrimination,
but it was firmly opposed to the grant of special prerogatives which might well
create many difficult problems.
(E/CN.4/SR.368)

Here, the question of privileges relating to the granting of rights to minori-


ties is discursively placed at the same level as the notion of special rights and
the consequences of such rights. This is clearly shown in the repeated use of
the adjective “special” (“special services. . . special institutions. . . special legis-
lation. . . special prerogatives”). This litany highlights the judicial, institutional
and financial consequences. Furthermore, the formulation tends to reject the no-
tion of different treatment which, as one can read between the lines here, would
go against the principle of equality (implicitly expressed by the acceptance of
the principle of non-discrimination, anchored in the fundamental principles of
the equality of all human beings).
The use of the expression “super rights” also reflects this. The fear expressed
here is the fear of minorities being granted rights that could supplant the rights
of the ordinary citizen, lead to the demand for autonomy and cause a lack of
equality detrimental to the majority. The discursive construction of minority
188 Ambivalence, particularism and the reproduction of state interests

rights as a privilege thus leads to the re-affirmation of the principle of equality,


and its use to oppose special rights.
The Chilean representative’s criticism is primarily directed at the Soviet and
Yugoslav propositions, which both clearly delineate positive rights and state
obligations in this regard. He was not the only one to criticize these propositions
by denouncing the danger of separatism that they imply. The question of priv-
ileges and the risks involved can be found at various stages in the discussion,
and constitutes one of the fundamental criticisms of the two propositions.
In response to the accusation of constructing an article that confers priv-
ileges to minorities, the Soviet and Yugoslav representatives, along with the
representatives of Poland and the Ukraine, who supported the Soviet proposi-
tion, developed a line of argument in the opposite direction. They asserted that
these rights were not special rights and were not in any way privileges, but were
instead fundamental rights.
The extracts below illustrate this argumentative position and allow us to
consider two aspects of response to the question of privileges:
1) Mr. JEVREMOVIC (Yugoslavia)
During the recent discussion, various delegations had described the rights of
minority groups as “ special ” rights. That was incorrect, for identical rights were
enjoyed by the majority group of the population.
(E/CN.4/SR.368)

2) Mr. DRUTO (Poland)


The Soviet Union proposal indicated positive ways in which minorities could be
assured of their rights, which he must emphasize were not privileges. Experience
showed that if they were free to use their native tongue and to possess their national
institutions, internal bonds were created beneficial to the State as a whole. It was
mere casuistry to argue that if minorities enjoyed the rights described by the Soviet
Union proposal they would cease to take any interest in the national language and
culture.
(E/CN.4/SR.369)

The first response was given by the Yugoslav representative (1) and concerns
the fact that these rights are the same as those granted to majority groups. They
should not therefore be considered as special rights. In a way, the Yugoslav
response involves the fact that it is necessary to specify rights for minorities
precisely because they do not have the same characteristics as the majority
groups, and therefore are subjected to a kind of inequality. The argument is
then about the interpretation of what can be considered egalitarian, thereby
responding to objections tending to view minority rights as “super rights”.
An accepted presence, a formulation under discussion 189

The second response, by the Polish representative (2), differs from the first.
Declaring himself a supporter of the Soviet proposition, Mr. Druto dismisses
the view of rights as privileges and the subsequent consequences (autonomy,
separation from state interests) by describing these rights as a possibility of
bonding with the state, which in turn would greatly benefit from a controlled
emancipation of minorities. One infers that this benefit was primarily linked
to the retention of minorities within the state rather than to their detachment,
which fits in with the Soviet logic at that time. What is in question here is
an outright rejection of the notion of special or “super” rights, as well as an
emphasis on the interests of the state in the granting of minority rights. The
question of privileges and special rights must therefore be seen in relation to
the national ideological conceptions and state interests involved. The discourses
that considered minority rights as privileges were, in fact, generally associated
with the fear of separatism.
The discourses that considered minority rights as fundamental rights, not
privileges, were situated in the logic of the federal state, according to which
the only means of preventing separatism was to grant a number of rights to
minorities. Implied in this, we can see the practical necessity for the states in
question to give rights to minorities in order to maintain an ideology based on
the progress and development of populations that are different but pursue the
same political objective.
The opposition between the Eastern and Western blocs was thus maintained.
Both positions greatly contribute to the interrogation of the notion of the state
itself. Furthermore, no matter what the position, it is possible to consider that
the same fear was involved: disunity and separatism. The responses to this fear,
however, remained diametrically different.
The question of privileges also aroused fears about the creation of new mi-
norities, i.e. the constitution of particular groups likely to claim minority status.
This concern was profound and was based on a series of discourses that tended
to minimize the problem of minorities. The fear of the creation of new minorities
was anchored in both theYugoslav proposition, considered as too demanding for
the states and as granting too many rights to minorities, and the Soviet propo-
sition which, by means of the label “national minorities”, seemed to implicitly
include native populations.
Too many privileges, therefore, would not only incite existing minorities to
separatism, but would also encourage groups that had never been recognized
by the state as minorities to constitute themselves as such. For this reason, a
significant majority of states, who considered that there were no minorities in
their territory or any problems concerning minorities, opposed theYugoslav and
Soviet propositions.
190 Ambivalence, particularism and the reproduction of state interests

Several representatives insisted that, in their territory, the question of minori-


ties did not arise. The Chilean representative highlighted this fact, while also
implying that there were groups that should not, under any circumstances, be
given minority status.
The first clause of the Yugoslav proposal would have to be applied universally,
since it did not relate to existing minorities, but tended to create and generalize
what it would describe as a “minority complex”. It would be unwise to encourage
the disruptive tendency to form new minority groups. (. . . ) He had particularly in
mind countries, particularly Latin-American countries, which, while possessing
no minorities in the true sense, had indigenous communities integrated within the
national community, foreign colonies which had their own institutions but which
were not minorities, and immigrants who were gradually being integrated in the
country’s life.
(E/CN.4/SR. 368)
This extract seems to be particularly interesting. First of all, it provides a clar-
ification of the fears relating to the formulation of an article about minorities.
The use of the term “disruptive tendency” reveals a shift away from the term
“separation”. It is no longer a question here of recognized minorities, but of
minorities that could emerge as such. The term “separation” is therefore inap-
propriate. However, the intrusion of the term “disruptive” refers to the fears
caused by the “legal” recognition of difference.
The Chilean representative then makes use of the intrinsic ambiguity of
the term “minority”. For the purposes of argument, he makes a distinction be-
tween “minorities in the true sense” and “indigenous communities”, “foreign
colonies” and “immigrants”. The reference to these categories clearly demon-
strates a recognition of distinct groups within a given territory, but also an evident
refusal to include them in the semantic field of the term “minority”.
We should try to grasp the underlying logic here. Indeed, a basically negative
conception of the notion of minority can be seen, as well as a justification of the
process of assimilation. While fear with regard to the creation of new minorities
and the consequences involved is evident, the Chilean representative’s discourse
tends to construct the danger of such articles for those groups likely to claim
minority status.
The Chilean representative goes on to argue, in a reference to the efforts of the
State of Mexico, that the incorporation of native groups into the whole national
community greatly contributed – according to him – to the development of these
populations, which had previously been marginalized in Mexican society. He
concluded by saying: “Ces groupes n’ont en rien bénéficié des avantages de la
civilisation moderne; . . . ce serait pur romantisme que d’en faire des minorités”
[These groups have had no benefit from the advantages of modern civilization;
An accepted presence, a formulation under discussion 191

it would be sheer romanticism to call them minorities] (ECN.4/SR. 368). These


statements emphasized that these groups had to strive towards progress, and that
assimilation was the condition sine qua non of achieving this objective. On the
other hand, the claim for minority status would impede their development. This
double danger, for the state and for groups, was therefore part of the plea in favor
of an article that would not in any way encourage the creation of new minorities.
The speech of the Australian representative allows us to place this position
in the same logic as the Chilean representative’s statements. This speech reveals
a discursive procedure that fundamentally denies the existence of any problems
with regard to minorities:
(. . . ) there were some countries in which there were minority problems and others
in which there where no minority problems. Australia was one of the group of
countries which were new countries and countries of immigration; but there were
no minority problems in Australia, no matter which was the correct meaning of
the word “ minority ”.
There were, of course, the aborigines, but they had no separate competing culture
of their own, for as a group they had only reached the level of food-gatherers.
The effect which the impact of a foreign culture had had on them had been
unfortunate and had created problems of caring for them and fitting them into
the general way of life in Australia. But it had been sensibly recognized that the
only possible solution for those problems lay in assimilation, and efforts were
accordingly being made to assimilate the aborigines.
Current immigration toAustralia had not given rise to anything which could possi-
bly be called a minority problem. The different religious beliefs of the immigrants
were causing no dissension; there was no question of cultural differences; the real
difficulties relating to immigration were linguistics, and they were in the process
of being overcome.
(E/CN.4/SR.369)
As we can see, according to the Australian representative, different groups cer-
tainly did exist but there was no room for them to be considered as minorities.
Aborigines and immigrants are evoked as potential recipients of rights who,
if the propositions by Yugoslavia or the USSR were upheld, would have to be
considered as minorities.
Opposing this view of minorities, however, the Australian representative
chooses a discursive strategy that above all justifies the non-recognition of mi-
nority status by means of either a dilution of differences (“there was no question
of cultural differences”) or by the negation of the actual existence of a culture
(“they had no separate competing culture of their own, for as a group they had
only reached the level of food-gatherers”). Once again, the fear is that rights
would create problems, which according to the speaker, do not currently exist. It
192 Ambivalence, particularism and the reproduction of state interests

should be noted in this regard that he nevertheless acknowledges the existence


of states in which there are minorities and, in fact, problems (his distinction
between states “in which there were minority problems and those in which there
were no minority problems”). This distinction allows the speaker to plead in
favor of an article that would not create problems, even though he admitted the
relevance of such an article, but from the point of view of others.
Indeed, all the voices that were raised against the Yugoslav and Soviet propo-
sitions expressed, to varying degrees (the ones I have examined above are prob-
ably the most extreme), non-insistence on differences and maintenance of the
necessary homogeneity of the state – as indicated by the Indian representative
in the following extract:
In her view, the greatest care should be taken not to over emphasize cultural
differences. The modern trend towards greater uniformity of thought and outlook
was tending to diminish those differences. She shared the Chilean representative’s
view that once a linguistic group felt itself to be a cultural entity it began to insist
upon its rights and became reluctant to play its part in the common national life.

(E/CN.4/SR.369)

Faced with the criticisms and fears expressed here, the representatives of the
Eastern bloc insisted on the assimilation brought about by the capitalist states.
Furthermore, each of them highlighted in turn the benefits of the state system
they were evolving. Yugoslavia’s position was more marginal than the others, as
it did not identify itself with statements by the Soviet republics and sought to
anchor these rights in a strong judicial legitimacy.
The majority of Commission members nonetheless considered that the Yu-
goslav and Soviet propositions were not admissible. TheYugoslav representative
withdrew his proposition before the vote and supported the Sub-Commission’s
proposition, trying in vain to attach to it the principle of non-discrimination.
The speeches that I have discussed here represent the dominant trend of discus-
sion within the Commission. One by one, the representatives took the floor and
indicated the inherent difficulties of the two propositions, all their arguments
focused, to varying degrees, on the fears of separatism and the creation of new
minority groups. They all agreed that, while the Yugoslav and Soviet proposi-
tions were problematic, the Sub-Commission’s proposition responded best to
the needs of minorities, and they acknowledged in passing the excellent work
done by the members of the Sub-Commission. It nonetheless remains the case
that the proposition met with such success precisely because it anticipated the
fears presented above and associated the Article with an annulment of these
fears.
An accepted presence, a formulation under discussion 193

3.3.2. The proposition by the Sub-Commission as an appeasement of fears


While the emergence of discourses of endangerment, as I have shown, is above
all due to the Soviet and Yugoslav propositions, they are based on the notion of
minorities in the context of the nation-state. Therefore, the formulation of an
article that could win the votes of the majority had to take the different national
interests into account.Accordingly, the Sub-Commission’s proposition, although
imperfect, avoided the possible promulgation of rights that could give rise to
separatism and the creation of “new minorities”, while maintaining the founding
principles of the homogenous state.
The reasons that allowed the Sub-Commission’s proposition to appease these
fears were also based on its formulation; the members of the Sub-Commission
were well aware of this. Indeed, as we have seen, the formulation emphasized
individual rights (“persons belonging to . . . minorities”), which were clearly
affirmed in the discourses of most members. It avoided the risks involved in
the specification of rights for particular groups in both the Yugoslav and Soviet
propositions. On the other hand, the Sub-Commission’s Article did not make any
explicit reference to state obligations and was thus seen to be less restrictive.
Furthermore, the expression in the negative (“shall not be denied”) prevented
these rights from being automatic, as a formula such as “shall have the right to”
would have implied. Diplomatic discourse cannot allow itself to explicitly men-
tion the arguments referred to above; however, the extracts that I have presented
allow us to understand the issues involved in the formulation of such an article.
While the conditions provided for in the Article may appear to be limited, the
objective of finding the greatest common denominator in the matter, while also
protecting the sacrosanct sovereignty of the states, had been entirely achieved.
This is demonstrated in the statements by the French representative:
In drafting its text for the Commission, the Sub-Commission on Prevention of
Discrimination and Protection of Minorities had borne all foreseeable cases in
mind. His delegation was accordingly in favour of minimum guarantees which,
being acceptable to all, would mark a tangible improvement on the existing situ-
ation.
(E/CN.4/SR.370)

It nonetheless remains the case that the Sub-Commission’s proposition, even


though it put forward principles applicable to all, did not totally eliminate all
concerns about the emergence of claims by groups not considered by the states
as minorities. The formulation was certainly non-restrictive enough for it to be
acceptable, but the actual enunciation of the general existence of minorities was
a problem for states that denied the existence of any minorities within their
territories.
194 Ambivalence, particularism and the reproduction of state interests

It was therefore necessary to introduce a specific clause that would allow


these states to accept in a positive manner the presence of such an Article in the
Covenant. The solution came from the Chilean representative. As the spokesman
for the states of Latin America, he had strong support from the sub-continent as
well as from numerous others for whom this clause permitted their disengage-
ment to be amplified. The clause in question, “In those States in which . . . ”, was
added to the beginning of the text, resulting in the final version of the text as
follows:
In those States in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community with the
other members of their group, to enjoy their own culture, to profess and practise
their own religion or to use their own language.

The huge support that the proposed article received gave the debates in superior
bodies, namely the Third Commission and the General Assembly, an air of non-
contention. Voted for unanimously, minus one against and three abstentions, this
article can really be considered as non-problematic; all the more so, as it was to
receive a huge majority vote in the General Assembly in December 1966.

3.4. Synthesis of the section

The discussions that took place in the Commission demonstrate the basis of the
reservations of the states with regard to the granting of minority rights. Centered
primarily on the fears aroused by the existence of difference, the reservations
were similar to the discussions that I referred to in the context of the first dis-
cursive event (cf. Chapter 4).
The presence of an Article of this type nonetheless assumed a political im-
portance at the time. In a way, the discussion of a Covenant on human rights
did not allow the question of minorities to be subsumed under the quest for
universality. On the contrary, the Covenant is an instrument explicitly intended
to incorporate particularities.
At the same time, the Covenant expressed an essential right, the self-deter-
mination of populations, which in a way was a new danger connected to the
protection of minorities. While the evolution of ideas in terms of geopolitics
resulted in a softening on the part of colonized states, thus allowing this Article
to exist, it is clear that, as far as minorities were concerned, fear and ambivalence
persisted. Therefore, a well-formulated article included in the Covenant antici-
pated minorities being able to avail themselves of the right to self-determination.
While these elements contributed to the presence of the Article, it was still
the case that its expression had to be as unprovocative, and as non-restrictive
Distance, non-commitment and legitimization 195

for the states, as possible. This certainly led to its acceptance; however, it had to
strategically take into account various fears and not in any way question the unity
and homogeneity of the state. This had been at stake in the debates of the Com-
mission, resulting in the formulation of an above all politically strategic article.

4. Distance, non-commitment and legitimization:


the discussions of the Third Commission
The steps that led to the creation of the Article on minority rights were based,
as I have demonstrated, on a certain ambivalence with regard to minorities.
The Article itself is the result of this and did not seek to impose rules on the
states that were contrary to their ideologies or to provoke problems for the states
through the establishment of rights potentially resulting in claims by minorities.
It may be assumed that the huge approval of the formulation of the Article in the
Commission clearly indicated a plebiscite in the context of superior discursive
spaces. This was, indeed, what happened. I would go so far as to say that the
approval of theArticle was even greater in theThird Commission and the General
Assembly. It is interesting to see how the Article was received, by examining the
discussions that took place in the Third Commission. Given the plebiscite, the
Article was not debated in the Assembly.
While the task of the Commission was fundamentally to develop articles for
the Covenant at the discursive level, the function of the Third Commission was to
study these documents, and either to endorse or to modify them. The discourses
in this space, therefore, primarily concerned the acceptability of the principles
evoked in the rights and were thus, above all, discourses of justification. It was
in 1961 that the Third Commission discussed Article 25, which was to finally
become Article 27.
If we examine the discussions that occurred in the Third Commission, which
led to the Article receiving such a huge majority vote and its inclusion in the
Covenant, it must be acknowledged that the many arguments accompanying
the vote bring to light two discursive strategies that justified the vote for the
presence of the Article as it was voted for in the Commission. These strategies
highlight two forms of non-commitment by the states with regard to the rights
invoked in the Article: (1) the acceptance of its presence through the negation
of the existence of minorities in the state represented by the speaker; (2) the
acceptance of its presence as a justification of national institutions.
An examination of these will allow us to demonstrate how minority rights
were used for political purposes, and the actual lack of commitment of some
states regarding these rights.
196 Ambivalence, particularism and the reproduction of state interests

4.1. Acceptance of presence through negation of existence

Among the strategies of justification, there is one that consists essentially of


accepting theArticle while at the same time insisting on the absence of minorities
in the state represented by the speaker. We can observe a series of speeches in
a similar vein, primarily coming from the countries of South America. These
speeches are interesting in that they present a real similarity in argument. Below
are the reproductions of four speeches, from the summary records of the 1103rd
session of the Third Commission:
1. CHILE 2. VENEZUELA 3. PANAMA 4. ECUADOR
The Chilean del- Article 25 did not Mr. DOMIN- Where half of the
egation would raise difficulty for GUEZ said that he population of a
therefore vote the delegation of would vote for the country consisted
for article 25 Venezuela, be- article before the of Indians whom .......
if the Commit- cause the minority Committee , which Government
. . . . . . . . . . . . . . . .was
...
tee favoured it, problem did not he regarded as a working
. . . . . . . . . . .hard
. . . . . .to
..
but declared that arise there. Nev- supplementary assimilate
. . . . . . . . . . . . .into
. . . . .the
...
there were no ertheless, as the statement of the working
. . . . . . . . . . .life
. . . . .of
..
minorities in Chile Commission on respect due to the the
. . . nation, it was
and that .their ..... Human Rights had human personality. hardly a native
.formation
. . . . . . . . . . . .was
.... emphasized, the The problem dealt minority. Ecuador
.not. . . .desirable,
. . . . . . . . . . . .as
. . . it
. provisions relat- with in that article could rightly and
.would
. . . . . . . prevent
. . . . . . . . . .the
... ing to the rights of did not, strictly objectively claim
.strengthening
. . . . . . . . . . . . . . . .of
.. minorities should speaking, concern that there were no
national
. . . . . . . . . . .unity.
..... not be so applied Panama which minorities on its
(A/C.3/SR.1103) as
. . . .to
. . .encourage
........... was a melting-pot territory.
the
. . . . .emergence
............ of numerous Since, however,
of
. . . .new
. . . . . minority
.......... races which the minority groups
groups,
. . . . . . . . . .or
. . . to
.. Government .was ... existed in other
thwart
. . . . . . . . . . . . .process
the ........ endeavouring
............... regions, his dele-
of
. . . .assimilation
............. to
. . . .integrate
. . . . . . . . . . .as
.. gation could ac-
and
. . . . . .so
. . .threaten
. . . . . . . . . .the
... far
. . . . .as
. . .possible
......... cept article 25 ,
unity
. . . . . . . . . . .the
of . . . .State.
..... into
. . . . . .the
. . . . national
......... subject
. . . . . . . . . .to. . .the
...
(A/C.3/SR.1103) life. Obviously
................. express
. . . . . . . . . .condition
..........
the
. . . . .provisions
. . . . . . . . . . . . .of
.. that
. . . . . .it. .could
. . . . . . . .in.
.article
. . . . . . . .25
. . . should
........ .no . . .way
. . . . . .thwart
. . . . . . . .the
...
.not. . . .be
. . . .invoked
. . . . . . . . . .to. .process
. . . . . . . . .of. . . their
.....
.justify
. . . . . . . .breaches
......... assimilation.
..............
.of. . .the . . . .national
......... (A/C.3/SR.1103)
integrity
. . . . . . . . . . .in . . . any
....
country.
.........
(A/C.3/SR.1103)
Distance, non-commitment and legitimization 197

These four extracts allow us to see four discursive constants. The first (in-
dicated by grey highlighting in the extracts) concerns the acceptance of Article
25, with each delegation expressing its support. The second (indicated by solid
underlining) concerns the absence of minorities (extracts 1 and 4) or the ab-
sence of minority problems (extracts 2 and 3) in the territory represented by
the speaker. All are formulated in the negative (“there were no”, “did not arise”,
“did not . . . concern”), thus giving these statements an irrefutable authority (see
extract 4 in this regard for a demonstration of absence through “objectivity”).
On closer examination, one can observe that different uses are made of the
affirmation of non-existence. In extract (1), the Chilean representative clearly
embarks upon the path of disengagement through the connector “however”, and
then justifies his acceptance by a willingness to follow the majority (“if the
Commission approves”). In extract (2), the representative of Venezuela justifies
his acceptance of the vote (using the connector “as/because”, connecting the
non-difficulty of the Article to the non-problem of minorities in a causal relation)
through the absence of minority problems in his state, thus implying that the
Article does not in any way concern his state. The representative of Panama
justifies his acceptance by advancing human rights. In what follows, however,
he explicitly states that theArticle is not in any way relevant to his particular state;
furthermore, he exemplifies the reasons for this lack of relevance by referring
to his state’s procedures in response to its racial diversity. The representative of
Ecuador includes the mention of minorities in his state before the affirmation
of acceptance. This is, however, based on previous statements insofar as he
considers these rights to be relevant to states in which minorities exist. His
argument therefore allows him to escape the obligations of these rights.
These discursive steps thus tend to demonstrate the dissociation of these
delegations from the rights expressed in theArticle and introduce a third constant
(dotted underlining) regarding the conditions of the Article’s acceptance.
Above all here, we see the reservations regarding the Article. They are, of
course, based on the affirmation of the absence of minorities; however, they
seem to me to be even more fundamental. Indeed, they involve the conception
of the role of the state, desirable measures for groups that differ from the major-
ity of the population, and the potential risks of the Article. In a way, they reveal
a paradox. If no minorities exist, why express reservations? In fact, what is hap-
pening here – and the affirmation of absence is part of it – is the clarification of
the term “minority” (see, for example, extract (4) and the argument justifying
the absence of minorities) and the prevention of the creation of new minorities
(cf. above, the fears with regard to the protection of minorities). It therefore be-
comes absolutely necessary for the speakers to reiterate the guiding principles
of their state procedures: assimilation and the protection of national unity. The
198 Ambivalence, particularism and the reproduction of state interests

Chilean representative stresses the undesirability of the formation of minorities.


While he does not explicitly refer to the principle of assimilation in this ex-
tract, the discussions that occurred in the Commission clearly demonstrate his
position in this regard. The representative of Venezuela explicitly mentions the
two reservations: the risks of “encouraging new minorities” and of preventing
“assimilation”. For the representative of Ecuador, these reservations involve the
refusal to allow these rights to be used in order to impede the process of assimi-
lation. While he does not explicitly refer to the groups in his state, he implicitly
reveals the direction that all the states should follow, taking up the term “assim-
ilation”, which was used in the preceding paragraph and was intended to justify
the affirmation of the absence of minorities.
In extract (3), the state’s response to diversity – the process of integration –
is evoked. The reservations are expressed after this, and concern the necessity
of protecting “national integrity”. These terms are also used in the other extracts
(extract (1): “national unity”; extract (2): “national unity”), and all are used for
the purposes of argument.
These extracts and the strategies that characterize them reflect the assimila-
tionist approach that was evident in the discussions on the Universal Declaration.
While they emanated, in the context of Third Commission, mainly from the Latin
American states,33 many others shared this approach. It was justified by the prac-
tices of the states and went beyond the particularities of each state. The United
States, which did not participate in the debates of the Commission, accepted the
Article, without much conviction, and did not present any further arguments of
assimilation. The vociferous arguments of the representatives of Latin America,
however, sufficed – all the more so because, on more than one occasion, they
spoke of the “American continent” as exemplifying “good” state practices, and
explicitly referred to the United States as exemplary in assimilating populations
with different characteristics.
Through the negation of minorities, these strategies allowed delegations to
distance themselves from the implications of the instrument, while also protect-
ing themselves from the potential abuse of these rights. This came about because
of the inclusion in the Article of the clause “In those States where minorities
exist”.
These discursive strategies allow us to emphasize that the existence of minor-
ity rights was only fundamentally possible through the negation of the existence
of minorities. The subtle play on the interpretation of the term “minority” was
thus possible, given its non-definition and given the shift of universal necessity
towards the particular. The latter, in this sense, permitted non-commitment to
an article on minorities, while at the same time permitting its existence.
Distance, non-commitment and legitimization 199

4.2. Acceptance of the presence as legitimization of national institutions

The strategies presented above all set out from one basic premise, the absence of
minorities, and thus tend to seek ways of justifying the absence by exploiting the
interpretative ambiguity of the term “minority”. They led to non-commitment
and negation of the problems encountered by minority groups.
While the strategies also highlight the endorsement of the Article, they justify
this by equating the rights invoked with the procedures of the states. While there
is no room here to consider the existence, in the first instance, of disengagement,
it is possible to consider that the strategies led towards a justification of the
status quo and consequently towards a new kind of negation of the existence of
problems.
Let us first of all examine a series of discourses that convey this strategy of
justification:
5. INDIA 6. IRAQ 7. PAKISTAN 8. INDONESIA
In addition to the Mrs. AFNAN Begum Aziz Mr. HENDR-
political rights that (Iraq) expressed AHMED (Pak- ANINGRAT
members of mino- her delegation’s istan) said that (Indonesia) said
rity groups enjoyed full agreement her delegation that he could
as citizens, the with the principles considered ar- support article 25,
Indian Constitution set forth in article ticle 25 to be as it was in com-
also guaranteed to 25, which she the most impor- plete accord with
them the special would support. tant in the whole the legal and moral
rights set forth in In Iraq, reli- Covenant. (. . . ) principle practised
article 25, and his gious minorities There were several in his country.
delegation could had always enjoyed religious minori- Indonesia con-
accept that text. the right to practise ties in Pakistan sisted of some
(A/C.3/SR. 1103) their own religions; whose sentiments 3,000 islands and
members of lin- had always been their cultures,
guistic and respected and taken together,
ethnic minorities, protected by law. were regarded as
likewise, were In Pakistan, free- Indonesian culture.
free to preserve dom of religion, Therefore he
their own culture language and supported article
and use their own culture was not 25 in the spirit
language. only advocated of the Indonesian
(A/C.3/SR. 1104) but practised with motto “Bhineka
pride. Tunggal Ika”, that
(A/C.3/SR. 1104) was, “Unity in
diversity”.
(A/C.3/SR. 1104)
200 Ambivalence, particularism and the reproduction of state interests

These extracts are also similar. First of all, each bases the endorsement of
the Article on an affirmation of the already effective existence of this type of
rights within their respective states: “the Indian Constitution also guaranteed”;
“in complete accord with the legal and moral principle practiced in his country”.
Extract (6), moreover, introduces a temporal dimension to the existence of these
rights (“always”), thus stressing that these injunctions do exist.
Some even go so far as to emphasize the essential nature of these rights
(in extract (7): “the most important in the whole Covenant”, and in extract 8:
“Indonesian motto”), while rejecting the commendation of diversity (“Unity in
diversity” in extract (8), and “practiced with pride” in extract (7)), indicating
that the application of these rights constitute a resolution of these problems.
Here, the justification of acceptance by means of compatibility with national
legislation tends to imply the non-existence of problems in that territory. Here
again, we have another form of negation through acceptance.
Following these discursive strategies, I would now like to focus on a series
of contentions emanating from the African states. While similar to those of the
extracts presented above, they bring to light another issue in the discussions on
minorities, which had not previously appeared in the context of the Commis-
sion – questions relating to decolonization:

9. LIBERIA 10. UPPER VOLTA 11. GHANA


Mr. THOMAS (Liberia) Mr. TOURE (Upper Mr. MATE (Ghana) said
said that article 25 set Volta) endorsed this that article 25 was ac-
forth clearly and satisfac- article as it stood since ceptable to his delega-
torily certain principles it was fully in keeping tion as it stood. While
fully respected in Liberia, with his country’s consti- he was opposed to colo-
where the protection of tutional provisions. The nialism in all its forms,
minorities was no longer question of minorities did he felt it his duty to note
a problem. At one time not arise in the Upper that the British colonizers
there had been a demar- Volta: the few civil of his country had never
cation line between the servants and traders of sought to suppress the
indigenous population foreign origin enjoyed the religions, languages or
and the descendants of same rights as citizens. cultures of the people:
immigrants ; but because (. . . ) He wished they had, in fact, often
of a unification pro- to note that worked to promote the
gramme carried on by the France, the country in indigenous culture. The
present Government that which the idea of the independent State of
line had now disappeared. rights of man had origi- Ghana had continued to
(A/C.3/SR. 1103) nated, had at all times respect the right of all to
respected the religions, enjoy their own culture,
languages and cultures of to practise their own
Distance, non-commitment and legitimization 201

the people of the Upper religion and to use their


Volta, a policy for which own language.
he wished to pay it a (A/C.3/SR. 1104)
very warm tribute.
(A/C.3/SR. 1104)

These three extracts reveal the new face of the United Nations, given the arrival
of new Member-States following decolonization. In 1961, the decolonization
movement was well under way in Africa. The relations of these states with
their former colonizers and with the United Nations proved to be somewhat
ambiguous. The decolonization movement had been strongly supported by the
UN and the dominant model of the nation-state (democratic or not) was, through
the intermediary of the UN,34 “transported” to the newly independent states.
The African states, moreover, maintained economic relations with their for-
mer colonizers, which placed them in an ambivalent position. They had to de-
nounce colonization while maintaining necessary relations with the dominant
powers.
In extracts (10) and (11), speeches presented by the representatives of two
newly independent states (Upper Volta – 1960 and Ghana – 1957), we see two
kinds of justification for endorsing the Article: (1) through the existence of leg-
islation in this regard, and (2) through the practice of colonialists with regard to
the protection of minorities. Extract (10) goes so far as to pay “a very warm trib-
ute”, while extract (11) highlights the colonialists’encouragement of indigenous
characteristics and demonstrates ideological continuity in the establishment of
these rights in the independent state of Ghana. One may well see a certain irony
here – the validation of native characteristics had sometimes been used in order
to limit access to the cultural and symbolic sources of power, while at the same
time imposing a kind of assimilation on the part of the given population – but
this is not the issue. I consider that what is in question here, is an attempt to
reconcile the profound ambivalence between the denunciation of colonialism
and the maintenance of necessary relations.35
It is particularly interesting to observe the pledges of sincerity given by the
representatives of Liberia and Upper-Volta. In order to base the justification of
conforming to the rights invoked by Article 25 on their national legislation, the
speakers brought up the rights granted to the “descendants of immigrants” or
the “few civil servants and traders of foreign origin” in relation to “indigenous
population” and “citizens”. This discursive process tends to exclude minorities
of citizens, while assuring foreign countries of their good faith.
Strategies for justifying the endorsement of the Article, by equating it with
national legislation, construct the protection of minorities as a form of evidence,
but pass over in silence the actual problems of minorities in their territories.
202 Ambivalence, particularism and the reproduction of state interests

Furthermore, they are part of the lauding of existing state practices, setting up
a kind of laudatory “nationography”. In summary, minority rights are used here
by these states in order to maintain good relations with the powerful countries
that had colonized these states.

4.3. Synthesis of the section

Both of these strategies may well lead us to believe that problems do not exist,
and that we live in the best possible world. Moreover, if there are any problems,
they certainly are not to be found in the territory of the speaker.
The discourses mentioned above came mainly from the countries of Latin
America, Africa and Asia. Their representatives expressed themselves strongly
on this point, with the Western states and other great powers only rarely interven-
ing. Previous ideological dissensions did not appear. The Soviet representative
approved of the Article but intimated that it could have been more consistent.
While he referred to the colonized countries, in which the native populations
were in the position of minorities, his discourse was not founded on a political
division, as was previously the case. In 1961, ideological dissensions were fo-
cused on more important issues than minorities, like the Vietnam War and the
Bay of Pigs.
Furthermore, while the USSR maintained its policy of nationalities, it carried
out a stringent policy of Russianization in a number of its republics, which
deserved to be called assimilation. We can therefore assume that the issue of
minorities was no longer as essential, according to state criteria, as it had been
in 1953.
The French representative did not take the floor, and the United States rep-
resentative joined the majority without entering into the Third Commission
debate – thereby indicating a lack of interest. The issue of minorities and of this
Article in particular did not in any way constitute a danger to these states, which
were, on the contrary, reinforced in their assimilationist policies.
Only one voice resisted the flood of complacency regarding Article 25 –
the voice of the Yugoslav delegation. The Yugoslav representative reiterated
the necessity of adding to this article a formulation of equal rights in order
to protect minorities from discriminatory measures. In this regard, he stressed
the importance of allowing minorities to learn and practice the majority lan-
guage as complementary to the minority language. After initially proposing an
amendment, he then withdrew it and allied himself with the dominant position.
The journey of Article 2736 came to an end on 16 December 1966, when
the General Assembly unanimously adopted the formulation of the Article as
drafted in 1950 with a modification by the Sub-Commission in 1953.
Conclusion 203

5. Conclusion
The history of this Article, envisaged here as a discursive event, consists of a long
journey that began in 1949 and ended in 1966. Throughout this chapter, I have
shown its trajectory which, in the course of the years and the spaces in which it
was debated, assumed various implications. The space of expertise, seeking to
achieve consensus and to protect the sensibilities of superior bodies, carefully
set about strategically elaborating the formulation of the Article. Taking into
account the progress of consensus that the expert space achieved through the
multi-modal procedures concerning the premises of the Article-to-be, as well as
the previous debates about the Declaration, the Sub-Commission formulated an
article that amazingly reproduced the dominant state interests within political
spaces. While the Sub-Commission became the intermediary for minorities,
it also developed a knowledge – necessary for the justification of the Sub-
Commission’s presence in the institution – that permitted the reproduction of
nationalist ideologies.
The Article was then put together with two other propositions, thereby di-
recting discussion in the political space towards a quest for the best formulation
possible. I have demonstrated that this entry into discussion was made possi-
ble by various factors, but that the discursive arguments regarding its selection
tended towards centralization of the state. Each of them therefore attempted
to formulate an article that would not in any way interfere with any particular
ideology. The strategic proposition of the Sub-Commission proved to be the
one that appeased fears and permitted the construction of minorities as being
fundamentally dangerous for the state.
Finally, as the years passed, consensus in the spaces of decision was trans-
formed into a plebiscite, associated with various discursive strategies all aimed
at balancing the implications of the Article, and disengaging from it. What is
striking about the discursive construction of minorities is that it never succeeds
in detaching itself from the nationalist viewpoint and, in this sense, is testament
to the impossibility of imagining any expansion of the concept. The decision to
separate “minority” from “native population” clearly reinforces an apprehension
of minorities above all in their national dimensions.
On paper, the result of these discussions was a compromise that, in the end,
satisfied the majority because of its amenability. The Article, indeed, does not
endanger the state in any way; it provides – in the negative – for rights, but
does not oblige the state to establish measures with regard to the exercise of
particular rights. Furthermore, the Article introduced a condition in relation
to proposition of the Sub-Commission: it only concerned those states that had
minorities in their territories. This left the door open to different interpretations.
204 Ambivalence, particularism and the reproduction of state interests

Therefore, it may be said that the Article was received so well precisely because
it constituted no fundamental risk for states and even made up, if necessary, for
the interpretative gaps of the Article on self-determination.
On the judicial level, the Article may be interpreted as constituting legal
progress in the recognition of minorities (cf. Bokotola 1992; Varennes 1996).
It must be admitted, however, that its genesis, and the state positions associated
with it, reinforce the notion of the omnipotence of states and the undeniable
absence of minority voices. These positions, moreover, discursively construct
minorities as a danger. They also reveal the complexity of the UN mechanisms
based on human rights, and the systematic reproduction of political ideologies.
While the renunciation of universality with regard to minorities was clearly
consolidated by means of this Article and the Covenant, the claim of particular-
ism opened the way to disengagement on the part of states and the restriction of
rights.
Chapter 6
Institutional continuity, the management
of paradoxes and state consensus:
a controlled protection

1. Introduction

Article 27 of the International Covenant on Civil and Political Rights constitutes


a recognition of minority rights at the international level. While the content of
the Article remained limited and resulted in a compromise that reflected state
interests, the document can nonetheless be considered as determinative. In fact,
by means of this legal recognition, the Article provides for the creation of new
measures with regard to the protection of minorities. It also determines all such
measures, preventing any going back on the constraints it had set out. The
content of this Article was thus set in stone, and at the same time, crystallized
the conceptual context in which the legal and conceptual acknowledgement of
minorities would continue.
It is from the perspective of this institutional continuity that the third dis-
cursive event must be approached: the elaboration of a document specifically
devoted to the rights of persons belonging to minorities: the Declaration on the
Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities.37 This event provisionally closes the history of UN mechanisms of
minority protection. It also heralds a new era in the protection of minorities
within the United Nations: the era of the construction of mechanisms specifi-
cally pertaining to clearly identified and determined subjects of human rights.
This period began in the fifties and proved to be most effective in the late six-
ties with the establishment of the three main mechanisms of human rights: the
Universal Declaration and the two Covenants. This closed a vital chapter in the
development of central mechanisms set up by the United Nations, specifically
dealing with the particularities of the recipients of such rights.
The idea of a Declaration on minority rights gradually emerged from the
logic of a specialization of rights. It was to be a long process, spanning the years
from 1969 to 1992, and traversing some key historical periods, like the end of the
Cold War, the end of decolonization and the emergence of conflicts involving
ethnic minority and majority factions. In addition, the end of this process of
elaboration coincided with the emergence of a new world order in which global
geo-political strategies appeared as a new issue in diplomatic relations.
206 Institutional continuity, the management of paradoxes and state consensus

The examination of this discursive event is important for the following rea-
sons:
1. As the first and only international UN mechanism dealing exclusively with
minority rights, it constitutes a new way of approaching and constructing
minorities, while also being part of the continuity of existing mechanisms.
This document, the origin of its creation and its formulation therefore allow us
to pursue the investigation of political and institutional ideologies regarding
the place of minorities in the UN system.
2. The Declaration on minority rights is considered by many commentators as
a significant step in the resolution of conflicts involving minorities. In fact, it
constitutes a hope for many minorities, and its presence tends to give a strong
signal of the United Nations’ recognition of their existence. Furthermore,
its existence opens new possibilities for investigation and consultation for
expert bodies. Finally, it is this document that still determines the general
context of the development of studies and strategies concerning minorities.
It is therefore the guiding international document and reference in the subject
of minority protection.
This event is thus the subject of this entire chapter. First of all, I intend to elucidate
the emergence of the idea, through two institutional conditions of possibility: the
first was the UN’s specialization and proliferation of international mechanisms;
the second was Article 27 and the actions undertaken, principally by the Sub-
Commission, in order to clarify its legal standing. These conditions will allow us
to highlight the way in which the Declaration emerged in relation to institutional
functioning and existing instruments.
In the second section, I shall focus on the different stages of the document’s
discursive elaboration, demonstrating the conditions that allowed and presided
over the writing of this instrument. Two preliminary steps will be highlighted:
the existence of a document, proposed by a delegation, on the basis of which the
Declaration as a whole would then be constructed; and, secondly, the search for
a definition, which will allow us to emphasize the perennial nature of conceptual
and ideological dissent. Then, through further examination of the drafting of the
document, I shall bring to light the existence of various paradoxes inherent in
this process, which were, once again, based on the problematic and ambivalent
relations between states and their minorities. I intend to demonstrate, through
the analysis of the final debates in the Commission on Human Rights, how
perspectives on some issues remained unchanged in the course of time and how
new geo-political world issues led to a different legitimization and acceptance
of the document.
In the third section, I shall sketch a general outline of the document and then
focus more specifically on the way that language is discursively brought into
The emergence of the Declaration on Rights of Persons Belonging to Minorities 207

play in the Declaration. The articulation between the ideology on minorities and
language ideologies will thus be demonstrated.
Finally, I intend to briefly focus on the institutional consequences of the
Declaration by showing how a new space was created, and the way in which
it would work towards the rights promulgated in the document. We shall also
look at the actual attempts to pursue the legal recognition of these rights, which
constructed the premises for such a discursive event.
This chapter seeks to demonstrate that the event was essentially determined
by previous events; that the specialization of rights was associated with a new
necessity for the states to resolve paradoxes; and that the reproduction of state
interests was incorporated in a reproduction of institutional interests, which ulti-
mately conferred existence and rights to minorities without, however, managing
to eliminate fears that they aroused.

2. The emergence of the Declaration on Rights of Persons


Belonging to Minorities
The emergence of this Declaration can be considered in terms of two parallel
processes: the functioning of the institution and the ideological continuity of
work on measures of minority protection.
The first element is linked to the proliferation of specialized mechanisms
relating to human rights, associated with the Universal Declaration and/or the
Covenant on Civil and Political Rights. The second more specifically concerns
the emergence, within the space of expertise, of the idea of the Declaration
proper as the direct result of the specification of Article 27 of the Covenant on
Civil and Political Rights.

2.1. The proliferation of rights and international mechanisms within


the United Nations

For about two decades, the United Nations had devoted its efforts to the con-
struction of the International Charter of Human Rights, including the Universal
Declaration of Human Rights and the two Covenants. In the course of these
twenty years, certain elements of human rights were subject to treatment in par-
allel with the development of the Covenant, explicitly based on the Universal
Declaration. These were the international mechanisms that dealt with subjects
considered as priorities, necessitating a specification of rights that could not be
provided by the Universal Declaration.
208 Institutional continuity, the management of paradoxes and state consensus

Table 1.
Title of the Declaration Date of ratification
Declaration on the Rights of the Child 20.11.1959
Declaration on the Elimination of All Forms 20.11.1963
of Racial Discrimination
Declaration on the Elimination of All Forms 07.11.1967
of Discrimination against Women

These three instruments were conceived during the period in the history of the
United Nations when the Covenant was being drafted. The first two came into
effect before the Covenant, while the last came into effect the year after the
Covenant was accepted. These three mechanisms are essentially founded on the
Universal Declaration of Human Rights. Indeed, Article 10 of the Declaration
provides for universal children’s rights, and both the Declaration and the United
Nations Charter include the rejection of all forms of discrimination based on race
or gender. The existence of these instruments was thus determined by explicit
premises in the context of the Declaration. They also testify to another element of
the UN system, which favors the legal and symbolic frame as a means of action.
These international mechanisms were consequently, during a second phase,
to become the subject of a “Convention”, i.e. a document that has the capacity of
compulsion, associated with an institutional controlling space. They are part of
the process begun by the Covenant: the creation of a relevant controlling body,
the Human Rights Committee. In 1969, the Convention on the Elimination of
Racial Discrimination was ratified and, immediately following this, the Commit-
tee for the Elimination of All Forms of Racial Discrimination was established. In
1981, the Convention on the Elimination of All Forms of Discrimination against
Women came into effect, as well as a relevant Committee. Finally, in 1990, the
Convention on the Rights of the Child was established, along with its controlling
body, the Committee on the Rights of the Child. These three Committees remain
the only ones concerned with documents that are not intrinsically bound to the
International Charter of Human Rights.
This brief outline of the establishment of specific mechanisms, demonstrates
institutional procedure with regard to rights. Furthermore, they initiated a series
of other Declarations in the course of time, intended to identify specific rights.
The connections of the instruments with one another are obvious. The ex-
istence of the Universal Declaration gave rise to the creation of Declarations
based on some of its dispositions.The presence of the Covenant and its associated
mechanisms gave rise to Conventions and controlling bodies, of a similar kind to
the Committee of Human Rights. The existence of these mechanisms, therefore,
The emergence of the Declaration on Rights of Persons Belonging to Minorities 209

was only possible through the previous, formal existence of rights. In fact, the
institution can only establish international legislative systems by taking already
established principles into account. This leads us to the conditions of possibility
for the existence of a Declaration of minority rights, at an institutional level:

1. A Declaration on minorities was institutionally impossible without their hav-


ing been explicitly mentioned in previous documents. As the United Nations
did not deem it opportune to include minority rights in the Universal Decla-
ration, a declaration of minority rights could only be made subsequent to the
Covenant on Civil and Political Rights.
2. Logically, then, the Covenant constitutes the basic framework for all instru-
ments concerning minorities. It thereby delineated the conceptual contours
of successive instruments.

The presence of Article 27 in the context of the Covenant therefore resulted in


the real possibility of pursuing the legal investigation of minority protection, in
the praxeological logic of the institution: an action by means of international
law.

2.2. The emergence of the Declaration on minority rights within


the Sub-Commission

The idea of an international instrument exclusively devoted to minority rights ap-


peared relatively early in the discussions of the Sub-Commission.As I mentioned
in the preceding chapter, some members had expressed the wish, as early as 1949,
to propose a Convention on minority rights, leading to the writing of a first draft
by two representatives. At that time, however, given the aspects presented above
and the strained relations between the expert and political spaces, the majority
of the Sub-Commission’s members favored a milder solution with regard to the
judicial inclusion of minority rights. The approach to the Covenant was then
practically envisaged, giving rise to the Article that I have examined above.
While Article 27 led to new institutional possibilities at the judicial level (see
above), it also gave a new legitimacy to the Sub-Commission in its investigations.
From 1953 to 1966, the Sub-Commission was to retain a point concerning the
protection of minorities in its agenda; however, in the expectation of the final
decision with regard to the Covenant, this part of its mandate was dealt with in a
limited manner. During this period, the Sub-Commission focused on the question
of the prevention of discrimination, stipulated in the Universal Declaration, and
the elaboration of a relevant instrument, the Declaration on the Elimination of
All Forms of Racial Discrimination, which it re-examined on several occasions.
210 Institutional continuity, the management of paradoxes and state consensus

It was not until 1967 that actual discussions on the protection of minorities were
resumed, endorsed by the legitimization conferred by Article 27.

2.2.1. The Capotorti report and the premises of the Declaration


on minority rights
One of the first “discursive” actions resulting from these changes can be observed
in the elaboration of a resolution by the Sub-Commission (Resolution 9 (XX)
of 1967), requesting permission from the Commission “d’entreprendre aussitôt
que possible une étude sur l’application des principes énoncés à l’article 27”
(‘to undertake as soon as possible a study of the application of the principles set
out in Article 27’). The resolution, furthermore, attached particular importance
to the analysis of the notion of minority and the rights to be granted to minority
communities. Subsequent to the approval of this resolution by the Commission
and then by the Social and Economic Council in 1969, the members of the
Sub-Commission nominated a special reporter, Mr. Capotorti, to undertake this
study in 1971 (Resolution 6 (XXIV)). Capotorti worked on the question for six
years, giving his report in 1977. Consisting of six large sections, this extensive
work sought to give a detailed and precise vision of minorities. The result was
an impressive document that was to be an essential tool in the development of
a regulatory UN system regarding the protection of minorities.
The themes developed in the report proposed a conceptual and political pro-
cess. This was intended to connect the judicial framework of minority rights to
a functional definition of minorities, and to propositions of practical measures
to be taken regarding their protection. Capotorti’s work, moreover, proposed a
historical synthesis of the legal means of protecting minorities along a longitu-
dinal (historical) and transversal (through the examination of existing national
instruments) axis.
In order to convey some idea of the extensiveness of Capotorti’s work, I shall
briefly outline the plan of the six sections:
Introduction
I The concept of a Minority
II The international protection of persons belonging to ethnic, religious and
linguistic minorities since 1919
III The position of persons belonging to ethnic, religious and linguistic minorities
in the society in which they live
IV Application of the principles set forth in article 27 of the International Cove-
nant on Civil and Political Rights
V Conclusions and recommendations
The emergence of the Declaration on Rights of Persons Belonging to Minorities 211

In the preface to the document, Capotorti presents his work in a way that, I
believe, warrants particular attention. Indeed, the preface sets out the positions
of the institution, the author and the objectives of his research:
Preface
For quite a long time (at least 20 years) after the end of the Second World War, it
was thought – and stated in writing – that the question of international protection
of minorities was no longer topical. The system of protection built up under the
League of Nations, had collapsed with the demise of that organization, and the
Universal Declaration of Human Rights adopted in 1948 by the General Assem-
bly of the United Nations did not mention the question of treatment of persons
belonging to ethnic, religious or linguistic minorities. Moreover, the emphases
placed on the international legal order and the imperative need to ensure respect
for basis human rights secured to imply that it was no longer necessary to pro-
tect in any special way the interests of minority groups or, more specifically, of
individuals belonging to such groups.
During the last few years, however, that view has proved to be mistaken. The
insertion in the International Covenant on Civil and Political Rights of an article
specifically concerning the situation of persons belonging to ethnic, religious or
linguistic minorities was the most obvious (although not the only) indication of a
reversal of that tendency. It was realized that there would be a serious gap in the
list of internationally guaranteed human rights if the rights of persons belonging
to such minorities were not included. It was recognized that the experience of
the League of Nations in the area of protection of minorities was one of that
institution’s most important legacies. The question now being asked is what means
can be taken to put into practice the principles set out in article 27 of the Covenant
and to what extent is it desirable and possible to develop them.
This is the justification for the present study (. . . )
(E/CN.4/Sub.2/384, p. 2)

The “reversal of tendency”, referred to by Capotorti, demonstrates that the


United Nations had understood the necessity of including recognition of mi-
norities in its instruments. The change in attitude can be explained by the actual
failure of the dominant conception during the discussions of the Universal Dec-
laration, which tended to assume that minorities were protected by the general
principles expressed in various articles of this document. Capotorti was right
in referring to this argument, which I mentioned in Chapter 4. He seems, how-
ever, to have omitted the issues concerning assimilationist ideologies and the
debates on the state elicited by the question of minorities in the contexts of the
Declaration and of the Covenant.
These omissions and the consideration of Article 27 as a “sign of change”
led to a procedure, on the part of the author, based on institutional continuity.
212 Institutional continuity, the management of paradoxes and state consensus

They also give rise to the construction of a discourse justifying the pursuit of
action, through rights and the reaffirmation of the contents of Article 27.
In fact, in the third chapter, this report gives Article 27 a legal framework of
interpretation. And, sure of the “reversal of tendency” mentioned above, Capo-
torti situates his work in the process of change that had already begun. The idea
of creating a declaration specifically devoted to the rights of persons belonging
to minorities was thus officially mentioned for the first time in Capotorti’s report:
10. Further measure to be taken at the international level
(a) Possibility of a United Nations declaration on the rights of members of
minority groups
59. The study clearly shows that the principles set forth in article 27 of the Interna-
tional Covenant on Civil and Political Rights are not applied in all countries.
One of the reasons for this is the fact that, particularly as regard to ethnic
and linguistic minorities, the implications of the right of such minorities to
preserve their own culture and use their own language are not clearly defined.
With a view to helping States to carry out the task incumbent upon them, it
would be useful to draw up certain principles to which Governments of all
States could turn for guidance. In the opinion of the Special Rapporteur, the
function of such principles should be to contribute to the fulfilment of the
objectives set forth in article 27 of the Covenant by indicating the means
by which they can be achieved. The Special Rapporteur does not see any
need to replace article 27 by a broader or differently conceived rule (which
in any case would give rise to serious problems at the present stage, since
although The Covenant on Civil and Political Rights has entered into force,
many States have not ratified it). The essential requirement is to throw light
on the various implications of article 27 and to specify the measures needed
for the observance of the rights recognized by the article. Accordingly, on the
bases of the conclusions of this study, the Sub-Commission might consider
recommending to its superior organs the preparation of a draft declaration
on the rights of members of minority groups, within the framework of the
principles set forth in article 27.
(E/CN.4/Sub.2/384/Add.5)
This part of the report is especially important. Indeed, the idea of creating a
completely separate declaration is put forward, as we can see, as a necessity in
order to specify the measures provided for inArticle 27.This passage emphasizes
the logical continuity and affiliation between Capotorti’s proposition and Ar-
ticle 27. Capotorti, therefore, is not breaking away from institutional logic,
according to which international mechanisms are not constructed in opposition
to one another but rather in a sequential relation. Furthermore, the conclusions
that he reaches do not in any way put Article 27 into question. Rather, they
propose “to specify the measures needed for the observance of the rights”,
The emergence of the Declaration on Rights of Persons Belonging to Minorities 213

considering that a disconnection from the Article in the Covenant “would give
rise to serious problems”. Capotorti’s report therefore clearly and precisely paves
the way for the first real attempts to construct an international instrument on
minorities.
In order to give a certain legitimacy to his report and recommendations,
Capotorti includes a definition of minorities, intended to clarify the tenor of
Article 27, in association with the proposition of the Declaration:
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 eth-
nic, 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.

If we compare this definition to the one proposed in 1950, we see that it contains
as series of unchanged elements: the linguistic – ethnic – religious triptych, the
non-dominant position of minorities, the criterion of “being nationals of the
State” and the numerical criterion (now explicit). The significant difference in
his definition is the desire of minorities to preserve their characteristics, which
is no longer such a constraining, determining and explicit dimension as ones we
saw at work previously. While Capotorti does indicate that this dimension had to
be included, this desire could be implicit – “if only implicitly”. This is, moreover,
the most crucial point of his definition and is extensively argued in his report.
This desire could not be manifested explicitly because of the assimilationist
processes in force in some states.
Capotorti’s report can therefore be viewed as essential in the effective pursuit
of evaluative procedures concerning the measures to be taken in order to protect
minorities:
1. The report proposes a working definition, extensively argued and directly
connected to his research.
2. It is the first report to officially recommend the creation of a Declaration on
minority rights.
It is in relation to these two aspects that I shall consider the positions adopted by
the members of the Sub-Commission during their examination of the expert’s
report.

2.2.2. The reception of the report: acceptance of the recommendations,


rejection of the definition
An examination of the summary records reveals that the report was generally
well received. The members of the Sub-Commission commended its precision
214 Institutional continuity, the management of paradoxes and state consensus

and the extensiveness of research, which had led to the existence of a document
unanimously considered as excellent.
In fact, this report appeared fortuitously, in that the knowledge gained from
the investigations recorded in this document was, for the Sub-Commission (of-
ten criticized for its lack of rigor in its research on minorities) a master card in
the continuation of its work. Often described as impressionistic, the studies of
the Sub-Commission were thus systematically examined by the Commission:
various attempts at a definition had been rejected because they were not suffi-
ciently rigorous, scientific and factual. The Capotorti report, however, met the
demand for clarity in terms of rigor and objectivity, both of these being con-
sidered as essential conditions for the pursuit of investigations concerning the
protection of minorities.
Furthermore, the report did not in any way question the institutional logic at
that time; in fact, it clearly reaffirmed some key principles. Capotorti explicitly
mentioned, in his chapter on the notion of minority, as well as on the conditions
of the judicial interpretation of Article 27, that minorities had to remain loyal
to the state in which they lived, and stressed the absolute necessity of not doing
anything, at the judicial level, that would incite separatism or the rebellion of
minorities against the majority. This was reassuring for those members who
were still anchored in a conception of minorities as potentially dangerous for
the state, and who systematically found themselves in a paradoxical situation:
the proposition of measures of protection for minorities to political agencies
that were themselves based on a view of minorities as a disruptive element.
Finally, the report did not question the fact that the assimilation of minorities
was essential with a view to their better integration within the state.
While the proposed definition was deemed imperfect by some of the experts –
especially in terms of the principle of the rights being automatic (introduced by
the phrase “even implicitly”), which was regarded as a fundamental limitation
on any UN procedure relating to minority protection – they nonetheless asserted
that the definition was the best one proposed so far, and that it was based on
facts rather than intuition. Any remaining concerns were placated by the explicit
positions adopted with regard to the principles of loyalty mentioned above.
In all the discussions, the report’s recommendations appear to be regarded
by the experts as essential, especially the recommendation of a declaration on
minority rights. The members of the Sub-Commission, in fact, welcomed this
proposition as necessary to the clarification of the Covenant, while also ensur-
ing minority rights that would guarantee peace and stability. In the form of a
resolution (below), the experts therefore proposed the development of a new
mechanism to the Commission.
The elaboration of the Declaration 215

The Sub-commission on Prevention of Discrimination and Protection of Minori-


ties
Having considered the report of Mr. Francesco Capotorti, the Special Rapporteur
on the rights of persons belonging to ethnic, religious and linguistic minorities
(E/CN.4/Sub.2/384 and Add.1–7 and Add.2/Corr.1)
1. Expresses its appreciation to the Special Rapporteur for his excellent and
exhaustive study, which constitutes an extremely valuable contribution to the
clarification of the basic legal problems relating to minorities;
2. Endorses the conclusions and recommendations of the Special Rapporteur and
requests him to present them to the Commission on Human Rights at its next
session;
3. Recommends to the Commission on Human Rights to consider drafting a
declaration on the rights of members of minorities, within the framework of
the principles set forth in article 27 of the International Covenant on Civil and
Political Rights;
4. Requests the Commission on Human Rights to recommend to the Economic
and Social Council that the report be printed and disseminated on the widest
scale.
(Resolution 5 [XXX] in E/CN.4/Sub.2/399)
This resolution reveals the various possibilities of the proposition. We can iden-
tify two discursive anchorages: the first is the report itself, considered as an
“excellent and exhaustive study”; the second is the affirmation of the principles
of Article 27. These anchorages incorporate the proposition in an institutional,
ideological affiliation, as well as legitimizing it through the degree of seriousness
of the Francesco Capotorti study.
The institutional movement that sought to specify rights, and the rigor and
thoroughness of Capotorti’s study can be considered as two of the conditions
that made the Declaration possible, shaping it in terms of both continuity and
specification.

3. The elaboration of the Declaration

With this resolution before them, the members of the Commission expressed
their views on the subject. At the time, these were generally in favor of the Sub-
Commission’s resolution. The delegations made reference to the seriousness
with which Capotorti undertook his research, the rigor of the Sub-Commission’s
studies and the importance of the minority issue. The Commission, therefore,
readily decided to establish a drafting committee, of unspecified composition,
directly attached to the Commission. This readiness, however, needs explaining:
216 Institutional continuity, the management of paradoxes and state consensus

it was not just the quality of the Sub-Commission’s work that accounts for the
consensus on the creation of a Declaration. I shall distinguish the two elements
which, I believe, determined the acceptance of this resolution.
1. Article 27 itself prevents any refusal to create a declaration of this kind. Once
the necessity of taking minority rights into account had been admitted in an
international instrument, it was basically impossible to renege on this point.
Any refusal of a declaration could have implied a negation of the Article in
question. The delegations, of course, could have been prepared to change their
decisions or to re-examine the resolution – but they didn’t. Probably, there was
some sense of moral and institutional credibility at stake, as the arguments
about the said instrument could not be based on judicial inadequacy: Article
27 existed. Nor could they be based on a lack of knowledge on this matter:
Capotorti’s study had been completed.
2. The second explanation, in my opinion, involves the smoothing over of the
dangers that the drafting of a Declaration might entail. The resolution’s con-
nection with Article 27 is again fundamental here. Let us recall the approval
it received within the Commission, and how this went as far as a unanimous
vote by the General Assembly. On the other hand, this Article had essentially
been formulated in such a way as to appease, and even prevent, the fears of
the states. By explicitly making the connection to Article 27, the resolution
of the Sub-Commission linked the Article intrinsically to the Declaration;
the fears that a declaration of this kind could arouse were thus silenced by
the discursive components of Article 27.
It was in this institutional context that debate on the Declaration on the Rights
of Persons Belonging to Minorities began. In order to demonstrate the various
discourses that accompanied the long drafting process, I shall examine some
of the preliminary steps. I shall then discuss the modes of construction and the
various paradoxes that had to be incorporated in this document. Finally, I shall
clarify the main themes of the Declaration.

3.1. Preliminary steps

3.1.1. A source document


During the session of 1978, when the Sub-Commission’s Resolution V was
adopted, a Working Group – open to all members of the Commission – was cre-
ated. Capotorti’s report and a proposition about the Declaration, submitted by
Yugoslavia, were put before this Group. During discussions, the Yugoslav del-
egate proved to be a significant advocate of the Sub-Commission’s resolution.
Fully supporting the Sub-Commission’ resolution, he submitted a draft Decla-
The elaboration of the Declaration 217

ration (E/CN.4/L.1367/Rev.1, cf. infra). For the Yugoslav delegate, the question
of minorities was essential. His statements, opening the debates, concerned the
necessity of viewing the protection of minorities as a fundamental element in
the maintaining of peace:
Mr. BOZOVIC (Yugoslavia)
Co-operation in the promotion and protection of the rights of minorities, provided
it was based on mutual respect of sovereignty, inviolability of frontiers, territorial
integrity and non-interference in domestic affairs, would also be in the interests
of peace. The adoption of carefully formulated principles of guidance within the
framework of the United Nations would deter any attempts to exploit the promo-
tion of minority rights as a means of furthering territorial claims or interfering in
the internal affairs of other countries.
(E/CN.4/SR.1439)
The statements by the Yugoslav representative reveal the necessity of including
the Declaration in the institutional logic of the United Nations, the preservation
of state prerogatives, and the principle of territorial integrity. It is hardly surpris-
ing to see the recurrence of these dimensions of rights, in that the debates that we
saw previously (in the context of the Universal Declaration and the Covenant)
were fundamentally anchored in fears elicited by the granting of minority rights.
We can therefore observe that the discursive strategies at work in the speaker’s
words tended to anticipate any possible objections to the mechanism. In fact, it
is possible to identify formulations that constructed this instrument as primarily
arising from state interests. This kind of statement can be found elsewhere in
the speech by the Yugoslav representative. For example, “Minority should not
be regarded as a divisive factor, but, on the contrary, as an important source of
rapprochement between States and nations” (E/CN.4/SR.1439).
The above extract reveals that the careful drafting of a document like this
allows for the effective appeasement of fears associated with minorities. The
strategy was to pre-empt such concerns and, beyond that, to indicate that these
concerns would be resolved by the Declaration, which would, in fact, respect
state interests. The discursive construction at work tended to eliminate the inter-
ests of minorities and to magnify state interests. This extract set up the basis and
conditions of possibility for the mechanism, and inaugurated the main principles
that were to guide the Working Group created during this session (Resolution
of 8 February 1978).
Once agreement had been reached on the establishment of a drafting struc-
ture, the Commission then proposed that the Yugoslav draft should form the
basis for preliminary work, the general outline of which is detailed below.
The preamble put the issue of minority rights under the aegis of human rights,
and situated the Declaration in the continuity of existing international instru-
218 Institutional continuity, the management of paradoxes and state consensus

ments. It ensured a more efficient implementation of the existing instruments


of international rights concerning the rights of national, ethnic, linguistic or
religious minorities.
A series of five articles followed. The first put forward the right of minorities
to exist and to develop their own characteristics. The second emphasized (1)
their enjoyment of human rights and (2) the principle of non-discrimination.
The third article focused more precisely on the measures that would favor the
expression of minority characteristics without, however, specifying their nature.
The fourth asserted the sovereignty and political independence of states, while
also emphasizing that no states should be able to avoid their obligations in terms
of international rights. Finally, the fifth article put forward the principles of inter-
national communication and co-operation. The draft was short, but it reflected a
conception of minority rights in relation to the notion of non-discrimination and
equality, and as being part of the continuum of existing international instruments.
At the procedural level, the study of the Yugoslav document was the object
of debate and discursive negotiation. The draft became the source text on which
the Working Group would develop the Declaration.
Initial discussions demonstrated agreement on the general principles pre-
vailing in the development of the Declaration, i.e. the principles of sovereignty,
non-discrimination, continuity with other human rights instruments and the ne-
cessity of proposing possible measures to be put in place by the states. It was
nonetheless still the case that the Working Group was to be confronted by nu-
merous difficulties as time went on. Spread over a period of eleven years, the
drafting process was characterized by a complex play of amendments, mod-
ifications of terms, additions of articles and stylistic formulations, eventually
resulting in the final proposition in 1992. Fundamentally, however, it was the
lack of a definition of the term “minority” that prolonged the whole process.

3.1.2. A definition of the term “minority” as a necessary condition


of formulation?
As we have seen, the Capotorti report contained a definition. It had evidently been
criticized, however, and thus was the target of some of the objections expressed
by the Sub-Commission: the problem of national minorities, the question of
the automatic granting of rights, etc. In the end, the definition was rejected and
the Committee then began its work without seeking to define the term. The
absence of a definition, however, gradually proved to be problematic, leading to
impasses. The Committee’s attempts to establish a definition were deferred and
did not result in any agreement. At this stage, several representatives believed
that it was it important to establish a definition that could be the basis of an
The elaboration of the Declaration 219

enumeration of minority rights in a coherent series of articles. A definition


would allow a common denominator and a conceptual context to be delineated.
Cognizant of the gaps resulting from the absence of a definition of minorities
in the Declaration, the Commission asked the Sub-Commission, in 1984, to
propose a definition that could serve as a reference for the elaboration of the
Declaration. Acceding to the request of the Commission, the Sub-Commission
then appointed one of its members, Deschênes, to undertake a study that would
result in a definition.

3.1.2.1. The Deschênes definition


A lawyer and legal expert from Montreal, Deschênes was a member of the United
Nations Sub-Commission from 1984 to 1987. In the context of this mandate, he
drafted a report – the first as far as he was concerned – that gave the following
definition:
A group of citizens of a State, constituting a numerical minority and in a non-
dominant position in that State, endowed with ethnic, religious or linguistic char-
acteristics which differ from those of the majority of the population, having a
sense of solidarity with one another, motivated, if only implicitly, by a collective
will to survive and whose aim is to achieve equality with the majority in fact and
in law.
(E/CN.4/Sub.2/1985/31)
Argued extensively throughout the document, this definition is based on previous
attempts, but also includes some supplementary dimensions. The definition is
the result of a long argumentative process, which I shall discuss presently. It
allows us to understand the reasons that led the expert to express the definition
in these terms and also clarifies the constraints relating to his formulation.
The report, entitled “Proposal concerning a definition of the term ’minor-
ity’”, has only one objective, contrary to other reports that entailed a definition
but were primarily drafted for other purposes. Immediately highlighting the
numerous earlier attempts and the evident skepticism regarding the actual pos-
sibility of such an undertaking, Deschênes presented his task and mission as
follows:
17. Despite these pessimistic comments, the Sub-Commission must respond to
the request by the Commission on Human Rights. It has been incautious
enough to entrust me with the task of ploughing the first furrow. Therefore
I invite you to accompany me in this undertaking, in the conviction that you
will help me to keep a firm hold on the handle of the plough and will pre-
vent me from embarking on digressions which, although involuntary, could
nevertheless divert us from our goal.
(E/CN.4/sub.2/1985/31)
220 Institutional continuity, the management of paradoxes and state consensus

The metaphorical formulation reflects the ambience in which the report was
submitted (skepticism and constraint). It also indicates the institutional dy-
namics and strained relations between the expert and political spaces (“the
Sub-Commission must respond to the request by the Commission on Human
Rights”). In the report, Deschênes clarified his undertaking in the following
manner:

21. I suggest that we proceed in three stages:


Firstly, we shall eliminate what I could call the “non-problems”;
Secondly, we shall isolate the variables of the concept of minority;
Thirdly, we shall attempt to identify the constants of this same concept.
22. In conclusion, we shall endeavour to construct a definition which is both
sufficiently general and sufficiently specific.
(E/CN.4/sub.2/1985/31)

This procedure accounts for two dimensions that should be situated intertextu-
ally. The question of “non-problems” must be connected to problems raised in
previous debates. Here, Deschênes anticipates any objections that could arise by
showing their unacceptability: hence, the reference to foreseen, possible objec-
tions in terms of non-problems. Furthermore, the identification of variables was
an attempt to clarify often implicit elements in previous discussions. Finally, the
constants are part of the attempts to establish a definition that was as general as
possible and therefore able to incorporate particular situations. This reflects an
effort to remain true to all the preceding attempts to find a definition.

3.1.2.2. The non-problem


The expert distinguished three “non-problems”,38 which had all, at one time
or another, been “problems” in the propositions of a definition. They were
(1) indigenous populations, (2) non-naturalized aliens and (3) “the relation-
ship between groups and their members”. In order to make these issues ap-
pear non-problematic, Deschênes constructed arguments supported by various
documents, viz. previous discussions, remarks made by national delegations
concerning the definition and references to state constitutions.
According to Deschênes, the question of indigenous populations is a non-
problem: (1) because those populations themselves do not wish to be considered
as minorities; (2) because some states (in this case, Canada and Finland) had
already effectively resolved this issue; and (3) because, at the institutional level,
the question of indigenous population groups was already subject to particular
treatment within the Sub-Commission by a Group working specifically on in-
digenous populations. At the conceptual level, indigenous populations had to
The elaboration of the Declaration 221

be excluded from the definition because, while they presented characteristics


similar to those of minorities, their situation was different in other respects:
27. (. . . ) a number of other typical characteristics are lacking, such as the nu-
merical situation and references to citizenship, to name only two.
(E/CN.4/Sub.2/1985/31, p. 6)

The question of indigenous populations was therefore not considered in the


Deschênes definition. He decided to consider this component as a non-problem
and, by the same token, exclude it from the definition.
The second “non-problem” was the question of non-naturalized aliens –
foreigners who are not nationals of the state where they are residing. This issue
has already been discussed at several stages of this study. Here, Deschênes tries
to get rid of this element in the consideration of minorities. In order to do so,
he recalls the history of minority treaties as well as previous discussions in the
Sub-Commission and Commission relevant to this issue. Considering that the
protection of minorities had always concerned nationals, he therefore concludes:
44. This conception of things has not changed. Not that a country can avail itself
of it in order to persecute aliens residing in its territory; but when it comes
to defining the rights of minorities, the first duty of the States is toward their
own citizens. To the others, it owes courtesy, which does not give rise to any
rights.
(E/CN.4/Sub.2/1985/31, p. 8)

Thus the question of non-nationals is settled by the status quo argument (“this
conception of things has not changed”), and by the absence of state obligations
regarding non-nationals, to whom the state only owes “courtesy”.
Finally, the third “non-problem” concerns the question of individual and
collective rights. Referring to previous debates on this matter, particularly those
relating to the Covenant and to the Canadian Charter of 1982, Deschênes states:
51. (. . . ) Affording protection to a minority as a group suggests the possibility
of privilege, perhaps even secession, and endangers a country’s unity.
(E/CN.4/Sub.2/1985/31, p. 9)

While, for Deschênes, this argument justifies the positioning of minorities from
the perspective of individual rights, it nonetheless emphasizes that minorities
consist of groups. The interpretation of the term “minority” in the context of
Deschênes’work, however, is to be considered in terms of rights and thus in terms
of the Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities. It was therefore impossible to include the
collective dimension of minority rights.
222 Institutional continuity, the management of paradoxes and state consensus

56. (. . . ) Every minority undoubtedly constitutes a group, but where it is a ques-


tion in determining its rights, it is on the individual as a member of the
minority that the emphasis should be placed.
(E/CN.4/Sub.2/1985/31, p. 9)

Indeed, this conclusion gives minorities a conceptual existence at the level of


the group while simultaneously stating that the rights attached to this definition
would specifically refer to the individual.
Thus, having eliminated these problems, Deschênes concludes:
57. That then disposes of the three non-problems to which I referred at the outset
namely the question of indigenous populations, which our draft definition
will not deal with; the question of resident aliens which our draft will not
consider either; and the question of relationship between groups and their
members, where the emphasis will be placed upon the latter.
(E/CN.4/Sub.2/1985/31, p. 9)

3.1.2.3. The variables


Once the “non-problems” had been eradicated, it was then necessary to identify
the elements that directed the definition, i.e. uncompromising variables. In order
to do so, Deschênes identified two variables considered to be intangible: the
collective will to survive and the criterion of number.
With regard to the “collective will” of minorities, Deschênes returned to
the debates on the question of whether this criterion was a determinant of the
definition of a minority. He adopted an affirmative position: he included this
variable in his definition, while insisting on the fact that it was up to the minority
in question to ask for it. He referred to the use of these kinds of rights by certain
states, in order to confine, and thus exclude and stigmatize, minorities. This
justified, in his opinion, the necessary presence of the variable – implying a
“will” on the part of minorities – in the Declaration. At the same time, he had
to confront another consequence of collective will, which could possibly result
in forced assimilation. Deschênes attempted to limit this risk, as Capotorti had
done, by introducing the “implicit” dimension of the collective will.
Deschênes associated collective will with the “will to survive”. He con-
sidered that the main objective in the protection of minorities did not merely
concern their unique characteristics but the maintenance of these characteristics
as a condition of existence and survival.
Finally, this variable was also used by Deschênes in order to exclude mi-
norities desiring assimilation from measures of protection. Such minorities,
therefore, would not require any protection, as they tended to merge with the
dominant population.
The elaboration of the Declaration 223

74. (. . . ) Therefore, for the purposes of the definition, the only minorities of
interest are those who wish to continue to exist and be recognized as such,
with their own ethnic, linguistic or religious characteristics. The others, those
who wish to merge into the dominant mass, do not require protection.
(E/CN.4/Sub.2/1985/31, p. 12)

The second intangible variable concerns the criterion of number. Returning to


particular objections in this regard, Deschênes resolved two problematic aspects
generally associated with this criterion. First of all, as far as the question of
the “minimum number” was concerned, Deschênes indicated that a definition
did not have the capacity to resolve this point as it was “purely a question of
fact” (p. 12), and was not susceptible to giving “a mathematical answer to this
question” (p. 12).
The second point concerned the question of an oppressed majority. De-
schênes presented an extensive argument on this issue, referring, among others,
to the example of the non-dominant black majority in South Africa. It was ev-
ident to him that, in this situation, the dominant white minority was not to be
included in the definition. He also indicated, moreover, that the oppressed black
majority was not to be included either:
88. Consequently, there is no need to stretch the traditional meaning of the word
“minority” to make it encompass a reality which is essentially alien to it and to
make it play a role doomed in advance to failure. The second question raised
with regard to the second variable should therefore receive an affirmative
reply: to qualify as a minority, a group has to be smaller in number than
the rest of the population of the country of which it is a part and to be in
a non-dominant situation. To return to the paradox mentioned above, the
definition we are seeking should cover only minorities that are truly in a
minority situation in the strict sense of the term.
(E/CN.4/Sub.2/1985/31, p. 14)

He came to this conclusion by means of two arguments. The first is etymological:


“Etymologically, the question can have only one answer: to be a minority, a group
has to be able to claim that it is in a minority situation, in other words that it is
less numerous than the total of its neighbors” (p. 13). The term “minority” is
in itself transparent – there is no room to give it meanings that it does not have
intrinsically.
The second argument relates to the fact that it would be reductive to consider
that minority rights apply to oppressed majorities. Indeed, for Deschênes, “[i]t
would be an insult to the dominated majority to consider it to be similar to
a minority and, to protect it, to appear to restrict its rights to those set forth
in article 27 of the Covenant, namely culture, language and religion” (p. 14).
224 Institutional continuity, the management of paradoxes and state consensus

The rights that can be claimed by these groups are based on the fundamental
principles of the United Nations Charter.
Thus the maintenance of the numerical criterion is justified in direct and in-
dissoluble relation with the principle of non-dominance. The association of these
two elements permits the exclusion, from the field of minorities, of oppressed
majorities (absence of the criterion of number) and dominant minorities (ab-
sence of the criterion of non-dominance), while not fixing a minimum number.

3.1.2.4. The constants


The last point I shall focus on is the identification of minority characteristics:
ethnic, linguistic and religious. This is part of the search for constants and is
an attempt to respond to the question of what is meant by minorities in the
international context of the United Nations.
By means of this question, Deschênes returned to a recurrent issue: the
inclusion or exclusion of the mention of national minorities. Indeed, during the
initial discussions of the drafting Committee, there was the question of extending
the field of the Declaration by provisionally including the mention of “national”
minorities (to which I shall return in the next section), leading Deschênes to ask:
90. (. . . )Therefore, exactly which are the minorities concerned – national minori-
ties, other minorities, or all minorities taken together? The difficulty arises
from the fact that the terms have not been defined. We know almost instinc-
tively the meaning of “religious minority” or “linguistic minority”, but the
distinction between “ethnic minority” and “national minority” is not evident.
(E/CN.4/Sub.2/1985/31, p. 15)
Deschênes demonstrated that the term “national minority” is so ambiguous,
and subject to so many interpretations (“national” in the sense of sub-national,
or “national” as incorporating an ethnic dimension, or “national” minority re-
ferring to non-naturalized aliens) that it posed a significant problem. All the
divergences listed by Deschênes are thus introduced by the formula “What pur-
pose would be served . . . ?” indicating the time-wasting nature and impasses of
these discussions. What Deschênes draws from this enumeration of differences
is that “all these examples amply demonstrate the importance of avoiding any
possible source of ambiguity by eliminating the use of expressions on whose
meanings there may not be unanimous agreement” (p. 16). He then concludes
that the term “national” had no place in his definition; he retained the term
“ethnic”, as unambiguous and susceptible to wider usage.
These arguments allow us to understand the various terms and formulations
of the Deschênes definition. They also highlight the various problems involved
in such an undertaking, while proposing solutions in order to arrive at the much
sought-after definition. It must be stated, however, that the definition is clearly
The elaboration of the Declaration 225

the outcome of institutional and political restraints, that it shifts between ob-
jective and subjective criteria, and that it tends towards a view of minorities as
static rather than dynamic. The last element is absolutely necessary, in that the
Declaration had to be elaborated in terms of rights. It is difficult, therefore, to
imagine that a dynamic definition could preside over the specification of the
undeniably static principles of international rights.
It would be useful to now observe how this document was received by the
members of the Sub-Commission.These discussions reveal disagreements about
some aspects of the definition, which would come up again in the drafting
Committee. Furthermore, the pervasive skepticism with regard to the definition
in the Sub-Commission undermined the legitimacy of the Deschênes definition,
resulting in the Committee absolving itself from the task of definition, as we
shall see in the next section.

3.1.2.5. The discussions within the Sub-Commission and the impasses


in the definition
This report, and the definition it produced, was debated in 1985 during the
Sub-Commission’s 38th session. One after another, members took the floor to
make various remarks about the document under discussion. It is evident, in
the summary records, that skepticism about the actual possibility of a defini-
tion was a significant part of the discussions. Each member, as is the custom,
acknowledged the quality of Mr. Deschênes’ work; many, however, referred to
the impossibility of such a task, as we can see in the following examples:
M. KHALIFA said that, notwithstanding the excellent quality and presentation
of Mr. Deschênes’ report, the author’s mission had really been an impossible
one. The quest for a definition of aggression had required seven years of work.
After attempting to produce a definition of the term “minority” over a period of
four years, the Commission of Human Rights had then passed the task to the
Sub-Commission, which, in its turn, had delegated it to Mr. Deschênes.
(E/CN.4/Sub.2/1985/SR.13)

Mr. MAZILU said he had serious doubts as to whether it was the major task of the
Sub-Commission to define the term “minority”. The Sub-Commission’s duty was
to act for the prevention of discrimination and for the protection of minorities.
(E/CN.4/Sub.2/1985/SR.13)
These two excerpts illustrate the dominant position in the Sub-Commission,
which was characterized by a resistance to the task it had been given by the Com-
mission. In the course of its existence, the Sub-Commission had made several
attempts at this undertaking, often on its own initiative. These attempts had been
systematically ended, either by the impossibility of consensus within the space of
226 Institutional continuity, the management of paradoxes and state consensus

expertise, or by rejection on the part of the Commission. The Sub-Commission


had nonetheless resigned itself and come to believe in the possibility of fulfill-
ing its mandate. This time, it was the Commission which finding itself in a kind
of impasse, asked the Sub-Commission to comment on the subject. Most of
the Sub-Commission’s members deemed Deschênes’ attempt to be inadequate.
Generally, any assertion of the impossibility of a definition was connected to
objections with regard to the proposition, concerning different aspects.
The will to survive is one such aspect. For some, the wording was too strong,
and could justify the “irredentist” positioning on the part of minority groups.
Many experts considered that the term “survival” was probably too restrictive
for states, as they could then be faced with the dilemma of territorial expansion:
43. Mr. Simpson (. . . ) In Africa, regions occupied by certain ethnic groups spread
across one or several frontiers, and if one of those groups relentlessly pursued
“its collective will to survive” it could be a serious threat to the territorial in-
tegrity of the States concerned, It was to avert such threats the Organization of
African Unity insisted that the frontiers inherited at the time of independence
should be considered sacrosanct.
(E/CN.4/Sub.2/1985/SR.14, p. 9)
Here, we should highlight the displacement effectuated between, on the one
hand, a definition that supports the will of minorities to preserve their character-
istics and, on the other, a definition that supports the collective manifestation of
survival, thus opening the way to claims of patrimonial preservation, so feared
by many states. This displacement implies that the preservation of particular
characteristics constitutes a form of “survival”, thereby making any measures
associated with this definition all the more compelling, as they are founded on
moral and ethical principles.
Another element did not win the approval of the experts: the criterion of
number. While the notion of numerical minorities was not really contested, and
while this may only indicate that the criterion of non-dominance was consid-
ered as more significant, objections were made primarily about the absence of
a minimum:
Mr. Whitaker
15. Secondly, though the problem of the number of members of a minority was
not crucially important, it would be well to determine whether or not the
individual constituted the ultimate minority. A case in point was that of the
Nordic-speaking shepherds inYorkshire, who were probably descended from
the Vikings. Although the group comprised only 10 persons at most, it un-
doubtedly constituted a minority, even though it was not able to make itself
heard in international fora.
(E/CN.4/Sub.2/1985/SR.14, p. 4)
The elaboration of the Declaration 227

The speaker gives an extreme example that tended to bring up questions about
the absence of a minimum number. This is a provocative illustration, as it brings
up the possible limitation of the Deschênes definition by means of depicting
the individual as the ultimate minimum number. Deschênes’ decision not to
explicitly include this point in his definition gave rise to doubt about any possible
implementation of rights that did not establish a numerical limit. In fact, behind
this discourse, there was a question of the financial costs and infrastructures that
could be involved in the establishment of protective measures, burdening the
state budget and therefore penalizing the whole population.
Another aspect of the numerical criterion was raised, regarding the distinction
between a minority within a state and a majority within a region. At this stage,
in fact, the numerical criterion posed a series of questions about the objectivity
of criteria which, when applied to actual situations, reveal some operational
relativity. These criteria essentially seek to justify the impossibility of defining
“terms”: this demonstrates that even an apparently simple criterion proves, in
the end, to be profoundly complex.
Beside the objections based on the criteria of number and the will to survive, I
shall refer to two other objections that underscore the complexity of the problem,
primarily through the absence of particular elements in the proposed definition.
These objections concern either the lack of precision or the over-reduction of
specific criteria.
In this regard, Bossuyt raises the question of priorities in terms of the rights
that a definition should include. In the following extract, he insists on the hier-
archical ordering of minorities:
Mr. Bossuyt
Yet another element needed to be taken into account, namely the origin of the
minority in question. A minority of inhabitants that originated from a given region
should be given a greater protection than settlers who had imposed themselves
on the minority or people who preferred to become assimilated to the culture of
a foreign occupier.
(E/CN.4/Sub.2/1985/SR.13)

Here, the expert makes a distinction based on a new criterion: origin. He distin-
guishes between historical minorities and recent minorities. In his opinion, the
former should be given “greater protection”, the latter being regarded as either
intrusive or insignificant, according to their desire for assimilation.
The second objection concerns the limitations and restrictions incorporated
by the definition. The Soviet expert objected to the absence of national minorities
in the definition, and then demonstrated the necessity of such a consideration
for the good of minorities:
228 Institutional continuity, the management of paradoxes and state consensus

Mr. Sofinsky
Following the Russian Revolution, the Communists had taken the view that, in
order to establish equality for individuals and groups, there must be economic
equality. Lenin had decreed that the national minorities which existed in the Rus-
sia of the time should be enabled to live better than the great nation itself. The
implementation of that policy had led to the enhanced development of the regions
where such groups lived; in some cases industrial production had increased 700
or 800 times. Thereafter, the concept of national minorities had gradually disap-
peared in the Soviet Union. Only economic equality on the basis of ownership of
the means of production by all could ensure the equality of groups and individuals
and the elimination of the problem of minorities
(E/CN.4/Sub.2/1985/SR.15)
These statements are familiar as they reflect a continuity of the Soviet position
on minorities. The discursive strategy being used here is connected to the cri-
teria delineated by Deschênes and his refusal to include national minorities in
the definition. The speaker constructs a discourse intended to demonstrate the
necessity of the concept of national minorities, the final consequence of which
is the disappearance of minorities in favor of equality.
In another register (more anecdotal in that it is more provocative, but worth
highlighting), the question of the characteristics specified by Deschênes is again
brought into question by Mr. Whitaker. In fact, he questions – for the first time
ever – the sacrosanct trinity:
20. In the definition he proposed (E/CN.4/Sub.2/1985/81 paragraph 181), Mr.
Deschênes laid emphasis on “ethnic, religious or linguistic characteristics
which differ from the majority of the population. However, there existed
between individuals, for example Tziganes, links of a cultural nature that were
neither ethnic, nor religious, nor linguistic. Other groups, such as women,
children and homosexuals, also had characteristics that were neither ethnic,
nor religious, nor linguistic.
(E/CN.4/Sub.2/1985/SR.14, p. 5)
Such statements are indeed rare; however, it should be noted that, in Whitaker’s
speech, it is hard to work out the place that this extract has in his general ar-
gument. In fact, the speaker’s position with regard to these statements remains
unclear; all we know is that they are part of the acknowledgement of the com-
plexity of the minority phenomenon that, if it is to be circumscribed within the
context of a definition that is as general as possible, must take into account the
above mentioned groups.
The Deschênes definition sought to eliminate problems once and for all, to
specify clear and objective criteria, and to take into account different ideologi-
cal and institutional constraints. In the context of debate, however, it evidently
The elaboration of the Declaration 229

failed. The majority of the members of the Sub-Commission were skeptical:


they expressed many objections and essentially demonstrated the limitations of
Deschênes’ arguments.
In these debates, we should probably see a real refusal to create a defini-
tion that would incorporate all possible situations. In a way, the experts were
reflecting the logic that had been imposed upon them: a logic that both involved
the political impasses of the definition and emphasized the necessary particu-
larity of the term “minority”. The proposal of such a definition comes back to
debate about universal concepts that are valid for all. As we have seen through
the Covenant, everything depends upon a certain detachment from universality
which somehow allows these rights to exist. The task of the definition is differ-
ent, however. It seeks to explicitly identify those who should have these rights,
thereby raising a series of obstacles in the path to the creation of that definition.
Under the obligation of providing a response to the Commission, the experts
of the Sub-Commission chose to submit Deschênes’ report. They appended to
it, however, a resolution inserting the definition in a discourse that effectively
allowed them to dissociate themselves from Deschênes’ propositions. The for-
mulation is thus indicative of their lack of solidarity with their colleague. Indeed,
while the resolution lauded the fine quality of Deschênes’ work, it indicated the
non-achievement of the definition by the addition of the term “provisional defi-
nition”. The definition was introduced, not in the name of the Sub-Commission,
but in the name of the author: “the definition that he proposes”. Finally, the res-
olution included a paragraph that explicitly mentioned the disagreements about
the definition: “la définition proposée n’a pas recueilli l’approbation générale”
[The suggested definition has not been met with general approval].
What I have demonstrated so far is the extreme difficulty of the creation of
a definition in a context like the United Nations, which juggles different states
interests with a compelling, institutional ideology. The failure of the Deschênes
definition demonstrates the possible limitations of an understanding of minori-
ties and their protection in a context that is based either on universality, thus pre-
venting the introduction of rights, or on particularity, thus making the existence
of a definition incorporating all particular traits impossible. This difficulty, how-
ever, was not sufficient to legitimate its absence. What I shall demonstrate below
is that the absence of a definition fundamentally served the interest of states.

3.2. The resolution of paradoxes: the conditions of the Declaration’s


acceptability

The two preliminary steps – the source document and the definition – allowed
the Committee to realistically envisage the drafting of the Declaration. The
230 Institutional continuity, the management of paradoxes and state consensus

Committee then began his examination of the source text, amending it and
adding other articles. The work of writing was well and truly under way.
I would like to focus my analysis on the different stages of the construction of
the mechanism. In doing so, I shall refer to the different reports of the Drafting
Committee, which met annually from 1978 to 1992. These reports are, in some
respects, limited. As they are not summary records, they mainly present the
general outline of the debates. They pass over certain ideological divergences
without comment, and only partially synthesize the complexity of the differ-
ent positions adopted by delegations. At times, however, the reports indicate
disagreements and problems when unanimity was not achieved. According to
the importance of the remarks made by the state representatives, some of their
speeches are specifically cited.
These reports, intended for the Commission, sought essentially to bring to
light the guiding principles of the debates, the problems encountered and so-
lutions found, without, however, explicitly revealing the ideological tensions
peculiar to certain states – except in some cases. The analysis that follows will
therefore take into account both the limitations and possibilities provided by
the examination of this report. While the reports of the Committee are limited,
they nonetheless raise the challenges that confronted the members. These chal-
lenges concerned the conditions of acceptability, rather than the conditions of
possibility, of the said document.
Several paradoxes are inherent in the drafting of a document of this kind,
which arise from the nature of the subject (minorities), from international law
regarding human rights and from the interest of the states (after all, the states
were involved in the drafting of the instrument). My analysis will therefore
focus on the drafting mechanisms, envisaging how the paradoxes, inherent in the
drafting of a declaration on minorities within the United Nations, were resolved,
so that it fulfilled the conditions of acceptability of a regulatory document. These
paradoxes are:
1. a paradox between the presence and absence of a definition of the term
“minority”;
2. a paradox between individual and collective rights;
3. a paradox between state obligations and state interests.

3.2.1. A paradox between the necessary presence of a definition and


the impossibility of creating one
The first paradox that characterized the conditions of the Declaration’s accept-
ability related to the issue of definition. At the conceptual level, it seems rather
obvious that an undertaking like a declaration on minorities would be anchored
The elaboration of the Declaration 231

in a particular view of minorities and, by extension, that this would necessitate a


definition of the term “minority”. At the ideological level, however, the creation
of a definition posed a fundamental problem. While the presence of a defini-
tion in the Declaration would clarify the object of the international mechanism,
it would also reveal the dissensions associated with it. These two paradoxical
elements induced different procedures, which I shall attempt to demonstrate
below.
When reading the various reports, one may well conclude that if there was any
consensus, it was not on the definition but rather on its impossibility and irrele-
vance. As we have seen, the Committee requested that the Sub-Commission pro-
vide a definition that could serve as the basis for the drafting of the Declaration.
The Committee then received the Deschênes document, the Sub-Commission’s
resolution, and all the summary records of the sessions concerning this doc-
ument. In 1986, having reiterated the need for a definition several times in
previous years, the Committee decided to abandon the inclusion of a definition
in the Declaration. The Commission considered that the disagreements in the
Sub-Commission were obvious and that the proposition could not, therefore,
serve as a basis for the Declaration.
The failure of the Deschênes document explicitly demonstrated the refusal
to define the term “minorities”, and caused the Declaration to be discussed
without a definition. This was then justified by the apparent impossibility of
such a task. Although the question of a definition reappeared from time to time
in the discussions on the elaboration of the Declaration, the general opinion was
that the definition was a waste of time:
There was general agreement that these long-standing problems, as well as simi-
lar difficulties encountered in the preparation of national legislation, should not
continue to delay the work of the Working Group which should proceed with the
drafting with the basis of flexibility and practicality.
(E/CN.4/1991/53)
The report went on to provide one way of resolving the paradox as follows:
The view was expressed that the present declaration did not necessarily have to
contain a definition of the term “minority”, as such a definition was absent in
other human rights instruments. It was pointed out that the draft, by the use of the
adjectives national, ethnic, religious and linguistic in front of the term, already
specified what scope it would have and whom it was intended to benefit. An effort
should nevertheless be made to clarify the meaning to the degree possible. It was
also stated that the declaration could function perfectly well without precisely
defining the term as it was clear from its classical meaning in which groups the
term referred in concrete cases.
(E/CN.4/1991/53)
232 Institutional continuity, the management of paradoxes and state consensus

These statements reveal a paradoxical position, involving the recognition of


absence on the one hand, and an implicit presence on the other. Three arguments
can be discerned in this approach:
1. Non-necessity by comparison: other instruments do not contain a definition
but nonetheless exist and function.
2. Non-necessity of an explicit definition and the presence of a form of definition
through the specifications of the term “minority” (“already specified what
scope it would have”).
3. Existence of a definition through evidence, the term “minority” being con-
sidered as transparent (“classical meaning”).
How can this discourse, which justifies the absence of a definition while at the
same time seeking to give meaning to the term “minority” without defining it,
be explained? There are two possible answers to this question:
1. The presence of a definition poses a problem because:
– multiple state interests would have to be factored in to the definition’s
context;
– it could be seen as compelling and prevent certain states from disengaging,
according to the definition chosen.
2. The absence of a definition poses a problem because:
– the relevance of such a declaration would become too general and non-
restrictive;
– openness to interpretation would allow some groups to claim minority
status.
There is, therefore, a tension between the presence of a definition, which would
prevent consensus, and the absence of a definition, which would result in too
general an application. It was thus deemed necessary to find another way of
specifying rights in a consensual manner. The most obvious feature of this
implicit and restrictive definition is the qualifiers associated with it, as the extract
above demonstrates.
While we see some consensus on the different qualifiers attributed to the term
“minority” in the Declaration, it must be admitted that, in spite of the absence
of a definition, some states objected to the specifications attached to the term.
The most striking remarks, which I believe clearly demonstrate the restriction
of the rights enunciated in the Declaration, are those of the French delegate. His
speech, which he asked to be officially included in the Working Group’s report,
reveals this restriction, as well as obvious attempts to make up for the absence
of definition.
From the beginning, the Working Group had retained the expression: “na-
tional, religious, ethnic and linguistic minorities”. In the final text, however,
The elaboration of the Declaration 233

we see a disjunction where none existed before: the insertion of “or” between
“national” and “religious”. This apparently innocuous little discursive element
is anything but neutral. Its presence is, in fact, the result of a specific procedure,
introduced and explained by the French delegate in a long discourse, part of
which is reproduced below:
France does not recognize on its territory the existence of groups whose particular
features are based on racial, linguistic and religious criteria. France’s ideas are
based on a universal principle: “All human beings are born free and equal in
dignity and in law”. The French Constitution draws on this principle, and under
the Constitution all citizens of the Republic, which is one and indivisible, are
equal before the law.
(. . . )
It seems to us that, to avoid dangerous combinations, the Working Group should
weigh up the possibility of focusing its concern on national minorities; there are,
as my country is fully aware, communities whose members have a specific cul-
tural, linguistic and religious heritage, in given regions and which, in the light of
particular historical circumstances, have manifested their existence as “national
minorities”, The linguistic, or the religious, or the ethnic, criterion cannot suf-
fice. We should set our sights on guaranteeing for persons belonging to national
minorities, the presence of which in a given territory is historical, the requisite
conditions for protection of their identity, so that they can effectively exercise,
without discrimination, their rights and freedoms as persons; we should above
all, in this way make a proper contribution to an appraisal of the ways and means
of preventing, reducing and resolving tensions that might arise, in some regions
of the world, from the historical existence of national minorities, whose members
rightly demand preservation of their identity.
(. . . )
Above all, in France’s opinion, the formula “national minorities” would alone
satisfactorily reflect the purpose of the declaration, since the religious, linguistic
and ethnic criteria are not, taken on their own, sufficiently meaningful.
(E/CN.4/1991/53, p. 17)
This position then led France to propose that the disjunctive “or” should replace
the comma that had acted as a conjunctive. This discursive modification meant
that the field of attributes associated with the term “minority” could be split,
thus implying only the recognition of historical minorities.
This example demonstrates the issues involved in both the absence and pres-
ence of a definition, introducing a paradox that could only be resolved by discur-
sive means. The resolution of the paradox of the definition reveals the necessary
political component of a procedure like the drafting of the Declaration, which –
one way or another – is anchored in a reflection of state interests.
234 Institutional continuity, the management of paradoxes and state consensus

3.2.2. A paradox between collective and individual rights


This paradox consists of three elements. The first involves the actual nature
of a minority. Independently of any definition given to this term, one thing is
sure: persons belonging to minorities exist because there are groups that are
distinct from the rest of the population. Accordingly, the evocation of rights
with regard to the phenomenon of minority logically implies that the rights in
question pertain to these groups.
The second element involves the nature of international human rights mecha-
nisms. These refer principally to individual rights and do not specifically provide
for group rights. The individual aspect of these rights can be explained by the
fact that, while there is universality, it can only be applied to individuals, not to a
collectivity. Although the principle of individual rights is the basis of the human
rights system, the United Nations gradually acknowledged the particularity of
rights, as exemplified by the Covenant. Nonetheless, the primacy of individual
rights was maintained, with the exception of the right of self-determination, the
only collective right of the United Nations at that time.
The third element involves the interests of the states. Individual rights did not
in any way interfere with the pursuit of state interests and therefore achieved a
degree of acceptability. Collective rights have always been problematic insofar
as they concern groups and thus tend to endanger the homogeneity of the state.
These elements reveal a tension between the actual concept of minority and
state interests, as well as the ambivalence of institutional structures with regard to
individual and collective rights. Furthermore, they confronted the writers with
the practical necessity of recognizing the twofold dimension of the rights of
minorities, without which the Declaration would be fundamentally impossible.
Discussions took place, certainly, and while individual rights were apparently
favored, the practical impossibility of totally negating collective rights remained.
The drafting Committee was thus led to seek a balance between the two:
At the conclusion of this debate, it was proposed that the choice between individual
and collective rights was not an absolute one, but would and should have to depend
on the context of the rights, freedoms and duties spelled out in each article of the
draft declaration. It was considered likely, upon examination of the contents of
each article, that both approaches could be applied in a practical and balanced
manner.
(E/CN.4/1991/53)

In order to leave the question of individual and collective rights open during
the discussions, the writers chose to put the two possibilities, marked discur-
sively by “persons belonging to minorities” or “minorities”, into parentheses
until the final debate. The different stages of the text are therefore strewn with
The elaboration of the Declaration 235

these parentheses, allowing the question of individual and collective rights to


be removed from a discussion of the contents. At a procedural level, the debates
on the articles were thus officially detached from the question of individual and
collective rights. At an ideological level, there was a strong tendency towards
the recognition of individual rights.
A simple comparison of the drafts and the final text brings irrefutable proof.
The much sought after balance did not happen. All the statements put into
parentheses were explicitly replaced by one and the same formula – one that
dealt with individual rights. An illustration of the primacy of individual rights
over collective rights is provided by the words of the Working Group’s reporter:
The opinion was stated that the rights of individuals, including persons belonging
to minorities, were of fundamental importance and should be emphasized in the
draft declaration. The protection of all individuals against discrimination and the
creation of societies where they could freely enjoy their rights and freedoms was
said to be the very essence of the drafting exercise. For these reasons, the phrase
“persons belonging to” should be retained in the text of the draft declaration
wherever possible.
(E/CN.4/1991/53)
These statements clearly highlight the primacy of individual rights. Indeed, terms
such as “the very essence” and “fundamental importance” are a clear signal of
the objectives and rights assigned to the Declaration. These then resulted in the
elimination of the term “minority” in the final version, in favor of “persons”.
The notion of minority, however, finds itself in a paradox with the term
“essence”. In effect, there are no individuals belonging to minorities if there is no
group with which the individuals in question identify themselves. Furthermore,
there can be no protection of individuals belonging to these groups if there is no
protection of the groups. While individual rights implied protection in general,
a way of stipulating collective rights had to be found, if the latter were not to
supplant the former.
Two discursive strategies can thus be demonstrated. The first can be found
in Article 1, the only article that mentions the term “minority” without the
addition of the words “persons belonging to”. The presence of collective rights
is somewhat ambiguous in the Article, giving rise to different interpretations.
The second strategy, more explicit but just as ambiguous, occurred in Arti-
cle 3 and assumed a different form. This Article granted individuals the exercise
of rights “individually as well as in community with other members of their
group”. The formulation is very interesting in that it emphasizes the resolution
of the paradox while maintaining the primacy of individual rights. Those who
exercise the rights are “persons belonging to”; the ways in which they exercise
the rights are individually or “in community”; the community, however, is not
236 Institutional continuity, the management of paradoxes and state consensus

the group, but “other members of their group”. Here, then, is a resolution of the
paradox, which basically maintains the exercise of rights for the individual, or
for some individuals who belong to a group, while also recognizing collective
rights. While there was recognition of collective rights, it did not apply to the
group, but to members of a community.
One could, of course, argue that it is possible to see an explicit recognition
of group rights in the Article. I am not disputing this. At the discursive level,
however, it is still the case that the formulation tends to establish a hierarchy of
rights: individual rights above the rights of groups, and a subordination of the
group to the individual.
The paradox between individual and collective rights is thus resolved. This
was effectively brought about by discursive procedures that left the interpretation
of collective rights open and, moreover, allowed states to avoid any risk by
guaranteeing group rights while maintaining the prerogative of individual rights.
These paradoxes, their resolution and the definition clearly demonstrate the
general context of the conditions of acceptability of the Declaration. The Decla-
ration, however, concerns the duties of the states, as well as the promulgation of
rights. The debates we have so far discussed clearly highlight strategies for the
restriction of rights. Now we shall focus on those that reveal strategies intended
to limit the duties of the states.

3.2.3. State duties and state interests


As I have shown above, one of the missions of the Declaration was to specify
the rights of minorities according to the logic of Article 27. The duties of the
state towards minorities had to be an intrinsic component of the Declaration.
The constraints of this type of document thereby bring to light a third paradox,
between state duties and state interests. This led the Working Group to take steps
to stipulate the duties of states while ensuring that they remained limited and, if
possible, not obligatory. In this procedure, working on discourse – expressions,
words and formulae – once again became an essential element in the resolution
of the paradox. I would like to discuss this point by focusing primarily on the
discursive formulations of these duties, as they can be read in the final version,
and shall also demonstrate the kind of negotiation that took place in the context
of the Working Group’s discussions. I refer here to the various verbal formulae
associated with state duties,39 cited below:
States
1. shall protect (Art.1, §1)
2. shall adopt (Art.1, §2)
3. shall encourage (Art.1, §1)
The elaboration of the Declaration 237

4. shall take measures where required (Art.4, §1)


5. shall take measures . . . except (Art.4, §2)
6. should take measures so that, wherever possible (Art.4, §3)
7. should, where appropriate, take measures (Art.4, §4)
8. should consider appropriate measures (Art.4, §5)
9. should cooperate (Art.6 and Art.7)

On first reading the verbs relating to state duties, one initially discerns a series of
declarative verbs that seem to clearly, without any restrictive clauses, enunciate
the duties of the state (1, 2). These appear in the first Article, formulating the
general principles. Here, there are clear statements of the state’s duties, but
in a general, non-specific way, taking into account the tenor of the first two
paragraphs of the Article: the first deals with the right to existence and identity,
and the second is related to the legislative measures adopted to effectuate the
contents of paragraph 1.
The formulation appears to be clear and final, and the Article decrees a
duty that may at first sight seem compelling. However, it is only very partially
so. The general nature of this Article and the absence of any mention of what
the states must do in order to protect existence and identity effectively limit
the compulsion. On the other hand, and in spite of the general nature of the
first Article, the presence of the verb “encourage” (3) appears in the second
proposition of the first paragraph, in a conjunctive position. This verb refers
to the “conditions for the promotion of that identity”. The degree of semantic
obligation is minimal here, compared to the verbs “protect” and “adopt”. It also
gives the state every opportunity to decide on its degree of commitment to the
establishment of means to promote identity and existence.
Following a linear reading of the text, we then find in Article 4 a specification
of the state’s duties. In the five paragraphs that make up this Article, we can see
one constant: the presence of the verb “take measures” with “states” in the
position of subject. This, however, was also the object of varying degrees of
obligation.
There are, in my opinion, two different manners of effectuating the limitation
of state duties: (1) the formula of exception and (2) the formula of balance.
These two strategies were the object of negotiation in the drafting Committee.
Each word was chosen, discussed, endorsed, refused – all with great care. The
language work involved clearly demonstrates one thing: the constant quest for
formulae that would minimize the specific duties of the state, with negotiations
about the degree of minimization in terms of the Articles under discussion.
This formula is characterized by an explicit statement of the duties of the
states, introduced by “to take measures”, in an unequivocal assertion. In the
238 Institutional continuity, the management of paradoxes and state consensus

next step, however, the statement is modulated by a clause that allows non-
conformity, introduced on this occasion by the connector “except”. This formula
of exception is found in Article 4, paragraph 2. The Article primarily refers to
the measures taken by the states in order to allow individuals to express their
particular characteristics. The clause of exception refers to the fact that the states
may waive this obligation when (1) practices are “in violation of national law”
(Art 4, par 2), and (2) they are “contrary to international standards”. While
these exceptions, and in fact restrictions, may be understandable in themselves,
the formulation remains ambiguous in the sense that national legislation still
has primacy as far as minority rights are concerned. Moreover, this highlights
the inadequate scope of Article 1, paragraph 2, which stipulates that the states
adopt legislative measures in order to preserve the existence and the identity of
minorities. This brings up the problem of the prior existence of these rights, and
the manner in which they are set out in the context of the Declaration.
The other discursive technique mentioned above, relating to the restriction
of duties, consists of finding formulae that allow the duties of the states to be
measured. In this regard, we can refer to the use of modal auxiliaries, such as
“shall”, in the form of the conditional (“should”), which therefore indicate an
inadequate degree of constraint.
Furthermore, the use of the modal verb in the conditional is sometimes
accompanied by an adverbial phrase, “where required”, which allows states to
consider the stipulated duties as not pertaining to them (for example, when they
do not have minorities in their territory), or to be free to ignore the necessity for
such an undertaking. Finally, another form of the measuring of state duties can be
found in the adjunction of another adverbial phrase, “wherever possible”, which
means that the states cannot be forced to fully carry out any particular obligation.
The different indications of measure are directed towards a resolution of the
paradox, which allows state duties to be enunciated while, at the same time,
allowing states (1) to envisage limitations of rights and (2) to have no obligation
to comply.

3.2.4. Synthesis of the section


In my analysis of the modes of discursive construction of the Declaration on
the Rights of Persons Belonging to Minorities, I have shown that the processes
of elaborating the document sought to resolve three paradoxes. Each of these,
in its own way, highlights (1) the complexity of the relations between states
and minorities; (2) state interests and the practical necessity of recognizing the
existence of minorities; and (3) the use of discursive strategies in order to arrive
at a formulation that suited those in power.
The elaboration of the Declaration 239

We can, in a way, consider that the actual possibility of the document’s


existence was due to the resolution of these paradoxes, as it occurred in the
course of time. By this, I mean that without this resolution, there would probably
have been no possibility of the document’s existence, in that each element of the
paradoxes (individual and collective rights; definition and non-definition; state
obligations and state sovereignty) is essential to the Declaration. In fact, the
final product is no more than a compromise, revealing the elements that brought
the hegemony of states into question and also, by means of the manipulation of
language, ensured that the questioning was as limited as possible.

3.3. The Declaration: the final document and the place of language

Thus far, I have demonstrated the way in which the idea of the Declaration
emerged, and the conditions of possibility of its conception. I then attempted
to show the different ideological constraints that were prevalent during its de-
velopment. Now, I would like to briefly comment on the final40 version of this
mechanism.

3.3.1. The general structure of the Declaration


The Declaration is composed of a preamble and nine articles. As Thornberry
(1993) states in a commentary on the Declaration, “defining the object and
purpose of an international instrument highlights an important function of the
preamble” (p. 34). He goes on to say that “the preamble situates the text in its
human rights or other context and sets out what the instrument is designed to
achieve” (p. 34).
The preamble of the Declaration begins by placing it in the continuum of
fundamental principles of human rights. The use of the word “reaffirms” is an
explicit sign of this ideological association. At the intertextual level, an explicit
association is also made in the mention of other international instruments and an
explanation of the connections between this text and Article 27 of the Covenant.
Secondly, the justifications of the Declaration’s mission appear: the social and
political stability of the state and the promotion of democracy, friendship and co-
operation among people. Thirdly, institutional structures and the work that had
already been accomplished are evoked, signifying the importance of minority
protection in the view of the United Nations and other organizations. Once
these elements have been put forward, the Declaration is then presented as a
step forward that allows existing international instruments to be enacted “more
effectively”.
240 Institutional continuity, the management of paradoxes and state consensus

Following the preamble, which anchors the discourse, situates it within his-
torical, structural and ideological affiliations and justifies its existence, nine arti-
cles are proposed, dealing with the diverse components of rights and obligations:
1. the protection of existence and identity;
2. the enunciation of rights;
3. the principle of non-discrimination;
4. the obligations of states;
5. national and international political programs;
6. international co-operation in terms of exchanges aimed at a better under-
standing of minority interests;
7. international co-operation regarding observance of the Declaration;
8. enjoyment of rights;
9. the role of the United Nations.

3.3.2. Linguistic minorities and language: their discursive inclusion


In the context of this global structure, some elements of the Declaration contain
specific mentions of language and linguistic minorities. In order to understand
the place of the language question, I shall begin by focusing more specifically
on the place occupied by “linguistic minority”; thereafter, I shall come to the
place occupied by “language”. In that regard it is important to keep in mind two
elements that I have mentioned several times before in this book:
1. The systematic use of the triptych qualifying minorities – “ethnic, religious,
and linguistic”. Indeed, from the very beginning, these three qualifiers have
been omnipresent in discussions about minorities. Their systematic presence
can be seen as primarily anchored in the international mechanisms emerg-
ing from the period of collaboration, and also from the League of Nations.
The historical developments that I discussed in Chapter 2 also irrevocably
implicated the presence of these three specifications, including the linguistic
dimension. They can also be considered as the most obvious characteristics of
minorities, giving them a kind of automatic quality that was rarely questioned
and was anchored in a historic as well as an institutional continuity.
2. The absence of a definition of minorities, and the above qualifiers as the
remedy to this. In the delineation of minorities – by means of definitions or
research that categorized the problems relevant to their protection – the iden-
tification of what is meant by minority took precedence over what is meant
by linguistic minority. In the absence of a definition, however, the precision
given to the term “minority”, through these qualifiers, identified its field of
meaning. Consequently, other minorities, presenting other characteristics,
were excluded from the field of investigation.
The elaboration of the Declaration 241

These two components were at work during all the decisional processes relevant
to the construction of international instruments. They also gave rise to a partic-
ular context of appraisal of the debates on linguistic minorities and evidently
resulted in the development of a discourse that basically minimized the problem
of the question of language.
Indeed, one of the first things we notice about the discursive construction of
linguistic minorities in the context of the Declaration, is the absence of debate.
It is as if this notion were transparent and obvious. As an illustration of this, we
need only mention some of the problems raised with regard to ethnic minorities.
These were the subject of debate because it was necessary above all to know
what was incorporated by the qualifier “ethnic” in the context of the Declaration.
Some speakers identified this term with the notion of race and therefore asso-
ciated themselves with earlier debates existing in other texts, like the one about
non-distinction with regard to race, sex, religion, etc. For others, ethnicity was
intrinsically linked to culture. As far as religion is concerned, the subject was
raised and discussed according to what was considered as religion (instituted
system, sect, etc.?). Finally, the question of national minorities, as we have seen,
was the subject of constant debate – in which different interpretations continue to
this day (cf. in this regard, Valentine 2004). In fact, these qualifiers are still being
debated because they pose the problem of definition. The absence of discussion
about the qualifier “linguistic” tends to demonstrate that it is not ambiguous,
that it somehow speaks for itself. In fact, there was no debate about it, in the
context of either the Covenant or the Universal Declaration, or in the discussions
about the Declaration on minority rights. Language may thus be considered as
one of the few non-problematic criteria in the logic of the United Nations.
The non-problematic qualifier “linguistic” was also connected to another
institutional necessity: the search for objective criteria regarding the produc-
tion of knowledge and rights. Debates only occurred when there was a problem
about objective criteria. The general tendency was to efface all “subjectivity”
by submitting ambiguous notions (for example, the qualifier “ethnic”) to an
unequivocal semantic acceptation. The absence of debate about linguistic mi-
norities and their treatment evidently demonstrates that the linguistic dimension
is an inherently objective criterion, not open to discussion.
There is, however, a paradox inherent in the presence of linguistic minorities,
among the other two, in the Declaration. While their presence, in fact, could
be considered as an effective recognition of their existence, it also inferred
the exclusion of other minorities that could have been protected. We could,
for example, think of sexual minorities (based on sexual orientation), which
could have also been incorporated in the instrument. By this I mean that, while
explicit discursive mention does include, by the same token it also excludes
242 Institutional continuity, the management of paradoxes and state consensus

other marginalized groups. Once again, there is room to mention the question
of definition and the usefulness of the restrictions attached to the term “minority”
by means of its qualifiers.
Linguistic minorities, therefore, are well presented – and even omnipresent –
in all the attempts at a definition, in all the studies on the protection of minorities,
in Article 27 and, consequently, in the Declaration on the Rights of Persons
Belonging to Minorities. Their presence, moreover, allows a specification of
the term “minority”. As part of the consequences of the absence of a definition
of “minority”, the absence of a definition of “linguistic minority” results in
the ambiguity of the first absence being shifted onto the second. Furthermore,
the discursive possibilities of absence (alternating between a greater freedom
of interpretation in the extension of a field of meaning and an interpretative
possibility in the restriction of the field of meaning) are equally valid for the
idea of “linguistic minorities”.
Therefore, while it may not be possible to know exactly what the United
Nations means by “linguistic”, the fact that this term is treated as if it were
obvious leads one to believe that the minorities in question are closely tied to
the meaning that they assume in the context of the nation-state. Indeed, it is
primarily a question of minorities who are nationals and confined to a given
state. Furthermore, the exclusion of native populations from the Declaration –
the subject of a different mechanism under discussion – helps to give this term the
meaning that the nation-states usually reserve for them, i.e. “historic minorities”.
Having made these observations, I would now like to consider the rights
granted to minorities, by identifying the main principles that govern these rights
in the matter of language. This axis, in effect, no longer concerns the recipients
of rights, as was the case above, but rather the rights accorded to those recipients.
As we have seen, the principles of the right to language use were present in
Article 27, just as they were present in the proposition of the article relevant to
the Universal Declaration. This is yet another constant in the UN procedures.
The constant of language use – use being a means of preserving the charac-
teristics of minorities – signals a conceptual continuity with all the previous
debates. The Declaration, moreover, provides more detailed information about
the nature of linguistic rights, through the specification of the rights it contains.
The important thing here is to focus on the place of language in the final version
of the Declaration.
I have, for this purpose, selected the passages of the Declaration that specif-
ically contain the mention of “language”41 and reproduced them below:
The elaboration of the Declaration 243

(a)
.Reaffirming
. . . . . . . . . . . . . that one of the basic
. . . . . . .aims
. . . . . .of
. . .the
. . . . .United
. . . . . . . .Nations,
. . . . . . . . . as proclaimed in
the Charter, is to promote and encourage respect for human rights and for funda-
mental freedoms for all, without distinction as to race, sex, language or religion,
(b)
Article 2
.§.1. . . . . .Persons
. . . . . . . . .belonging
. . . . . . . . . . . .to
. . .national
. . . . . . . . . .or
. . .ethnic,
. . . . . . . . religious
. . . . . . . . . . .and
. . . . .linguistic
. . . . . . . . . . .minorities
...........
(hereinafter referred to as persons belonging to minorities) have the right to
enjoy their own culture, to profess and practise their own religion, and to use
their own language, in private and in public, freely and without interference or
any form of discrimination.
(c)
Article 4
§2 States
. . . . . . . shall take measures to create favourable conditions to enable persons
belonging to minorities to express their characteristics and to develop their cul-
ture, language, religion, traditions and customs, except where specific practices
are in violation of national law and contrary to international standards.
(d)
Article 4
§3 States
. . . . . . . should take appropriate measures so that, wherever possible, persons
belonging to minorities may have adequate opportunities to learn their mother
tongue or to have instruction in their mother tongue .
(e)
Article 4
§4 .States
. . . . . . should, where appropriate, take measures in the field of education,
in order to encourage knowledge of the history, traditions, language and culture
of the minorities existing within their territory. Persons belonging to minorities
should have adequate opportunities to gain knowledge of the society as a whole.

Different manners of discursively bringing language into the Declaration are


revealed in these extracts. The discursive constructions are differentiated at sev-
eral levels: (1) the object of discourse, (2) the subject addressed by the discourse,
(3) the action stipulated in the discourse and (4) the characteristics of language.
Extract (a), situated in the preamble, mentions language in relation to one of
the basic principles of all UN instruments: the principle of no distinction being
made as to race, sex, religion and language. At the discursive level, I consider
that language here is a distinguishing element of the principle of non-distinction
and thus emphasizes, along with the other qualifiers attached to the principle,
the universal nature of these principles. In fact, the object of discourse is the
244 Institutional continuity, the management of paradoxes and state consensus

promotion and respect of human rights for all. The phrase “without distinction
as to” is a way of stressing “for all” by explicitly stipulating equality in terms of
rights; some examples – the more common ones – of potentially discriminatory
distinctions are used to do so. There is no explicit addressee, apart from the inter-
national community as a whole. At the active level, the participle “reaffirming”
introduces the ideological affiliation of which the Declaration is part. Finally,
language is not the object of any specification. This paragraph of the preamble,
therefore, is above all present to emphasize conceptual continuity; language
is included as part of the automatic resumption of explicit factors relevant to
distinctions connected to human rights. Like the triptych discussed above, lan-
guage has become an integrating and discursively omnipresent element in the
mechanisms of human rights.
The discursive object of the second passage (b) is the enjoyment of rights
by minorities. It is the only Article that mentions language in relation to the
subject being addressed: “persons belonging to linguistic minorities”. Accord-
ingly, the formulation identifies in an active form (“persons . . . have the right
to”) the recipients of the rights as well as the enumeration of the said rights. The
assertion in the active form (“have the right”) emphasizes a principle of rights,
upon which the measures set out in what follows are based. Connected to the
mention of language is the adjective, situated in the same discursive position
in relation to religion and culture. This paragraph is, in fact, very similar to the
one presented in the Covenant, although it is more specific about the question of
non-discrimination. Here, language is one of the rights from which minorities
can benefit.
The three other extracts, (c), (d) and (e), are in Article 4. Their object of
discourse is state obligations regarding the protection of minorities. As I have
already discussed, the formulae of address and verbal constructions that char-
acterize these paragraphs, I shall not return to this here. Although the subject
of the statement here is “States”, these paragraphs tend to specify the minority
rights presented in extract (b).
In extract (c), language is integrated in the measures that allow minorities “to
express their characteristics” as well as allowing them to develop. As we have
seen, language constitutes one of the characteristics of minorities and therefore
has an obvious place in this logic: it is attached to both its expression and devel-
opment. No specification of language is mentioned here. Briefly, this article indi-
cates that the measures of protection must relate to the possibilities of minorities
to express themselves and develop – among other things – their language.
In extract (d), we find a peculiarity with regard to language. Indeed, it is
entirely devoted to the question of linguistic rights, with the main object of
discourse still being measures of protection, and the states still the subject of
The elaboration of the Declaration 245

address concerning the effectuation of these measures. The contents of the mea-
sures, however, deal clearly with language in terms of its learning (“to learn their
mother tongue”) and instruction (“to have instruction in their mother tongue”).
Contrary to the other minority characteristics mentioned in the Declaration (re-
ligion and culture), language is seen as being particularly obvious. This is an
echo of the work of the Sub-Commission and the promulgation of linguistic
rights in the pragmatic approach (cf. Chapter 5). The reasons for this Article’s
presence are not evident here; the reports of the drafting Committee only at-
test that the article was added later at the initiative of some of its members.
Nonetheless, considering the specification of the term “tongue”, given by the
qualifier “mother”, we can hypothesize. This is the only specification of lan-
guage in the whole document. The term “mother tongue” presents, as we know,
a real dilemma. Referring to the various uses of this term in the course of time,
Tabouret-Keller (2004) evokes the ideologies attached to it. She emphasizes the
emergence of this notion in France in the 80s and 90s, and demonstrates how
its use is part of the logic of the revalorization of patrimony. The mention of
“mother tongue” here could therefore correspond to movements seeking to pre-
serve a vanishing patrimony. In support of this argument, one can also mention
the emphasis given in this paragraph to learning and instruction. In fact, these
revivalist movements – in numerous European states and especially in France –
involved the teaching of minority languages at school. School thus became the
field of cultural preservation by means of language. This could, in a way, ex-
plain the absence of such a specification for cultural characteristics; religious
characteristics could not be the object of such measures given the principle of
secularism of certain states. Therefore, while language appears to benefit from
particular protection, this seems to be closely linked to the resurgence of roman-
tic notions about the relations between language and culture. However, it is still
the case that the particular status of language must be considered in terms of its
tenuous formulation (“should take . . . wherever . . . or”), which is probably the
least constraining of all the formulations of state obligations.
The last passage (e), which mentions language, consists of two elements of
discursive inclusion. The first concerns education and the state’s obligation to
“encourage knowledge” of, among other things, the minority language in “the
field of education”. This dimension emphasizes the factor of respect, on the part
of the whole population, for minorities, and the knowledge of minorities – par-
ticularly of language – is part of this. In his commentary on the second part of this
extract, Thornberry (1993) indicates that, through this bias, “ ‘fundamentalist’
minority doctrines of ethnic purity and exclusiveness (ethno-nationalism) are
discouraged in that the exhortation to educate populations about minorities in
the State is correlated with the principle that minorities should have opportuni-
246 Institutional continuity, the management of paradoxes and state consensus

ties to gain knowledge of the wider society” (p. 49). It is thus appropriate here
to emphasize the necessarily bilateral nature of the knowledge of the other.
It is evident, after this overview of the different mentions of language in
the Declaration, that language is one of the characteristics of minorities, as are
religion and culture. Language is subject to the same discursive treatment as the
mention of “linguistic minorities”, i.e. a linearity in the concurrence linguistic-
ethnic-religious; language-culture-religion. Furthermore, the qualifiers corre-
spond to the characteristics: ethnic minorities > culture; religious minorities >
religion; linguistic minorities > language.42 This inter-relation, however, does
not apply to all the qualifiers of the term “minorities”; here, I am talking about
national minorities. All the characteristics may be then considered as applicable,
the mention of “national” having the principal function of making the possible
granting of rights to non-nationals unambiguous.
I would like to conclude, nonetheless, by referring to one of the essential
components of the mention of “language” in the context of the document that is
the object of this chapter, i.e. its formulation in the singular, not in the plural.43
This morphographic marking tends to give an impression of language as a con-
cept and a unitary element. In all the debates recorded so far, the question of
linguistic plurality has never been raised, i.e. the question of the possible exis-
tence of several languages or varieties within a group or individual. It is as if
the minority language had to be controlled in terms of the only criterion pro-
mulgated in nation-states: the criterion of homogeneity. It becomes a question
of believing that minorities, no matter what they are, can only be constructed
on the basis of homogeneity, thus reproducing state ideologies. This for me is a
paradox. The state constructs the existence of minorities as arising from a po-
tential endangering of state homogeneity, while also constructing minorities as
homogenous and thus, indirectly, as effectively representing a danger. Because
language here, like the other characteristics, is considered as an objective and
easily identifiable criterion, it assumes the only form that is conceivable for the
homogenous state. This then results in an imposition of state interests on both
the rights and characteristics of minorities.

3.4. A step forward, but for the Others: the acceptance of the Declaration

I have so far shown how the Declaration emerged institutionally, how its formu-
lation was negotiated according to the inherent paradoxes of such a process and,
finally, I have shown the contents that emerged in the final version, insisting on
the place of language and the relevant ideologies of language. The final docu-
ment written by the drafting Committee was then submitted to the Commission,
The elaboration of the Declaration 247

the Third Commission and finally to the General Assembly. It travelled through
all these institutional passages unchanged, and went as far as receiving a very
strong consensus. This unanimity was the result of a long process, which created
the Declaration in the end, and which had begun at the moment that the United
Nations was created.
An examination of the reports does not in itself reveal the dynamics of the
discussions that occurred in the Working Group; however, it does allow us to
emphasize the convergences and negotiations that resulted in an agreement. The
contents of the document also proved to be non-problematic, given the different
restrictions contained within it. In this short section, I would like to focus on
the reception of this document within the Commission on Human Rights, as
these discussions reveal the general themes that legitimized the existence and
acceptance of such a document.
At the moment of voting, the political situation was in flux. The Cold War
was over and the disagreements between East and West were no longer really on
the agenda. Furthermore, the world was faced with ethnic conflicts in Europe
and Africa. International relations were also constructing new relations of in-
terest; the question of minorities and its related problems effectively concerned
the whole global community, taking into account new alliances and relations of
power.
These new geo-political deals resulted in the emergence of new forms of
justification of the legal recognition of minorities. The state delegates, taking
the floor one after the other, praised the notable progress that the text represents
for minorities. We can see, once again, discursive strategies similar to those seen
in the context of discussions about the Covenant (cf. Chapter 5): speeches on
the perfect harmony between the contents of the Declaration and national con-
stitutions, and also the assertion that no minorities exist in a particular territory.
Nonetheless, we can also see a new strategy of legitimization of the document,
which consisted in acknowledging the importance of the document, not for the
speaker’s own state, but for others. This is illustrated in the following extract:
Mr. PONTICELLI (United States of America) said that while the end of the cold
war and the spread of democracy around the world were welcome events, various
parts of the world were still torn by ethnic unrest, division and hate. In some
countries, the extinction of totalitarianism had been followed by a rekindling of
long-smouldering ethnic and national problems could lead to conflict and even
war.
(E/CN.4/1992/SR.17)
The above mentioned strategy is obvious here. It tends, on the one hand, to
externalize the problem of minorities and, on the other, to point out the global
issue of the danger of conflicts involving minorities. Contrary to what we saw
248 Institutional continuity, the management of paradoxes and state consensus

occurring in the discussions on the Universal Declaration and on the Covenant,


where ideas about how to deal with problems were raised and debated, here we
have a condescending discourse that clearly relegates the question of minorities
to external regions. By means of this strategy, numerous speakers conveyed a
non-implication of their states as far as the inter-state aspect of the issue was
concerned, but fully recognized the importance of the measures at the interna-
tional level. The strategy of detachment and external projection are explicable,
given the events taking place at the time when the Declaration was ratified – the
Balkans conflict and the global strategic problems involved.
Allusions to the Balkans war were frequent, leading speakers to consider
the legitimacy of the instrument in question with regard to the problems in
Yugoslavia, the state which was, moreover, the instigator of the actual draft
of this Declaration (cf. the statements by the Dutch representative during this
session of the Commission).
Once again, there was a consensus on the minority issue here, but this time
it involved an international debate. The period of globalization was indeed be-
ginning; this did not, however, imply the disappearance of “individual” state
interests. On the contrary, the shift towards global preoccupations tended to
leave to one side the internal obligations of states and, consequently, to maintain
a form of power relations. This materialized in an increasing opposition be-
tween those that had problems and those that did not; between states that ought
to be concerned about the Declaration and those for whom the Declaration was
merely a reiteration of their own practices.
These elegiac and detached discourses, typical of the continuing ambiva-
lence towards minorities, effectively reflect the status quo with regard to the
treatment of minorities within the United Nations. The Declaration became the
new standard of measures of protection; accordingly, the constraints it contained
became significant for subsequent procedures. It remains, nonetheless – in spite
of attempts to limit rights – that the Declaration implied, at the institutional level,
new conditions of possibility for the treatment of the aspects discussed and for
the pursuit of legal investigations. This is what I shall discuss in the last section.

4. The Declaration and new possibilities for the protection


of minorities: the Working Group

In terms of United Nations logic, the Declaration is above all a symbolic doc-
ument, without enforceable conditions, which mainly contains elements based
on intentions rather than on particular observations of rights. It thus was not the
same as a Committee that could enforce principles.
The Declaration and new possibilities for the protection of minorities 249

The existence of the Declaration, however, allowed the creation of a new


space (cf. Chapter 2), subordinate to the Sub-Commission. This new space,
closely linked to the Declaration on the Rights of Persons Belonging to Mi-
norities, constituted a new way of thinking about the protection of minorities. It
also has numerous features that permit an understanding of the continuities and
ruptures, and a glimpse of the future directions being envisaged by the United
Nations with regard to the establishment of mechanisms concerning minorities.
The Working Group, and the discourses emanating from it, allows us to realize
the implications of the Declaration, while also revealing the premises of a new
discursive event.

4.1. General context of the Working Group’s procedure

As I emphasized in chapter 2, the Working Group on Minorities is, above all, a


space of consultation that is devoted to the examination of three issues connected
to the Declaration:
1. the examination, promotion and respect of rights, in practical terms, of the
Declaration on the Rights of Persons Belonging to National, Ethnic, Religious
and Linguistic Minorities;
2. the examination of possible solutions to minority problems;
3. the formulations of recommendations relevant to new measures of the pro-
motion and protection of the rights of persons belonging to national, ethnic,
religious and linguistic minorities.
During its first meetings, the Working Group – as an organ of consultation –
attempted to construct different forms of knowledge about minorities, which
was considered by the members as a necessary condition for the pursuit of
investigation. In order to accomplish this, the Group was involved with scientists,
NGOs and governments. The Group initiated various undertakings: the creation
of expert reports on different subjects (citizenship, education, migrant workers,
etc.), the organization of colloquia, and the writing of recommendations and
commentaries on articles of the Declaration. For the purposes of this study, I
shall focus on the treatment of two aspects of the minority question which I
believe, represent most effectively the work of the Group over the years.

4.2. The catalog of particular situations as the production of knowledge and


institutional action

The Working Group’s first step was to establish a catalog of particular situations
involving minorities. The function of this catalog, essentially, was to record
250 Institutional continuity, the management of paradoxes and state consensus

these problems as well as the particular solutions that had been brought to bear
on the question. In fact, this step highlights the desire for “concreteness”, then
considered as the key to possibilities of protection. We should understand that, up
until this time, discourses on minorities had mainly remained at the conceptual
stage, and that particular situations had only been used for political purposes.
The Working Group insisted upon the search for a constructive solution, founded
on established facts:
34. Mr. Ali Khan, Mr. Bengoa, Mr. Chernichenko and Mr. Khalil pointed out that,
in accordance with its mandate, concrete information on situations involving
minorities should be submitted to the Working Group, to be referred to as
a basis for dialogue on possible solutions to problems involving minorities.
Such information could be provided in an objective rather than an accusatory
manner, and it was the Chairman’s purview to decide what information would
be admissible.
(E/ CN.4/Sub.2/1996/2)
As we can see, the three expert members of the Group insisted that the informa-
tion should in no way be presented in an accusatory manner so that its principal
purpose would be to allow “dialog” to occur. This is an important specification.
Indeed, the Working Group is not an organ of control, and does not have the power
to express any judgments; at most, it can make recommendations. The Group,
therefore, was not the legal guarantor of the Declaration, but rather encouraged
dialog on the protection of minorities, in accordance with the Declaration. The
production of archival knowledge (see Chapter 2) about the problems, therefore,
sought to resolve them through negotiation and recommendations, rather than
through condemnation.
Logically subsequent to the production of knowledge, the Group elicited
three types of information. Firstly, it requested states to provide it with infor-
mation on current legislation within their territories regarding the protection of
minorities. Secondly, the Working Group invited NGOs to share their observa-
tions and to attend the Group’s sessions. Thirdly, the Group requested that other
UN organs communicate their ways of approaching and dealing with the issue.
These three areas of information became part of the most thorough research on
the situation of minorities. It was anchored both in concrete elements and on
the search for effective protection by means of dialog.
All this information, directed towards dialog and explicitly connected with
various articles in the Declaration,44 then induced three different consequences,
manifested in discourse. The first was the justification of state practices by
their representatives; the second was the demonstration of the difficulty of a
recounting of facts with no recourse to remedy; the third was the legitimization
of practices that were already effective within the institution.
The Declaration and new possibilities for the protection of minorities 251

The three following extracts form the 1999 report45 of the Working Group
exemplify the twofold process of categorizing the “facts”:
26. The observer for Iraq noted that a number of constitutional provisions pro-
tected minorities and made specific reference to law 35 governing the region
of Iraqi Kurdistan and to a law relating to the protection of the cultural rights
of minorities. The Syrian and Christian minorities had the right to profess and
practise their religions. The observer for the Russian Federation stated that
the law on national and cultural autonomy guaranteed the rights of national
minorities in his country, within the context of national self-determination.
(E/CN.4/Sub.2/1999/21)

27. Observers representing minority groups described many situations in which


the existence and identity of the minority concerned were allegedly not ade-
quately protected. These included the Batwa, Bagogwe, Bayambo and Albino
minorities in Rwanda (African Indigenous and Minority Peoples Organiza-
tion); the Crimean Tatars in Ukraine as the State programme assisting their
return and resettlement was being reduced (Mejlis of the Crimean Tatar Peo-
ple); the Kurdish minority in Iraq, the Islamic Republic of Iran, the Syrian
Arab Republic, Turkey and the former Soviet Union whose cultural and his-
torical identity was being destroyed (Human Rights Alliance); the Turkish
Muslim minority in Greece (Association of Western Thrace Minority Gradu-
ates); the Macedonian minority in Bulgaria and Greece whose existence was
systematically denied (Macedonian Human Rights Movement in Greece and
the Macedonian Human Rights Movement of Canada); the Lhotshampa mi-
nority in Bhutan who were forced to flee to refugee camps in Nepal and India
(Centre for the Protection of Minorities and Against Racism and Discrimina-
tion in Bhutan); the Arab minority in Israel whose members were driven from
their homes as part of the Israeli policy of expanding Jewish towns (Adalah –
Legal Center for Arab Minority Rights in Israel); the Dalits in India where
the Government had failed to implement the laws preventing discrimination
and social exclusion of the Dalit people (Vedika National Campaign on Dalit
Human Rights).
(E/CN.4/Sub.2/1999/21)

The first extract illustrates the justification of national legislation. The Iraqi
observer speaks of the existence of dispositions with regard to the Kurds, and
the Russian observer highlights the law on national minorities within his state.
The report thus records and registers these statements, without comment. The
information given here is thus part of the logic of a production of knowledge
that seeks to report, not condemn.
The second extract illustrates the enumeration of problems, summarizing
the interventions of observers from NGOs. The way in which these statements
252 Institutional continuity, the management of paradoxes and state consensus

are synthesized in the report gives the impression that the information was
juxtaposed in a factual and parataxic manner.
Finally, the extract below illustrates the third type of information, gathered
from UN institutions.
The observer for the United Nations Children’s Fund (UNICEF) represented the
UNICEF regional office for Central and Eastern Europe, the Commonwealth of
Independent States and the Baltic States. In all those countries, UNICEF ac-
tively promoted the Convention on the Rights of the Child, its implementation
through legislation and specific programmes, and public awareness of the Con-
vention through schools and the media. Specific reference was made to activities
to assess the situation of children of the Roma minority in public care aiming at
improving the type and quality of care, promoting early childhood development
through parent education, and ensuring that the juvenile justice system affecting
Roma children in particular conformed to the Convention on the Rights of the
Child. Additional activities included studies on children and families of ethnic
minorities, and the strengthening of cooperation in the area of tolerance education
projects.
(E/CN.4/Sub.2/1999/21)

Here, once again, it is a matter of conveying factual and precise data that le-
gitimize the work of the UN regarding the protection of minorities, while also
allowing for a kind of co-ordination of existing practices.
The question of language46 necessarily appeared in the context of discussion
under this particular angle. Following the established logic, language was in-
cluded in the three movements described above: (1) exposition and justification
of state practices; (2) demonstration of non-observance of rights in the matter
of language; and (3) measures taken by the UN agencies in the matter. Gener-
ally, the states put forward constitutional dispositions that guarantee the rights
of existence to linguistic minorities and/or those that protect the right to learn
the language. Among the speeches that highlight the non-observance of these
rights, we find above all those of NGOs that reveal the constitutional failures of
certain countries and the presence of discrimination based on language.47
The gathering of information and the Working Group as a tribunal in this
regard, allowed for the expression of problems as well as of the limitations inher-
ent in a fundamentally non-compelling document. These comments – essentially
emanating from NGOs or state observers concerning other states – constituted
a discursive platform, preventing silence and negation.
These observations are dependent on institutional constraints and the func-
tioning of the Working Group, which is not in a position to propose resolutions
or concrete measures in response to the infractions described. Accordingly, the
conclusions and recommendations of the Group generally concern the acknowl-
The Declaration and new possibilities for the protection of minorities 253

edgement of the existence of difficulties, as well as the importance of state


contributions to progress in understanding and the protection of minorities.

4.3. The adoption of new measures: a future Convention?

While the Working Group is, through its archival work, a place for discussion, the
expression of problems and the legitimization of existing practices, its scope for
action is severely limited. Aware of these limitations, the members of the Group
are seeking the institutional means to make the Declaration more compelling
in character. Institutional logic provides for the possibility of associating an
instrument of compulsion, a Convention, with the Declaration. This would have
as a corollary the establishment of measures of control, allowing the lodging
and examination of complaints.
As early as 1996, some observers were considering this possibility:
The observer for the former Yugoslav Republic of Macedonia suggested that
the establishment of a monitoring mechanism for the effective realization of the
Declaration, of which the Working Group could be an integral component, would
be of major assistance to Governments and would allow for an exchange of views
on issues pertaining to minorities. With a view to upgrading this mechanism,
however, the observer considered it necessary to embark on the elaboration of
a draft convention on the rights of national or ethnic, religious and linguistic
minorities.
(E/CN.4/Sub.2/1996/2)

This proposal, made during the first session of the Working Group, was included
in a series of discussions on the possible means of ensuring that the rights stated
in the Declaration would be observed and respected. Mention is made here of
reasons for “upgrading”, but it is, above all, a question of pragmatism. At the
legal and institutional level, any kind of mechanism is extremely limited without
a convention.
The observer’s proposition did not immediately receive much support. The
Working Group was trying, above all, to conduct its work according to the man-
date it had been given: it sought to establish methods of working and to establish
its presence, in the first instance, as a new discursive space. Accordingly, the
question of a convention was not on the agenda. The members of the Group
believed that, before embarking on such a project, it was necessary to first of all
gather and record as much knowledge as possible on the issue, in order to give
such a mechanism real credibility. The idea of a convention, therefore, was not
rejected; it was just too early to consider it. Furthermore, the logic of receiving
and recording information led the Working Group to attempt to make the other
254 Institutional continuity, the management of paradoxes and state consensus

UN organs as aware as possible of the minority issue, and to incorporate in its


process of investigation various committees concerned with human rights and
the principles of the Declaration.
After several years, therefore, the question of a Convention gained signifi-
cance and, for particular reasons, was then put on the Working Group’s agenda.
The first of these reasons was the acknowledgement of mechanisms for the pro-
tection of minorities, which were not part of the United Nations. In this regard,
we can mention the European Union’s Convention-CADRE on national minori-
ties, or the Charter on Regional and Minority Languages. Several observers put
these instruments forward as being able to serve as a basis for the drafting of a
Convention. Another reason was the growing consciousness of the limitations of
the Working Group, which could only make recommendations without being in
a position to ensure their application in the establishment of effective measures.
While the possibility of a Convention was raised, there was some skepticism in
the discussions of the Group, as the following extracts demonstrate:
The Working Group discussed at some length the proposal by Mr. Kartashkin that
it should begin on a definition of the concept of “minority” which, rather than
being all-encompassing and covering all criteria and characteristics, should be
concise and acceptable to all States. This, he suggested, should be the first step
towards the development of a worldwide convention on the protection of persons
belonging to minorities.
The opinions on this subject were divided, both among the members and the
observers. It was argued that there was little prospect of arriving at a definition,
taking into account that it had been possible neither at the global nor at the regional
level for the last 50 years. Leaving the question of definition aside, the possibility
of drafting a convention could still be explored. Even though it was likely to be a
long process, members of the Working Group, together with scholars in the field,
might want to start informally drafting a possible text. One important purpose of
preparing a convention was to create hard rather than soft law and, in particular,
to have a more effective international mechanism for monitoring and responding
to complaints. Whether such a mechanism would have greater powers than the
Working Group would depend on the provisions of the convention. The Working
Group consequently did not take any decision on this issue, but decided to pursue
the matter further at its sixth session and to invite comments on the advisability
of starting to draft a possible convention.
(E/CN.4/Sub.2/1999/21)
The question of a possible Convention was thus definitely raised, introduced
by one of the Working Group members. The suggestion was linked to the re-
surfacing question of a definition.48 Although the formulation of a definition was
clearly rejected, the proposition of the construction of a Convention appeared
as a possible process in the pursuit of the Group’s investigations. This did not
The Declaration and new possibilities for the protection of minorities 255

mean, however, that definitive and official decisions on this matter would cease.
Furthermore, the Working Group envisaged opening this idea to commentary.
The Working Group’s cautiousness was linked to several things. The first,
expressed in the extract above, relates to the basic question of whether a con-
vention of this kind would have more weight than the work being carried out
by the Group. This remark, in fact, indicates some ambivalence on the part of
the members towards their work. They knew and had experienced the minimal
institutional impact of their undertakings but, at the same time, were convinced
that dialog was the solution to the problems. The introduction of a Convention
would, in a way, contradict this approach, in that it would become coercive.
The second element of cautiousness and skepticism was linked to the general
institutional context of debate. The Commission on Human Rights was, at this
time, undertaking a restructuring of its agents, especially the Sub-Commission.
This was proving extremely costly and there was a tendency towards making
its mandate less heavy, by eliminating the question of minority protection. The
establishment of a Convention would involve further increases in costs and
demands on time. The Working Group, aware of this institutional context, was
also being subjected to some re-structuring, during which it would be difficult to
envisage the integration of an enterprise that would take as long as the elaboration
of a Convention.
Nonetheless, the idea of the Convention was not entirely forgotten: the
subject re-emerged over the years. The idea was then submitted to the Sub-
Commission with the mandate of recommending consultation with governments
and NGOs:
The Working Group recommends that the Sub-Commission recommend that the
Commission request Governments and intergovernmental and nongovernmental
organizations to submit their views on the desirability or otherwise of the drafting
of a convention on the rights of persons belonging to minorities, taking into
account regional conventions on the subject, and also to give their views on the
content of such a convention.
(E/CN.4/Sub.2/2000/27)
Today, the project of the Convention has still not been realized, and the infor-
mation requested is slow in coming. The Commission is not really inclined to
conceive of a Convention that would necessitate additional institutional struc-
tures, and the relative expenditure would impede the whole process.The Working
Group is currently directing its efforts in other directions, principally on the cre-
ation of a supplementary protocol that would be associated with the Covenant on
Civil and Political Rights. This solution would have the advantage of incorporat-
ing the lodging of complaints with the Human Rights Committee, responsible
for ensuring the observance of the above Covenant. This approach, moreover,
256 Institutional continuity, the management of paradoxes and state consensus

would also maintain the Working Group in its capacity as observer as long as
the Declaration remains in effect.
The final reference to what could potentially be the new discursive event can
be seen in the 2004 report of the Working Group:
Recommends the preparation of a working paper by a member of the Sub-Com-
mission on the advisability of drafting an additional protocol to the International
Covenant on Civil and Political Rights containing remedies for violations of
minority rights to be presented to the Sub-Commission at its fifty-eighth session;
(E/CN.4/Sub.2/2004/L.23)

The examination of the work of the Working Group has allowed us to reveal
the logical continuity of the discourses on minorities (justification of existing
practices, denunciation of problems), as well as the praxeological continuity
consisting of acting and promoting protective measures though discourse. Fur-
thermore, the examination of possible future mechanisms highlights the neces-
sity of proceeding in legal terms and compelling recognition of these rights,
as well as, however, the delays and institutional and political limitations in the
matter. The future will tell us whether the institution pursues this journey, and
how the protection of minorities will evolve in the course of time.

5. Conclusion

This chapter has demonstrated the limitations and possibilities that have marked
the history of the latest discursive event. The institution fundamentally keeps
to its course, ideological continuity: it is affiliated with previous mechanisms,
which both provide the conceptual context of all the mechanisms and maintain
institutional coherence.
The general view of minorities has not changed, nor have the discursive
strategies presiding over the drafting of rights pertaining to minorities. On the
other hand, the degree of concern that they elicit has diminished, and the ap-
peasement provided by the conditions of possibility of Article 27 materialized
in the elaboration of the Declaration. In a way, the constriction of the rights
of minorities can be seen throughout the discursive events: while their rights
were specified, they have nonetheless remained within the framework of state
interests. The voices of minorities have been fundamentally absent, as the NGOs
were not invited to participate in the discussions of the drafting Committee. In
fact, it was as if this document was primarily a gauge of morality, essentially
protecting the states and appeasing their fears.
Conclusion 257

The world order, however, is in flux. Geo-political fears are no longer part of
an opposition between internal and external security. The widening of frontiers
and geo-political alliances for economic and strategic purposes have led to an
interest in the question of minorities beyond the confines of a particular state, in
that what happens outside the state has an impact within the state (immigration,
for example). The geographic proximity of the Balkans and the conflicts faced
by these populations have increased the awareness of western states, leading to
a specification of rights which, for others, could be prophylactic.
If there are changes, therefore, I tend to consider that they are above all to
be found in a homogenization of the perception of minority protection. The
disagreements of the past (between assimilation and recognition) are no longer
present. Everything tends to suggest that the emancipation of minorities is an
essential element in the system of protection. This emancipation, however, is
fundamentally restricted and bound by the limitations imposed by the states
on mechanisms and institutional structures. The emancipation is, in a way, ac-
knowledged, but fears about minorities persist.
It is within this general context that the more specific question of linguistic
minorities should be understood, i.e. through the prism and primacy of minorities
in general. Linguistic minorities no doubt have a place within this mechanism.
This is because, however, they constitute a potential danger, as their claims could
provoke conflict. In the granting of linguistic rights, therefore, a recognition of
difference can be observed. It must be admitted, however, that the ideologies
of language are also anchored in state ideologies, permitting a parallel between
state and minority homogeneity. In spite of the strides made in discussions,
it appears that the only possibility of conceiving of diversity is by confining
its components to a unitary trace, which is probably more easily managed and
demarcated. This gives us a glimpse of a possible resurgence of the essentialist
view of language and culture.
To conclude on a “moderately” positive note, and taking into account all the
reservations expressed in section 4, the Working Group can be seen as a solid
form of hope. There is no doubt that it is entirely dependent on institutional
power relations, and limited in its mandate, which prevents it from detaching
itself from the dominant ideology. It does, however, constitute an institutional
step forward. The Working Group allows the expression of grievances, and its
presence causes states to demonstrate the efforts that they agreed to make. Of
course, this is not enough, and the fundamental, social problems raised by the
question of minorities can only be partially embraced. In spite of everything,
however, the Working Group prevents the discourse on minorities from disap-
pearing completely among the bureaucratic meanderings of the institution.
Chapter 7
Conclusion

This work as a whole has sought to reveal the extreme complexity of the question
of the protection of minorities in general, and linguistic minorities in particular.
I have attempted to demonstrate how minority protection is part of a set of
discourses determined by state and institutional ideologies, which co-exist and
feed into one another. The historical dimension of the study has revealed the
continuities and impasses of these ideologies in the development of the United
Nations and international relations.
As the end of this work approaches, I would to like to present some key
findings to the research questions. These also should invite us to consider how
the discourses we have examined elucidate current discourses on the protection
of minorities and languages.
The existence of minorities should be understood, as I have shown, in direct
relation to the creation of the nation-states and the emergence of nationalism.
The constant quest for homogeneity as the guarantee of a nation’s power and
smooth functioning infers the creation of minority groups with characteristics
different from the ones that make the nation one entity.
The emergence of international institutions following the First World War was
concomitant with world disorder and therefore sought to establish world order,
which would allow the stabilization of international relations and the prevention
of conflict. The question of minorities and their protection then arose explicitly
and necessarily within this international context: the territorial rearrangements
subsequent to the Treaty of Versailles altered borders, and the regrouping of pop-
ulations gave rise to a new kind of heterogeneity within the states. The necessity
of protecting minorities led to the creation of bilateral treaties, in the League
of Nations, by means of which some states requested others to protect their mi-
norities. On the other hand, decisions in the matter of minority protection were
also the result of the following premise: minorities are potentially dangerous, as
they are capable of threatening state security and causing inter-state conflicts.
At this time, minorities were seen – at the international level – as problematic:
the evocation of their existence was dependent upon the dominant power and its
processes of homogenization.
The failure of the League of Nations, with the outbreak of the Second World
War, did not lead to the abandonment of the idea of a supra-national agency
that could act in order to maintain peace and security. At the end of the Second
World War, the quest for a universal structure, which would bring together all
Conclusion 259

states of the “free world” wishing to promote democracy, progressively took


shape, resulting in the United Nations. The United Nations was instituted both
in rupture and continuity with the League of Nations, and was intended to
construct a network of global alliances. Initiated by the great powers of the
West, the United Nations did not in any way intend to break away from the
concept of the nation-state. In fact, it could even be said that the United Nations
was the product of nation-states, and would inspire a generalization of nation-
states all over the world. From its inception, the United Nations sought not only
to establish political order but also to promote ethical and moral principles,
mainly by means of human rights. It was constructed from various hierarchical
spaces, and power was concentrated in political spheres at the service of the
most powerful states.
This is the general context in which the question of minority protection
emerged. The question immediately became the object of debate and diver-
gence of opinion. It became an area of discursive contention, in that it provoked
disagreements about the role of the state. The question of minorities had a place
in the United Nations (just as it did in the League of Nations) because, after
the Second World War, minorities continued to constitute a danger. The War
was, indeed, the arena of bloody conflicts in which minorities were the victims
of racist and fascist theories through ethnic and racial purges; they had also,
however, been used for the purposes of territorial expansion. It would there-
fore be difficult to imagine that such a crucial question could be excluded from
the United Nations’ field of expertise – especially as the new arrangements of
territories and frontiers led to the creation of new minority groups within nation-
states. With some ambivalence, the United Nations then chose to designate a
particular discursive space in which the various issues of minority protection
could be investigated. Subordinate to the political organs of human rights, this
space of expertise became an institutionally legitimate place, guaranteeing the
recognition of minorities.
While minorities were well represented structurally, their place remained
conceptually problematic. Their inclusion in the construction of a legal and
symbolic framework was the subject of political contention. While for most of
the great powers, the minority question was resolved by the establishment of
resolutions relating to universal human rights, other states, on the contrary, de-
manded that minorities be explicitly recognized and mentioned in the Universal
Declaration of Human Rights, the founding document of the institution’s univer-
sal ideologies. The ensuing arguments, although effectively seeking to resolve
the question of minorities, were nonetheless totally dependent on the particular
vision of each state representative.
260 Conclusion

For any nation-state, in fact, the fear of minorities remained strong, insofar as
they constituted in themselves a threat to the state homogeneity. A willingness
to protect them involved recognizing their existence and therefore taking the
risk that this recognition could be used for political purposes, and to pit one
state against another. On the other hand, for the socialist states, recognition
of minorities was necessary in order to maintain an inter-nationalist ideology
and to avoid the risk of secession. The refusal to include a specific mention of
minorities in the guiding document relating to human rights resulted in a power
play that favored the capitalist states. They justified the absence by arguments
based on the intrinsic nature of the Declaration itself and its direct application to
minorities. However, here too, as we have seen, such arguments – as considered
as they might have been – can be explained by other reasons, involving the quest
for homogeneity by means of the assimilation of different population groups.
The socialist states’ militancy for the inclusion of minorities in the Declaration
was based on their conception of the state and an attempt to situate the discussion
in a criticism of capitalism.
The debate on the protection of minorities at that time, in fact, consisted of
several elements. The first was the predominance of the nation-states and their
fears regarding minorities. The second arose from the impossibility of thinking
about minorities in a universal manner. This period did not seek to deny the
existence of minorities, but rather to see the Universal Declaration of Human
Rights as the solution to the minority problem, thus allowing nation-states to
be protected from minorities while also justifying their protection – but without
mentioning them The fundamentally national dimension of the United Nations
and its consequences for discourse and action in the matter of minority protection
are essential data for an understanding of the functioning of the institution, as
well as of the issues of minority protection during this initial stage.
Subsequent investigations of discourses on minority protection highlighted
the emergence of new possibilities for the United Nations. Without yet rejecting
the inclusion of minority protection in the context of human rights, the insti-
tution considered it possible to formulate rights concerning minorities. As I
have shown, with Article 27, it was above all the renunciation of universality
and the concern of some states that made this mention possible. The principle
of self-determination was clearly stated in the Covenant and the risk of mi-
norities claiming these rights was envisaged. The evocation of minority rights
was followed by a form of exclusion of their prerogative for self-determination.
Furthermore, the mention of minorities was strategic, in that the formulation it
assumed testified to real ambivalence and to the presence of restrictions relating
to the creation of new minorities. Here, once again, discourses remained diver-
gent: they were still anchored in the problem of nationalism and demonstrated
Conclusion 261

the actual fears of states in the face of their own minorities. This period was also
marked by the emergence of new states with the rank of nation-states, mainly
resulting from the process of decolonization and endorsing the nationalist view
of minorities. Minority rights did not deviate from the logic that created the
problem, and the impossibility of thinking about minorities in any other way
highlighted the dictates of ideological restraints.
Finally, with the advent of the Declaration on Rights of Persons belonging
to Minorities, the conflicts between states were not as severe as before and with
good reason. The nation-state had become the quasi-world norm, and the pro-
tection of minorities thus became homogenous. Certainly, minority rights were
specified and increased, but the dominant ideology and the fears of minorities
persisted. The history of this document reveals how difficult it was to know
exactly what was meant by a “minority”, thus demonstrating that the identifica-
tion of a field of meaning for this term was more dangerous than effective. The
impossibility of defining the term was again based on the dimension of national
particularity, which could not fix a field of meaning that would be valid for all. If
there is no definition, it is not because a definition was conceptually impossible,
but rather because it involved political issues that were fundamentally irrecon-
cilable with state interests. The instrument, therefore, could only be consensual,
and could not prevent real debate. When this instrument finally appeared, the
era of globalization was emerging but, with it, state concerns remained and even
became more set in place.
All the discourses on language and linguistic minorities should be seen in
the inter-nationalist context presented above. If the presence of language can
be ascertained, it is because it is part of the characteristics that contribute to the
way that the state carries out a quest for homogenization within its borders. Lan-
guage is continually present because discriminations are made on this basis and
because language and diversity present the states with a problem at ideological,
organizational and political levels.
For these reasons, discourses on language are always subordinate to dis-
courses on minorities. Language is constructed as a “variable” and is included
in the ideologies that give rise to the existence of minorities. Discourses on lan-
guage are based on principles of territoriality. Language, moreover, constitutes
an objective criterion that is easy to identify. Language, inasmuch as it is observ-
able and variable, is considered as a non-problematic given, in the sense that there
is no need to question it – it is evident. Discourses on language and linguistic
minorities are not situated at the level of prac