Ideologies across Nations: The Construction of Linguistic Minorities at the United Nations (Language, Power and Social Process)

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 Ducheˆne

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 앪 of the ANSI to ensure permanence and durability.

Library of Congress Cataloging-in-Publication Data Ducheˆne, Alexandre. Ideologies across nations: the construction of linguistic minorities at the United Nations / by Alexandre Ducheˆne. 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 photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher. Cover design: Christopher Schneider. Printed in Germany.

Acknowledgements This book is the achievement of a complex journey that led me to various individuals who contributed to it in various ways. Georges L¨udi was the first to see the relevance and potential of this project. He strongly supported this work institutionally 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 Neuchˆatel, 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 Introduction Chapter 1 The protection of linguistic minorities as a field of inquiry 1. The protection of linguistic minorities: research direction 1.1. A sociology of objectifying language: language as the object of protection 1.2. “Critical” sociolinguistics: a protection for whom, why, and with what interests? 1.2.1. Language between practices and politics 1.2.2. Minorities and the state: a complex relationship 1.2.3. Towards a critical and historically situated sociolinguistics of minority protection 1.3. Why study linguistic minorities within the United Nations? 1.3.1. An international institution 1.3.2. The United Nations: a unique terrain of its kind 1.3.3. The United Nations: a central object of investigation 2. Conceptual framework 2.1. Production of knowledge 2.2. Ideologies 2.3. Discourse 2.4. The historicity of discourses, ideologies and the production of knowledge 3. Collection of data and analytical frame 3.1. An immersion in UNO and an apprehension of the field 3.1.1. A critical look at the institution 3.1.2. An in vivo vision of UNO debates 3.2. Documentary research: the process of collecting historiographic data 3.2.1. Collection of data by trial and error 3.2.2. A systematic collection of data 3.2.3. Collection of data and making the object of study precise 3.2.4. Synthesis of this section 3.3. Framework of analysis 4. Outline

v 1 5 5 6 10 10 13 18 19 19 20 22 23 24 26 28 31 31 31 32 32 33 33 34 36 37 37 40

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Chapter 2 Discursive spaces and the protection of minorities: historical, institutional and ideological conditions of knowledge production 1. Introduction 2. The emergence of international institutions and the international protection of minorities 2.1. From consultation to elaboration: a brief history of international institutions 2.2. The League of Nations: the era of consultation 2.3. Synthesis of the section 3. The United Nations: the emergence of the institution 3.1. Historical premises 3.2. The Conference of San Francisco: institutional architecture and the emergence of human rights 3.2.1. The architectural bases 3.2.2. The filigree of human rights 4. The discursive spaces of the UN and linguistic minorities 4.1. Three discursive spaces, three modes of functioning, three forms of hierarchical relations 4.2. The Commission on Human Rights: a political space 4.2.1. The creation of the Commission on Human Rights 4.2.2. The mandates of the Commission on Human Rights 4.3. The Sub-Commission: a space of expertise 4.3.1. The mandate of the Sub-Commission: its emergence and negotiation 4.3.2. The methods of work of the Sub-Commission 4.4. The Working Group on Minorities: a space of dialog and consultation 5. Conclusion Chapter 3 Production of discourse and institutional constraints: the search for objectivity 1. Introduction 2. From speech to text: the regulation and production of discourses at the United Nations 2.1. Speaking out at the United Nations: some discursive dimensions 2.2. The United Nations and the production of documents 2.2.1. The institutional regulation of discourse: example – the summary record

43 43 45 45 47 54 55 55 57 57 60 61 62 63 63 67 69 69 73 80 85

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2.2.2. The summary record: from desire for objectivity to necessary selection 2.2.3. From directions to writing: discursive “passages” 2.2.4. Synthesis of the section Conclusion

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100 108 116 118

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

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2.1. The search for multi-modal measures of protection: the first steps towards the specification of an article on minority rights 2.1.1. Three discursive strategic positions in the first steps 2.1.2. The establishment of the conditions necessary for formulation, and the conceptual premises 2.2. A strategic article, a reproduction of state interests 2.3. Synthesis of the section An accepted presence, a formulation under discussion: the debates of the Commission 3.1. The conditions of possibility for acceptance 3.2. Three propositions, three conceptions of minorities and their protection 3.2.1. Three propositions 3.2.2. The arguments 3.3. Identifying the “right” proposition: a political decision 3.3.1. The fears: separatism and the creation of new minorities 3.3.2. The proposition by the Sub-Commission as an appeasement of fears 3.4. Synthesis of the section Distance, non-commitment and legitimization: the discussions of the Third Commission 4.1. Acceptance of presence through negation of existence 4.2. Acceptance of the presence as legitimization of national institutions 4.3. Synthesis of the section Conclusion

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

162 163 166 177 179 180 180 182 182 183 186 187 193 194 195 196 199 202 203

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2.2.2. The reception of the report: acceptance of the recommendations, rejection of the definition The elaboration of the Declaration 3.1. Preliminary steps 3.1.1. A source document 3.1.2. A definition of the term “minority” as a necessary condition of formulation? 3.2. The resolution of paradoxes: the conditions of the Declaration’s acceptability 3.2.1. A paradox between the necessary presence of a definition and the impossibility of creating one 3.2.2. A paradox between collective and individual rights 3.2.3. State duties and state interests 3.2.4. Synthesis of the section 3.3. The Declaration: the final document and the place of language 3.3.1. The general structure of the Declaration 3.3.2. Linguistic minorities and language: their discursive inclusion 3.4. A step forward, but for the Others: the acceptance of the Declaration The Declaration and new possibilities for the protection of minorities: the Working Group 4.1. General context of the Working Group’s procedure 4.2. The catalog of particular situations as the production of knowledge and institutional action 4.3. The adoption of new measures: a future Convention? Conclusion

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213 215 216 216 218 229 230 234 236 238 239 239 240 246 248 249 249 253 256

Chapter 7 Conclusion

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Notes References Index

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Introduction Since the rise of the nation-state in the 19th century, issues concerning linguistic 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 production 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 consideration 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 organization, the United Nations, as a power institution producing discourses, knowledge and actions on the protection of linguistic minorities. The book interrogates the institutional structure through a close and innovative examination of the interests and ideologies at stake in the establishment of international regulation 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?

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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 knowledge 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 essentially 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 constraining 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 minorities from 1946 to 2003, the book addresses the question of the historical, insti-

Introduction

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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 vision 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, sociolinguistics emerged in the sixties as a counter-movement to innatist approaches put forward by generativist studies and structuralist approaches seeking to localize 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 language articulate with one another. Different approaches emerged, seeking either to break away from classical linguistics by studying language from the perspective of practices or, on the contrary, to lay claim the existing theoretical 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 diverging, 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 domain. 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 understanding 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

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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 language, 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 functionality 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 language, 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

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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. Language 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 vitality 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. Freeland 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 characteristic 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; SkutnabbKangas 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 nationstate 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 undertaking. These rights movements, similar to those dealing with language planning, 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 communities.This work, which seeks to establish linguistic minorities in a judicial order, is currently making new advances by including linguistic rights from the perspective 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

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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 protected 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. Duchˆene and Heller 2007) and only partially succeed (this is probably not one of their objectives, even though there

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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 international 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 effectively 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-

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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 understanding 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 components. 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 innatist opposition of competence and performance – we have known that language practices do not materialize through a homogenization of form, and that

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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 correlations. Other works in the ethnography of communication (Gumperz 1981a, 1981b; L¨udi 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 L¨udi 1991). Language, therefore, is fragile, fluid, fundamentally heterogeneous and must necessarily pursue the objectives of communication. As researchers working in multilingual sociolinguistic contexts have shown (cf. L¨udi 1992; L¨udi and Py 2003; Matthey and de Pietro 1997), the structures of language are modifiable; they are not immediately “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 speaking national languages. Indeed, for L¨udi (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 importance 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. L¨udi 1990a).The latter approach effectively 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 incapable of revealing (cf. Le Page and Tabouret-Keller 1985; Duchˆene 2000). These

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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 ideological 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 rˆeve 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 reproduction. 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 microcosm, like the couple (Piller 2002) and the family (Desprez 1994; Duchˆene and Rosenbaum 1999; Duchˆene 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 question of which languages, varieties and practices should be protected – and why these and not others – arises. Seen from this angle, the question of the protection 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

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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 nationality. 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-

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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 rightwing 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 Hutton 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 perpetuated 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 utilization 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 concomitant 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 nationstate ideologies that consist of the quest for homogeneity, leading states to qualify as “minorities” those groups that do not meet the dominant criteria. The minorities thus emerge in line with the radicalization of nationalist movements and the territorial changes after the First World War (cf. Hobsbawm 1990).

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For nation-states, the existence of minorities effectively constitutes a challenge to national unity, and they are not inclined to favor linguistic and cultural heterogeneity. The dominant characteristics by which a state defines itself become, then, “the symbolic ground for the construction and legitimization of the nation-state and of its citizens” (Heller 2002a: 179). The state seeks by various 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 sociolinguistics, 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 characteristics. The protectionist discourse that emerges therefore explicitly takes its bearings from the French state’s linguistic and cultural strategies of homogenization. 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

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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 minorities 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 demarcated existence of the social groups trying to gain a kind of independence. The reproduction of nation-state ideologies can also be explained by the hegemony 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 nationstate 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 pursuit 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 alternatives 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

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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 demand 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. Furthermore, 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 forward 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 phenomenon 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 connection 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

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design this protection and be required to adhere to it. The international dimension 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 contrary, 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 social 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 production and distribution of resources” (p. 184). Hence, this approach will consider minorities and language in all the complexity of the networks and social relations 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 perspective 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 ideological 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

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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 (AbiSaab 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 essentially 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,

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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 commendable, 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 condition 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 member 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 acknowledgement 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.

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Another characteristic of the United Nations is its wide range of activities. The United Nations is concerned with all areas of human activity: social, economic, 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 affirmed 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 connected 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 relations: the height of nationalism. The United Nations would witness and contribute to de-colonization; would be the theatre for the confrontations connected with the Cold War; would witness the transformations related to the dismemberment 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

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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 minorities, language and multilingualism – from exclusively national to international spaces, NGO and private foundations (cf. Duchˆene and Heller 2007; Muehlman and Duchˆene 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 Nations 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 dynamics 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 manner 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.

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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

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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 consequences of the production of knowledge, the necessarily ideological component of my reading and the existence of a discourse that is mine and, therefore, essentially 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 intrinsically 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 complies 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’Arch´eologie du savoir [“The Archaeology of Knowledge”], contends that approaching a question of history or even a particular theme should not be considered from the perspective of a linear succession of events alone. On the contrary, the most important

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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 themselves 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 sexualit´e (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 minorities 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 rejection 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 political 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

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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 constructed 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 produced 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 parameters: 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 production 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 intend 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

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moreover, the result of constructions of power relations that also allow the legitimization 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 concerned, the various elements of ideology as it is envisaged in the context of this work: Grunds¨atzlich 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 Außerungen zu manifestieren pflegt. Ideologie liegt also ein Allgemeines zugrunde: sie ergibt sich aus komplexen Diskurspraktiken, die ihrerseits von im Werden begriffenen oder bereits bestehenden Macht-, Herrschafts- und Gewaltstrukturen okonomischer, ¨ politischer oder auch kultureller Natur herr¨uhren. Somit erf¨ullt Ideologie zum einen eine “positive” kittende, zum anderen eine das Bestehende in seinen teils verdeckten, teils offenen Machtverh¨altnissen rechtfertigende Funktion. (Zuckermann 1999: 23) [Basically it may be said that ideology should not be understood as an individualrelated 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, political 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 constitute a kind of kernel of common thinking around which various conceptions of the institution are elaborated, organized and enacted. The collective component

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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 praxeological 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 ideologies 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 different levels: 1) the discursive ideologies that demonstrate beliefs about the nature, 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 ideologies, 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 knowledge 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 conceptualization 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.

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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 approach 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 experience; 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, discourse 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 specificity 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).

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This conception of discourse leads us to bring up another aspect of the discursive 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 fundamental 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 themselves, 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 themselves. 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.

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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 discourses, 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 manifests 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 historical 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 complexity 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 primarily dealt with in the context of spaces dealing with human rights. I then naturally oriented my field of investigation in this direction.

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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 various “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 institution’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 questions that had motivated both the course and the present research. I therefore

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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 became aware of the importance of the power relations, of the hierarchical stratifications, 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 permission 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 (summary records, reports, resolutions, etc.). Most documents from 1993 onwards are also accessible by means of a computer program. Thus, when I was investigating 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

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axis of “linguistic minorities”. I then found myself with a wide array of documents, 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 understand 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 desperately 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 process 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

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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 Commission 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 Commission 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 reformulations) 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, collection 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 accessible 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 institutional 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.

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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 according 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 international 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, resolutions, 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.

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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

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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 institution 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 discourses 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 knowledge 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 discursive spaces, it is necessary to have a knowledge of institutional functioning and, consequently, an ethnographic approach. Furthermore, this identification

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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 drafting process and of institutional constraints (Smith 1999; Duchˆene 2004). The constraints create the conditions of possibility for discourse while also limiting 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 collection 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 dialectic relation. In effect, the spaces of discourse determine the discursive production. 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. Finally, 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 existence 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 sociolinguistics: the debate that opposes macro and micro approaches. Following Heller’s (2001) propositions, what essentially matters is not to seek to oppose

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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 political 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 complexity 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 architecture 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 threefold. 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 institutional 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.

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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 significantly 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 stratification 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 determined 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 institution 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 discursive production that an essentialist approach to language is produced, seeking to give discourse an objectivity and univocity as the essential gauge of its “official” character. The argument that I put forward here deals with the fact that this discursive ideology somehow balances the fundamentally heteroglossic character 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-

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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 interpretations of the universality of human rights. Finally, this chapter demonstrates both a fear with regard to minorities, and a search for the legitimization of existing 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, Religious 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 contents 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 protection 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 underlying 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 institutional 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 architectural 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 predominantly produced in the architectural logic prevailing in the relevant spaces. In this chapter, I will therefore describe and explain the discursive spaces relevant to the production of discourse on linguistic minorities within the United Nations. Minorities are not discussed in all UN areas, but in instituted, structured 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 underlying 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 particular 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 question, not only via historical phenomena but also via the discourses relating to

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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 organizations 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 emergence, 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 increasing 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 demonstrating the interests underlying the structuring of spaces relevant to linguistic minorities. I shall argue that these spaces have the primary function of controlling 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 international 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

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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 human 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 nationstates. 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 collaboration (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).

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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 elaborated constitution of international administrative systems, which allowed the proliferation of multi-national treaties within a framework of regulated international 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 international 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 rearrangements, fundamental rearrangements in that they take a new international order into account. At the same time, this example also illustrates how the international dimension must be understood in terms of the truism of national interests. 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 capacity, 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 international consultation (Mangone 1954), the 20th century is a period of collabora-

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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 difficulties, 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 Latan´e [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

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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 president, to the forefront of the creation of an international discursive space (“a tribune”). 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 suggestions 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.

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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 constituent members, who, upon acceptance of membership, become subject to its governing control . . . it possesses a supreme jurisdiction over all matters international 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 decision 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 history 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 consultation. 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 Nations: 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 developed 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.

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In terms of content, the League would come to deal with the issues of illnesses, arms trafficking, slavery and commerce. Its mission gave rise to an impressive collection of statistical data, the creation of international conferences and the establishment of dependent, specialized organizations, such as the International 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, frequently played with callous ambition or petty covetousness. (Mangone 1954: 153)

In the quest for international security, The League of Nations had to face a number 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, Germany 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 “dissident” states then initiated a series of rapprochements. In 1936, Germany and Italy recognized Franco’s regime in Spain, in opposition to the League of Nations. 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 followed, 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.

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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 measures 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 bilateral) 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 constitutions. 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 nationality, and also establishes systems of regulation permitting the recogni-

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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 institutional mechanism. The initial absence of general mechanisms of protection with regard to minorities 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 regulatory 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

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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 preservation 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 conception 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-

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tally recognized the necessity of establishing functions with a bearing on the control of rights, primarily on the principle of discrimination with regard to minorities, 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 gradually, 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 linguistic 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 structures that were either ineffective (as was the case with international conferences)

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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 l`a aussi de mettre a` la disposition des Etats une organisation universelle combinant comp´etences normatives et op´erationnelles, au service de la paix et

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Discursive spaces and the protection of minorities de la s´ecurit´e internationale. (. . . ) Dans sa philosophie, l’ONU e´ tait l’h´eriti`ere directe de la SDN, mais devait s’en d´emarquer dans sa structure et dans ses pr´erogatives. L`a o`u la SDN avait e´ chou´e, dans sa tˆache de gestion de la s´ecurit´e internationale, l’ONU devait r´eussir, 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 concr´etiser. (Tardy 2000: 692) [It was also a question of making a universal organization, combining normative 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 imperfections 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

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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 encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion” (United Nations Charter)

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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 Assembly, 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 organization. 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, recommendations Human Rights and fundamental freedoms for all”. 4. The Trusteeship Council: its function is to ensure the appropriate administration 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 concerned 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 organization to use its weight in world decisions regarding security. While the League of Nations was anchored more in bilateral and multilateral procedures and was,

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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 contingencies. 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 cr´edibilit´e de la SDN avait pˆati de l’absence des Etats-Unis, de l’adh´esion tardive de l’Union sovi´etique (1934), puis de son exclusion en 1939, et bien sˆur du retrait du Japon et de l’Allemagne en 1935, suivi de l’Italie en 1939. Le dispositif cr´ee´ par la Charte des Nations Unies doit donc conduire ces Etats a` consid´erer que leur int´erˆet est davantage dans leur pr´esence au sein de l’Organisation que dans leur tenue a` l’´ecart. [. . . 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

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3. the principle of collective security that tends in particular to make the member-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 universal 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)

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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 particularly 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 organizational 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 Conference 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 linguistic minorities, appeared. I shall show how the progressive construction of increasingly specialized structures must be understood in relation to the institution’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 protection 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

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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 Commission 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

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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 institutional experts, but also state representatives, NGO representatives and academic experts. The mission of this structure, as such, is to gather information 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 political 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 interwoven 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 functions 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 countries, met at Westminster in London in October 1945: they constituted Committee 3 of the preparatory Commission of the United Nations. More specifically responsible for giving an architectural basis to the Economic and Social Council, 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 commissions 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)

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Supported by Article 68 of the United Nations Charter, the Committee recommended 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 convention 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 diminished 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

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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 destabilization 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 evidence 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, without 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 basis 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 Commission, 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 human 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 demarcates 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-

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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 preparation 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 recommendations 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 Government 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 constraints linked to the possible overlapping of contentious areas, such as the areas of human rights and state prerogatives. The allusion to questions of “implementations” also reveals, in this way, the thorny problem of taking action.

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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 principle 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 possible dissensions and the presence of national issues that could become problematic, 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 solution 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-

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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 religion. 3. The Commission shall make studies and recommendations and provide information 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 recommendations 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 international 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 libert´es 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

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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 Discrimination – Convention on the Rights of the Child – Convention against Torture and Other Cruel, Inhuman or Degrading Treatment 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 following 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 Commission’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 Economic 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 preceding section) to give the United Nations a clear direction in the matter of human

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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 preparation 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 Declaration 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:

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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 FUNCTIONS 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 discriminatory 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-Commission’s mandate, which would be determined by the Commission or by the Economic and Social Council. The formulation of the second point highlights the Sub-Commission’s subordination, but also its mission of service. The members of the Sub-Commission are not state representatives, but independent and

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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 SubCommission, 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 Subcommission, 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 clarification 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;

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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 Commission 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 matter 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 “minorities” 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 applicable 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 methods 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.

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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-Commission 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 SubCommission 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-Commission are, in its opinion, inseparable from the information on which they are based,

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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 Secretary 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, decisions 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 discursive 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 fundamental 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 (“Noting”), 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,

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indicates the great importance of the choice of words. Thus, “Noting” clearly emphasizes an acknowledgement of the contents of the above-mentioned resolution, 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 indicative: 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 indicate, 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.

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One can thus see here the snowball effect of a decision made at the very highest 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 General 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 SubCommission’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 Commission, 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 repercussions 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.

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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 accomplish 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 Secretariat. 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 character 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 recommendations 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

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apparent. Mr. S¨orensen 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 significant 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 decisions. 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 internal 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 recommendations 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 discussed 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 SubCommission generally approaches all its work by stressing the necessity of finding 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

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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 significant moment, as it was just after the ratification of an international instrument procuring special rights for minorities: “The Declaration on the Rights of Persons 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 involving 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)

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The ideas developed in the report highlight a fundamental aspect of group conflicts and the protection of minorities: the necessity of responding to these conflicts via the intermediary of international mechanisms (not in a unilateral manner). 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 SubCommission, as we realize in reading the resolution of the Commission on Human 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 protection 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 increasingly specialized structures within the framework of the mandate assigned to the Sub-Commission, which clearly indicates a refusal of collusion between

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the principle of non-discrimination and the principle of minority protection. This clear demarcation is made possible by the existence of the instrument concerning minorities (the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities), granting specific rights to minorities. 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, specifying 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 solution 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 experiences. . . based on factual information submitted in a concrete and specific manner. (E/CN.4/Sub.2/1996/2)

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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 association 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 recommendations 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 reports 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 information 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:

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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 mechanisms 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 recourse mechanisms be collected; the treaty bodies and Special Rapporteurs give due regard to minority issues in carrying out their mandates; the High Commissioner for Human Rights develop and implement procedures for conflict prevention; 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

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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:

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1. The world or multi-state conflicts that gave rise to these organizations generally 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 conflict: 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 international 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 characterized 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 Nations. I then attempted to demonstrate particular characteristics of these spaces by stressing the importance of the structures put in place, as well as by highlighting 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 domains 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

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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 institutional debates (Ab´el`es 1992, 1999, 2000; Ab´el`es and Bellier 1996; Bellier 1995, 1999, 2000; Bellier and Wilson 2000); as a constitutive part of the institution, 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 studies 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 organization 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

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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 discourses 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 primarily 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 legitimization. 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 fundamentally – 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 contents 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

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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 framework 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 establishment 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 international 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

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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 dimensions 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 management 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 preferred 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 document 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 trajectory 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

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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 Prevention 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 activities 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

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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 precisely. 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 described 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 movements 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-

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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 caf´e 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. However, 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 hierarchy 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 appearance 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

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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 discourse 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 organization 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 focused on the spatial and conditioning systems, it seems important to understand that, among these systems, there are issues relating to the sequence of interactions 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 languages 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 military 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 Commonwealth 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

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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 representatives 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 acceptance 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 disseminating 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,

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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 General 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 intermediary 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 genres, 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

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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 exhaustifs et reproduisent les travaux ou les d´ebats de conf´erences ou de r´eunions de caract`ere international. Ils doivent eˆ tre fid`eles car l’action des OIG [Organisations InterGouvernementales] doit eˆ tre transparente” [documents are exhaustive and reproduce the discussion and debates of international conferences and meetings. 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 Secretary General (A/7576 par 2) mention is made of the increase in documentation produced within the organization by different general sections: from 400 million 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 organized 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 information, 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 institution 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.

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While the United Nations is of significant interest because of the documentary elements of its structures, the actual production of documents – by which I mean the manner in which written texts are produced – constitutes an essential 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 institutional 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 organize 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 commission 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 discourse, 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 connected 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 production) can therefore be seen as a constitutive medium of the institution, which

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permits it to be seen but at the same time legitimizes it. I consider that the emphasis 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 discourse 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 functioning 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 pr´ecis 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 translations 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 summary 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 Pr´ecis-Writers13 will be articulated around different tensions that seem to be

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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 documents. By this I mean that, without these principles, the institution is not in a position 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 “manual”, 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 summarize 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 position of adjectives describing the metaphorical noun “picture”. Parataxically, the definition of summary records then specifies their conceptual function (“summarize the views of”), a function which – potentially anyway – dispenses with formal repetition because it is the underlying ideas of the discourse that are being 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 information 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 pr´eciswriters:

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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. Pr´ecis-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. Pr´ecis-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 relations 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 proposal 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

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writing is reiterated here, it is also specified. The conception of the paraphrase as allowing conciseness without excluding the “exact meaning” of the original reveals 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 eˆ tre directe, pr´ecise et parfaitement correcte. Il convient d’´eviter les formules vagues et ambigu¨es, les locutions propres a` une langue e´ trang`ere 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 foreign language, journalistic and overly idiomatic expressions.]

Here, emphasis is placed on the intrinsic qualities of the expression used in SRs. The qualifiers – directe, pr´ecise 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 – formally anyway – the difficulty of immediately achieving objectivity in terms of selection, as we can see in the extract below: 3. Par d´efinition, le compte rendu analytique ne doit, en principe, retenir que 1’essentiel du d´ebat, en omettant tout ce qui est superflu. Dans la pratique, la d´etermination de ce qui est essentiel et doit, a` ce titre, figurer dans le compte rendu est, dans une certaine mesure, affaire de jugement et ne se prˆete pas a` l’´enonc´e de r`egles absolues. Il arrive souvent, en effet, que des points en apparence mineurs se trouvent apr`es coup revˆetir une grande importance et doivent eˆ tre consign´es 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 essential, 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,

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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 d´efinition ‘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 apr`es-coup (‘later’). This relates to the notion that judgment is not omnipresent in the pr´ecis-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 r`egles 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 pr´ecis-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 r´ealit´e (‘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 r´eponses a` une intervention remontant a` une s´eance pr´ec´edente: “En r´eponse [ou: r´epondant] a` une question pos´ee a` la s´eance pr´ec´edente par le repr´esentant de la France . . . ” [et non: “En r´eponse au repr´esentant 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”)]

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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-apr`es (avec indication de leurs e´ quivalents fr´equents en anglais et en espagnol) peut eˆ tre utile au r´edacteur, qui pour les choisir, fera, bien entendu, preuve de discernement et, en particulier, tiendra compte de la port´ee 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 pr´ecis-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 r´edacteurs doivent s’attacher a` employer des verbes qui correspondent le plus exactement a` la pens´ee de l’orateur. (SFTR/3, p. 73) [Pr´ecis-writers must apply themselves to using verbs that correspond most accurately 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 legitimacy – 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.

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2.2.2.2. Judgment as the supreme quality The manuals stress the various responsibilities of the pr´ecis-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 pr´eciswriter, 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 qualit´es dont on demande au r´edacteur de comptes rendus de faire preuve, la plus importante est sans doute le discernement. Un r´edacteur exp´eriment´e est a` mˆeme de faire le d´epart 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 eˆ tre omis. Il est en mesure d’´etablir un compte rendu clair, fid`ele et bien compos´e, o`u subsiste l’essentiel d´ebarrass´e de tous les e´ l´ements superflus. (SFTR/3, p. 6) [Of all the qualities we require of a pr´ecis-writer, the most important one is, without any doubt, discernment. An experienced pr´ecis-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 pr´ecis-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 conciseness and accuracy/exactness. Discernment is the quality that permits the selection of relevant information by eliminating – although the use here of the term “d´ebarrass´e ” (‘divested’) seems even more powerful – “les e´ l´ements superflus” (‘superfluous elements’). The decision resides with the pr´ecis-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.

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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 pr´ecis-writer in determining how much importance to give particular speeches: 33. In principle, the goal of the pr´ecis-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, pr´ecis-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 Secretary 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.

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An examination of the instructions relating to the writing of summary records reveals the tensions that exist between a need for the legitimization of documents, 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 institution). However, while an examination of the manuals seems to testify to the underlying institutional ideology, the scope of this examination remains insufficient. 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 reformulation. 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 involving 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 represent 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 passage 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 ideological 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

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work of description leading to a typology of the discursive marks of transposition 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 language 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.

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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 information 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 publicizes 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 national minorities and indigenous peoples such as the Chechens the Crimean Tartars 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 taking 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 minorit´es nationales tels que les Tch´etch`enes, les Tartars de Crim´ee, les Tib´etains, les Tutsis, les Cachemiriens, les Kurdes, les habitants du Timor oriental, sont aujourd’hui encore priv´es de leurs droits fondamentaux a` la vie et a` la libert´e. ` l’heure actuelle, le Kosovo est le th´eaˆ tre d’un g´enocide et d’une politique A de la terre brˆul´ee.16

21. Mr. L1  said that numerous national minorities and indigenous peoples 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. Polite formulae disappear, and the contextualization of discourse and the enunciative 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

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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 minorities. 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 caract`ere encore contradictoire/ confus mˆeme des approches en cette mati`ere et des opinions formul´ees il faut formuler aussi que certaines th`eses et opinions qui sont v´ehicul´ees autour de cette question sont encore malheureusement encore loin de contribuer a` la clarification des probl`emes existant et a` la diminution des situations tendues et conflictuelles dans certaines parties du monde et que malheureusement ceux-ci vont souvent dans une direction contraire / / il faut donc admettre que ces probl`emes sont encore aujourd’hui comme ils e´ taient dans le pass´e tr`es importants et que malheureusement et je r´ep`ete ce mot malheureusement souvent elles repr´esentent un des facteurs qui peuvent affecter envenimer mˆeme les relations entre les peuples et entre les e´ tats monsieur le pr´esident je voudrais en quelques mots me r´ef´erer bri`evement sur quelqu’unes des id´ees fort pertinentes a` mon avis que le rapport du groupe de travail met en e´ vidence ainsi se r´ef´erant aux conflits impliquant les minorit´es dont nous avons e´ t´e et nous sommes encore confront´es monsieur E1 souligne a` juste titre la n´ecessit´e de comprendre la nature et les causes de ces conflits / j’appuie e´ galement la d´eclaration faite par monsieur E2  qui souligne que la d´eclaration adopt´ee par l’Assembl´ee g´en´erale document de r´ef´erence en cette mati`ere pour tous les e´ tats membres devrait eˆ tre largement diffus´ee 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

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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 unfortunately 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 unfortunately 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 horizontal level as the vertical] SR 12. M.L2  dit que le rapport du Groupe de travail confirme l’int´erˆet majeur que les questions relatives aux minorit´es suscitent parmi les gouvernements et les ONG ainsi que la sagesse dont a fait preuve la Commission en d´ecidant de doter le Groupe d’un statut permanent. Le nombre et l’ampleur des d´ebats consacr´es par la communaut´e internationale aux probl`emes complexes et d´elicats des minorit´es est la meilleure preuve que celle-ci agit et progresse dans ce domaine. La Sous-Commission est bien plac´ee pour apporter sa contribution a` l’´eclaircissement d’un certain nombre de questions encore confuses. Le rapport du Groupe de travail contient plusieurs id´ees tr`es pertinentes. M.E1 a e´ voqu´e a` juste titre la n´ecessit´e de comprendre la nature et les causes des conflits eu e´ gard a` la situation des minorit´es, et M.E2 a observ´e avec raison que la D´eclaration devait eˆ tre largement diffus´ee. 12. Mr. L2  said that the Working Group’s report confirmed the great interest 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. 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

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not acknowledge the speaker’s emphasis in this section of the speech (“et que malheureusement et je r´ep`ete 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 modification 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 experts 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

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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 e´ galement d’indiquer que l’identit´e culturelle des nombreux peuples minoritaires qui vivent dans les vastes r´egions du nord de la Russie et qui parlent diverses langues ouraliennes ou alta¨ıques est menac´ee. 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 identit´e 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 security/ (Sub.2/ONG) CR Fr/ sont aujourd’hui encore priv´es de leurs droits fondamentaux a` la vie et a` la libert´e. CR En/ suffered from being deprived of their fundamental rights to life and liberty

(5) ∅ plan horizontal et vertical T/ devrait eˆ tre largement diffus´ee 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 eˆ tre largement diffus´ee. En/ should be widely distributed.

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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 pr´esident le rapport lequel le groupe de travail nous pr´esente refl`ete et confirme a` mon avis l’int´erˆet majeur que ce probl`eme/ heum /suscite tant de la part des gouvernements que de la part des organisations non gouvernementales et le nombre e´ lev´e de pays et des organisations non gouvernementales qui ont particip´e aux sessions du groupe et a` ses d´elib´erations est dans ce sens tr`es significatif // tout ceci sont a` regarder avec satisfaction et reconfirme ainsi la sagesse que la commission a prouv´e lorsqu’elle a d´ecid´e de cr´eer ce groupe de travail et ensuite de lui donner un caract`ere 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 organizations 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’int´erˆet majeur que les questions relatives aux minorit´es suscitent parmi les gouvernements et les ONG ainsi que la sagesse dont a fait preuve la Commission en d´ecidant de doter le Groupe d’un statut permanent. 12. Mr. L2  said that the Working Group’s report confirmed the great interest 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 travail” [‘working group’]; “confirme” [‘confirmed’]; “int´erˆet majeur” [‘great interest’]; “suscite”; “les gouvernements” [‘governments’]; “les organisations non gouvernementales” [‘NGO’]; “la sagesse”[‘wisdom’]; “Commission”; “perma-

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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 (“refl`ete” [‘reflects’]; “de cr´eer” [‘to create’]) and omissions of statements (“le nombre e´ lev´e de pays qui ont particip´e aux sessions du groupe et a` ses d´elib´erations est dans ce sens tr`es significatif tout ceci est a` regarder avec satisfaction” [‘the high number of countries and of non-governmental organizations that have participated 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 “d´ebarass´e 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’interˆet” [‘the interest’] to be placed at the same level, both dependent on the main verb “confirmer” [‘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 demonstrates 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

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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 manuals, 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 elimination 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 underlying 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 polyphonic 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 examination 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 produces 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 repr´esentation qu’elles donnent d’elles-mˆemes au monde ext´erieur” [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.

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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 ideologies that underlie discursive production? How can they be explained? What consequences 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 fundamentally the response to an institutional need: this, it seems to me, is its reason for existing. The processes involved in making discourses objective go handin-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 discursive 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 ethnomethodology) 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

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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 discourses, 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 associated 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 towards a degree of homogenization. These acts, however, are anchored in forms of “structuring” that follow a hierarchical logic and are influenced by an omnipresence 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 discursive 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 instruments 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 instrument 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 explicitly 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 protection, 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

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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 constant 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 Declaration 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

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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 understand 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 SubCommission, 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 declaration. 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,

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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 highlighted 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 necessary 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

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states then made their propositions, the Secretariat worked out a plan, and the Commission began its work. The Commission thus mandated a Committee responsible 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:

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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 preexamination 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)

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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 comment 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 importance” 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 report concerning Article 36, the Sub-Commission therefore took up this document 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 SubCommission 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 SubCommission 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 SubCommission 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 problematic. 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 agreement 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

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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 distinguished 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-Commission 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 submitted 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.

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In his report to the Commission, the reporter gives a brief commentary regarding these changes, reproduced below. The reporter demonstrates some discursive shifts and some brief explanations in the expression of the retained formulations: “it requires”/“it is no longer required”, marking additions and omissions, with parentheses as elements of explanation: “(objective criterion)”/“(subjective 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 propositions, 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”

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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” Addition:

⇒ “persons”

“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 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)

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)

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.

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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 politics 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 disappearance of “minority” during the discursive movements (there was no dissension, 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.

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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 minorities must involve some “well defined” safeguards and that objective demarcation – 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 restrictions. As regards the words “well defined” which undoubtedly represented a restriction, 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)

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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 expatriation 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)

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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 noninterference in internal state affairs and justified his position by invoking previous 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 discursive 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 “nationals”: 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 regulation. The possible abuse, mentioned by Ms. Monroe, also evokes an image of minorities as potential claimants or even trouble-makers. The phrase “attempting 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,

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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 decisions 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 SubCommission. 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 discursive 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.

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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 nonrestrictive, 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 towards universality while protecting state interests: the subject of minorities thus leads to an ideological impasse. This kind of impasse is equally but more explicitly 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 conceive of total equality between the minorities and the majority in any given state.

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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 protection. 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 characteristics 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 formulated 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)

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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 convincing 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 understand the political issues at stake in a proposition of this kind. While the SubCommission 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 understanding 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 Commission, 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

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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 Article 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 protecting 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

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the principles governing their rights. This reasoning is based on a universalist conception of the instrument. Universalist logic consists of establishing regulatory 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 tolerance 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 minorities 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 Declaration 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:

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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 implementation of the human rights declaration. (E/CN.4/SR.73)

We can see in Mr. Loufti’s comment an opposition between the rights of “individuals” 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 representative: 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 individual 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 individual 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 representatives, 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

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the protection of minorities. The ambivalence that I brought to light at the beginning 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 protection 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.

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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 homogenization 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.

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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 representing 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 Belarusian, 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 demonstrating the lack of foundation of the arguments expressed in favor of its deletion. The speakers attempted to stress the compatibility between individual and collective 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 statement 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.

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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 national 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 assimilation 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

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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 minorities 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 th`eses de Staline en 1913 avaient ceci de r´evolutionnaire, qu’`a l’inverse de la politique imp´eriale suivie jusque-l`a et qui tendait a` la russification des populations, elle proposaient au contraire la reconnaissance de la diversit´e 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 “Russianization” 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,

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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 revolutionary 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 R´epublique Sovi´etique Russe montre que la f´ed´eration que nous construisons sera un pas en avant vers l’unit´e des diff´erentes nationalit´es de la Russie, dans un Etat sovi´etique unique, d´emocratique et centralis´e” [The example of the Soviet Republic shows that the federation that we are constructing 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 diversity 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, therefore, 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 recognition 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

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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 understand 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. SaintLot, 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 ideologies 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)

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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 introductory text as reflecting, on the contrary, a continuation of the search for universality. This is marked discursively by the notions of a “common denominator” 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 Commission. Indeed, while the delegations were able to achieve a degree of consensus, the Declaration did not give rise to unanimity. The disagreements about minorities 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 Declaration 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 materialized 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 realization 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 demand an adjournment of the ratification. While the debates included minorities

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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, formulated 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 declaration which he considered to be fundamental: the absence of provisions guaranteeing the rights of national minorities. The Geneva text had contained an article which, although incomplete, had dealt with the necessity of assuring to ethnical

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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 affirmation 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 application 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 allows 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 practical 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 effectively 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 highlighting the problem of the absence of an article concerning minorities. These repeated complaints led to a proposition to postpone the vote on the Declaration,

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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 “unacceptable”. 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 delegation 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 procedural 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 majority. This extract also illustrates the power relations at play and tends, through its tone, to minimize the importance of the Soviet arguments. The French representative 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

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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 necessity 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 justification 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 indicating 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 fundamental question themselves, this was clearly because what was happening was a dialog of the deaf, and the impossibility of reconciling “Capitalist” and “Communist” 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 relation 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 wrangling 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.

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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 article, 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,

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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 emphasized some formulae that convey the incompatibility between universality and minority: these elements are highlighted in grey in the above text. It is possible 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 Declaration 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 discussions 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 Article’s absence and furthermore, expels the divergent points of view on the Universal Declaration itself, which discussions about minorities (among others) could have brought to light. Another significant element of the resolution is the ambivalence of the institution 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

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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 because, 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 discussion 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

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more precise, what arises here is the question of the elements that characterize universality. While the representatives of the Communist States claimed universality, it was primarily from the perspective of the people. Accordingly, a declaration that only focuses on the individual denies all form of that individual’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 conceptions 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 inscribed 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

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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 necessitates 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 minority protection, justifying the latter’s absence. The second element relates to the choices regarding the study of the protection of minorities, explicitly relegated to discursive spaces responsible for dealing with questions about human rights: the Sub-Commission in particular. This paradox would determine the

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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 principles 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 protection 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 continuity 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 conceptual 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.

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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 dangerous. 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

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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 enumeration 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 implementation of rights raised numerous legal and political issues, which could not be quickly or easily resolved. As the United Nations sought to anchor itself symbolically, 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

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the name of the Charter or the Covenant) in order to elaborate particular measures, 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 measures 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. Discussion naturally revolved around the different possible ways of responding to the issues of minority protection. Considering previous discussions, the SubCommission approached these issues carefully, looking at the various possibilities 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.

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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 agreement”). Of the three possibilities mentioned here, preference would be given to the inclusion 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 occasionally 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 acknowledgment 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 foreseen 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 SubCommission, 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 differently, 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

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and a “minoritizing”, even “minoritist”, position. I shall briefly describe each position. The position that I describe as “pragmatic” responded to the text of Resolution 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 complexity, it was important to put forward effective, practical propositions rather than becoming lost in conjectures. In other words, they rejected a strictly conceptual or general vision of the minority question, given the impasses that occurred in the discussions within the Commission and the General Assembly. They maintained 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 principle 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

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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 SubCommission 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 because 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, directed 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

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convinced about one another’s approaches, rallied around a similarity in terms of conceptions, thus avoiding any ideological impasses. Finally, while the possibilities 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 resolutions 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 presented 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 SubCommission in 1949,29 and was the Sub-Commission’s first discursive act connected to Resolution 217C.

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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 minorities, 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 extensively 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 proclaimed in the Universal Declaration of Human Rights, and that, pending the coming into force of an international covenant on human rights, it is not feasible 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 behind, the following draft resolution on facilities to be provided for minorities,

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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 minorities (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 construction 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 elements 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

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emphasized that the Declaration did not provide for everything and that the proposed 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 Governments 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 justification of the resolution without, however, focusing it under the institutional angle. No mention is made of either the Commission or the Sub-Commission, who

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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: recommendations 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 elements 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 tautological 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.

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4. A maintenance of state prerogatives by means of the establishment of safeguards, so that these rights did not become automatic and obligatory principles. The practical dispositions foreseen by the resolution were therefore part of an attempt by the Sub-Commission to unite its members through a discursive action in which they could be seen to be almost unanimous, and which would not interfere too much with the different ideological positions within the Commission. 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 divisions 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

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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 Article 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 according 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 (descriptive 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 characterized 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,

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and that among these are groups that need to be protected by special measures, 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-Commission: 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 SubCommission 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 minority. (“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” measures, 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 protection, 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

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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 SubCommission 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 limitations imposed by the definition’s complexity (the tenor of which was still unknown!). The definition, by means of these factors, is associated with particular 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:

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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 communication, 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 inconsistent 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, → balancing 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 minorities as the United Nations may wish to take, and in the light of the exceptions and complexities set out above:

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12. a) The term minority includes only those non-dominant groups in a population 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 linguistic, 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-

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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 development 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 explicit 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 experts 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’ins´erer dans le Pacte

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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

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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 minorities 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 issues 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 consisted of two movements: 1. The quest for consensus by incorporating different approaches to the protection 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 protection. This conceptual shift primarily involves the quest for consensus and an inclusion of particularities within the discursive reflections, as well as a consideration 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.

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Although the procedures and factors of change described above made the presence 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 relations. 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 SubCommission 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 conditions took into account both their institutional relation to the Commission and the different positions represented within its own space. Nonetheless, the Commission 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

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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 hypothetical, 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-determination. When this article was discussed, there were two opposing theories. Some members considered that the principle concerned all populations, including minorities. Others, however, explicitly refused the granting of this right to minorities, arguing that it only addressed colonized peoples. The interpretation 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

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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-determination) 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 Minorities, 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.”

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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 proposition of the Sub-Commission (1), as we have seen, proposes an article characterized 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 explicit mention of the obligations of the state (“The State shall ensure to minorities. . . ”). 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 individual 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

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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. Accordingly, 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

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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 SubCommission, 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 living 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

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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 different 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 appeased. First, I shall show the different kinds of “fears” aroused by the Soviet and Yugoslav propositions: (1) fear that minorities could claim separation and auton-

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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 potentially 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 minorities 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 legislation. . . special prerogatives”). This litany highlights the judicial, institutional and financial consequences. Furthermore, the formulation tends to reject the notion 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

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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 privileges 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 privileges to minorities, the Soviet and Yugoslav representatives, along with the representatives of Poland and the Ukraine, who supported the Soviet proposition, 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”.

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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 minorities, 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 proposition 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.

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Several representatives insisted that, in their territory, the question of minorities 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 clarification 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 inappropriate. 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 between “minorities in the true sense” and “indigenous communities”, “foreign colonies” and “immigrants”. The reference to these categories clearly demonstrates 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 b´en´efici´e des avantages de la civilisation moderne; . . . ce serait pur romantisme que d’en faire des minorit´es” [These groups have had no benefit from the advantages of modern civilization;

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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 possibly 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 certainly 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 minority 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

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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 propositions expressed, to varying degrees (the ones I have examined above are probably 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 Yugoslav 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 discussion 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 propositions 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.

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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 mention 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 situation. (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.

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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 disengagement 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 noncontention. 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 discursive event (cf. Chapter 4). The presence of an Article of this type nonetheless assumed a political importance 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-determination 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 anticipated 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

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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 Commission, 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.

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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 The Chilean delegation would therefore vote for article 25 if the Committee favoured it, but declared that there were no minorities in Chile and that .their ..... .formation . . . . . . . . . . . .was .... .not . . . .desirable, . . . . . . . . . . . .as . . . it . .would . . . . . . . prevent . . . . . . . . . .the ... .strengthening . . . . . . . . . . . . . . . .of .. national . . . . . . . . . . .unity. ..... (A/C.3/SR.1103)

2. VENEZUELA Article 25 did not raise difficulty for the delegation of Venezuela, because the minority problem did not arise there. Nevertheless, as the Commission on Human Rights had emphasized, the provisions relating to the rights of minorities should not be so applied as . . . .to . . .encourage ........... the . . . . .emergence ............ of . . . .new . . . . . minority .......... groups, . . . . . . . . . .or . . . to .. thwart the . . . . . . . . . . . . .process ........ of . . . .assimilation ............. and . . . . . .so . . .threaten . . . . . . . . . .the ... unity of . . . . . . . . . . .the . . . .State. ..... (A/C.3/SR.1103)

3. PANAMA Mr. DOMINGUEZ said that he would vote for the article before the Committee , which he regarded as a supplementary statement of the respect due to the human personality. The problem dealt with in that article did not, strictly speaking, concern Panama which was a melting-pot of numerous races which the Government .was ... endeavouring ............... to . . . .integrate . . . . . . . . . . .as .. far . . . . .as . . .possible ......... into . . . . . .the . . . . national ......... life. Obviously ................. the . . . . .provisions . . . . . . . . . . . . .of .. .article . . . . . . . .25 . . . should ........ .not . . . .be . . . .invoked . . . . . . . . . .to. .justify . . . . . . . .breaches ......... .of. . .the . . . .national ......... integrity . . . . . . . . . . .in . . . any .... country. ......... (A/C.3/SR.1103)

4. ECUADOR Where half of the population of a country consisted of Indians whom ....... Government . . . . . . . . . . . . . . . .was ... working . . . . . . . . . . .hard . . . . . .to .. assimilate . . . . . . . . . . . . .into . . . . .the ... working . . . . . . . . . . .life . . . . .of .. the . . . nation, it was hardly a native minority. Ecuador could rightly and objectively claim that there were no minorities on its territory. Since, however, minority groups existed in other regions, his delegation could accept article 25 , subject . . . . . . . . . .to. . .the ... express . . . . . . . . . .condition .......... that . . . . . .it. .could . . . . . . . .in. .no . . .way . . . . . .thwart . . . . . . . .the ... .process . . . . . . . . .of . . . their ..... assimilation. .............. (A/C.3/SR.1103)

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These four extracts allow us to see four discursive constants. The first (indicated 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 absence 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 majority 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 happening 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 becomes absolutely necessary for the speakers to reiterate the guiding principles of their state procedures: assimilation and the protection of national unity. The

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Chilean representative stresses the undesirability of the formation of minorities. While he does not explicitly refer to the principle of assimilation in this extract, 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 assimilation. 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 “assimilation”, 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 assimilationist 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 practices 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 protecting 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 minority 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.

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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 In addition to the political rights that members of minority groups enjoyed as citizens, the Indian Constitution also guaranteed to them the special rights set forth in article 25, and his delegation could accept that text. (A/C.3/SR. 1103)

6. IRAQ Mrs. AFNAN (Iraq) expressed her delegation’s full agreement with the principles set forth in article 25, which she would support. In Iraq, religious minorities had always enjoyed the right to practise their own religions; members of linguistic and ethnic minorities, likewise, were free to preserve their own culture and use their own language. (A/C.3/SR. 1104)

7. PAKISTAN 8. INDONESIA Begum Aziz Mr. HENDRAHMED (PakANINGRAT istan) said that (Indonesia) said her delegation that he could considered arsupport article 25, ticle 25 to be as it was in comthe most imporplete accord with tant in the whole the legal and moral Covenant. (. . . ) principle practised There were several in his country. Indonesia conreligious minorisisted of some ties in Pakistan 3,000 islands and whose sentiments had always been their cultures, respected and taken together, protected by law. were regarded as In Pakistan, freeIndonesian culture. dom of religion, Therefore he language and supported article culture was not 25 in the spirit only advocated of the Indonesian but practised with motto “Bhineka pride. Tunggal Ika”, that (A/C.3/SR. 1104) was, “Unity in diversity”. (A/C.3/SR. 1104)

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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 Commission – questions relating to decolonization: 9. LIBERIA Mr. THOMAS (Liberia) said that article 25 set forth clearly and satisfactorily certain principles fully respected in Liberia, where the protection of minorities was no longer a problem. At one time there had been a demarcation line between the indigenous population and the descendants of immigrants ; but because of a unification programme carried on by the present Government that line had now disappeared. (A/C.3/SR. 1103)

10. UPPER VOLTA Mr. TOURE (Upper Volta) endorsed this article as it stood since it was fully in keeping with his country’s constitutional provisions. The question of minorities did not arise in the Upper Volta: the few civil servants and traders of foreign origin enjoyed the same rights as citizens. (. . . ) He wished to note that France, the country in which the idea of the rights of man had originated, had at all times respected the religions, languages and cultures of

11. GHANA Mr. MATE (Ghana) said that article 25 was acceptable to his delegation as it stood. While he was opposed to colonialism in all its forms, he felt it his duty to note that the British colonizers of his country had never sought to suppress the religions, languages or cultures of the people: they had, in fact, often worked to promote the indigenous culture. The independent State of Ghana had continued to respect the right of all to enjoy their own culture, to practise their own

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religion and to use their own language. (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 former colonizers, which placed them in an ambivalent position. They had to denounce 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 legislation 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 tribute”, 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.

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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 intervening. 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 focused 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 representative 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 language 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.

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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 SubCommission’s presence in the institution – that permitted the reproduction of nationalist ideologies. The Article was then put together with two other propositions, thereby directing discussion in the political space towards a quest for the best formulation possible. I have demonstrated that this entry into discussion was made possible 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 transformed 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.

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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 particularism 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 discursive 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 specifically 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 sixties 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.

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The examination of this discursive event is important for the following reasons: 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 SubCommission, 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

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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 ultimately 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 construction 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 parallel 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.

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Table 1.

Title of the Declaration Declaration on the Rights of the Child Declaration on the Elimination of All Forms of Racial Discrimination Declaration on the Elimination of All Forms of Discrimination against Women

Date of ratification 20.11.1959 20.11.1963 07.11.1967

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 Committee 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 existence 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,

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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 having been explicitly mentioned in previous documents. As the United Nations did not deem it opportune to include minority rights in the Universal Declaration, 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 instruments 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 appeared 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.

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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 aussitˆot que possible une e´ tude sur l’application des principes e´ nonc´es a` 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 process. 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 longitudinal (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 Covenant on Civil and Political Rights V Conclusions and recommendations

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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 Assembly 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 protect 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 minorities in its instruments. The change in attitude can be explained by the actual failure of the dominant conception during the discussions of the Universal Declaration, 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, however, 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.

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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, Capotorti 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 International 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 Article 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”,

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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 ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.

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

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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 (often 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 sufficiently rigorous, scientific and factual. The Capotorti report, however, met the demand for clarity in terms of rigor and objectivity, both of these being considered 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 ensuring 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.

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The Sub-commission on Prevention of Discrimination and Protection of Minorities 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 identify 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 SubCommission’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:

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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 connection 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 created. Capotorti’s report and a proposition about the Declaration, submitted by Yugoslavia, were put before this Group. During discussions, the Yugoslav delegate proved to be a significant advocate of the Sub-Commission’s resolution. Fully supporting the Sub-Commission’ resolution, he submitted a draft Decla-

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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 promotion 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 surprising 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 interests 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 structure, 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-

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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 international 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 prevailing in the development of the Declaration, i.e. the principles of sovereignty, non-discrimination, continuity with other human rights instruments and the necessity 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 numerous difficulties as time went on. Spread over a period of eleven years, the drafting process was characterized by a complex play of amendments, modifications 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

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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, Deschˆenes, to undertake a study that would result in a definition. 3.1.2.1. The Deschˆenes definition A lawyer and legal expert from Montreal, Deschˆenes 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 nondominant position in that State, endowed with ethnic, religious or linguistic characteristics 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 ’minority’”, 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 possibility of such an undertaking, Deschˆenes 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 prevent me from embarking on digressions which, although involuntary, could nevertheless divert us from our goal. (E/CN.4/sub.2/1985/31)

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The metaphorical formulation reflects the ambience in which the report was submitted (skepticism and constraint). It also indicates the institutional dynamics 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, Deschˆenes 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 intertextually. The question of “non-problems” must be connected to problems raised in previous debates. Here, Deschˆenes anticipates any objections that could arise by showing their unacceptability: hence, the reference to foreseen, possible objections 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 relationship between groups and their members”. In order to make these issues appear non-problematic, Deschˆenes constructed arguments supported by various documents, viz. previous discussions, remarks made by national delegations concerning the definition and references to state constitutions. According to Deschˆenes, the question of indigenous populations is a nonproblem: (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 indigenous populations. At the conceptual level, indigenous populations had to

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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 numerical 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 Deschˆenes 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, Deschˆenes 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, Deschˆenes 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 Deschˆenes, 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 Deschˆenes’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.

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56. (. . . ) Every minority undoubtedly constitutes a group, but where it is a question 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, Deschˆenes 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, Deschˆenes 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, Deschˆenes 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. Deschˆenes attempted to limit this risk, as Capotorti had done, by introducing the “implicit” dimension of the collective will. Deschˆenes associated collective will with the “will to survive”. He considered 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 Deschˆenes in order to exclude minorities desiring assimilation from measures of protection. Such minorities, therefore, would not require any protection, as they tended to merge with the dominant population.

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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, Deschˆenes resolved two problematic aspects generally associated with this criterion. First of all, as far as the question of the “minimum number” was concerned, Deschˆenes 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. Deschˆenes presented an extensive argument on this issue, referring, among others, to the example of the non-dominant black majority in South Africa. It was evident 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 Deschˆenes, “[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).

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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 indissoluble 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 (absence 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, Deschˆenes 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 Deschˆenes to ask: 90. (. . . )Therefore, exactly which are the minorities concerned – national minorities, other minorities, or all minorities taken together? The difficulty arises from the fact that the terms have not been defined. We know almost instinctively 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)

Deschˆenes 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 referring to non-naturalized aliens) that it posed a significant problem. All the divergences listed by Deschˆenes are thus introduced by the formula “What purpose would be served . . . ?” indicating the time-wasting nature and impasses of these discussions. What Deschˆenes 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 Deschˆenes 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

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the outcome of institutional and political restraints, that it shifts between objective 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 Deschˆenes 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 definition was a significant part of the discussions. Each member, as is the custom, acknowledged the quality of Mr. Deschˆenes’ 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. Deschˆenes’ 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. Deschˆenes. (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 Commission. 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

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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 fulfilling 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 Deschˆenes’ 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 integrity 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 characteristics 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 considered 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 undoubtedly 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)

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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 Deschˆenes definition by means of depicting the individual as the ultimate minimum number. Deschˆenes’ 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 hierarchical 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 distinguishes 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:

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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 Russia 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 disappeared 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 criteria delineated by Deschˆenes 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 Deschˆenes 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. Deschˆenes 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 argument. 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 complexity 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 Deschˆenes definition sought to eliminate problems once and for all, to specify clear and objective criteria, and to take into account different ideological and institutional constraints. In the context of debate, however, it evidently

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failed. The majority of the members of the Sub-Commission were skeptical: they expressed many objections and essentially demonstrated the limitations of Deschˆenes’ arguments. In these debates, we should probably see a real refusal to create a definition 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 particularity 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 different, 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 Deschˆenes’ report. They appended to it, however, a resolution inserting the definition in a discourse that effectively allowed them to dissociate themselves from Deschˆenes’ propositions. The formulation is thus indicative of their lack of solidarity with their colleague. Indeed, while the resolution lauded the fine quality of Deschˆenes’ work, it indicated the non-achievement of the definition by the addition of the term “provisional definition”. 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 resolution included a paragraph that explicitly mentioned the disagreements about the definition: “la d´efinition propos´ee n’a pas recueilli l’approbation g´en´erale” [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 Deschˆenes definition demonstrates the possible limitations of an understanding of minorities and their protection in a context that is based either on universality, thus preventing the introduction of rights, or on particularity, thus making the existence of a definition incorporating all particular traits impossible. This difficulty, however, 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

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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 different 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 solutions 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 challenges 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 acceptability 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

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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 definition 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 irrelevance. As we have seen, the Committee requested that the Sub-Commission provide a definition that could serve as the basis for the drafting of the Declaration. The Committee then received the Deschˆenes document, the Sub-Commission’s resolution, and all the summary records of the sessions concerning this document. 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 Deschˆenes 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 similar 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)

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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 considered 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 nonrestrictive; – 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: “national, religious, ethnic and linguistic minorities”. In the final text, however,

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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 cultural, 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 suffice. 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 presence of a definition, introducing a paradox that could only be resolved by discursive 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.

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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 mechanisms. 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 discursively by “persons belonging to minorities” or “minorities”, into parentheses until the final debate. The different stages of the text are therefore strewn with

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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 Article 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

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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 Declaration, 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)

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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

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next step, however, the statement is modulated by a clause that allows nonconformity, 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.

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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 development. 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 cooperation 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”.

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Following the preamble, which anchors the discourse, situates it within historical, structural and ideological affiliations and justifies its existence, nine articles are proposed, dealing with the diverse components of rights and obligations: 1. 2. 3. 4. 5. 6.

the protection of existence and identity; the enunciation of rights; the principle of non-discrimination; the obligations of states; national and international political programs; international co-operation in terms of exchanges aimed at a better understanding 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 emerging 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 identification 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.

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These two components were at work during all the decisional processes relevant to the construction of international instruments. They also gave rise to a particular 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 associated 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 production 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 minorities 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

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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 characteristics 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 specifically contain the mention of “language”41 and reproduced them below:

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(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 fundamental 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 culture, 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 several 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

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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 international 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, language 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”. Accordingly, 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 characterize 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 development. No specification of language is mentioned here. Briefly, this article indicates 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

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address concerning the effectuation of these measures. The contents of the measures, 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 (religion 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 attest 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 language 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 preserve 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, explain 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 romantic 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 – particularly 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-

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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 linguisticethnic-religious; language-culture-religion. Furthermore, the qualifiers correspond 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 concept 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 existence 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 promulgated 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 potential 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 formulation 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 document written by the drafting Committee was then submitted to the Commission,

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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 interest; 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 constitutions, 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

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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 international 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 beginning; 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 between 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 ambivalence 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 document, 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.

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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 Minorities, 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 promotion 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

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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 information 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 information on current legislation within their territories regarding the protection of minorities. Secondly, the Working Group invited NGOs to share their observations 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.

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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 protected 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 adequately protected. These included the Batwa, Bagogwe, Bayambo and Albino minorities in Rwanda (African Indigenous and Minority Peoples Organization); the Crimean Tatars in Ukraine as the State programme assisting their return and resettlement was being reduced (Mejlis of the Crimean Tatar People); the Kurdish minority in Iraq, the Islamic Republic of Iran, the Syrian Arab Republic, Turkey and the former Soviet Union whose cultural and historical identity was being destroyed (Human Rights Alliance); the Turkish Muslim minority in Greece (Association of Western Thrace Minority Graduates); 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 minority in Bhutan who were forced to flee to refugee camps in Nepal and India (Centre for the Protection of Minorities and Against Racism and Discrimination 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

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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 actively promoted the Convention on the Rights of the Child, its implementation through legislation and specific programmes, and public awareness of the Convention 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 legitimize 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 included 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. Generally, 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 inherent 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 functioning 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-

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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 mandate 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

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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 significance 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 protection of minorities, which were not part of the United Nations. In this regard, we can mention the European Union’s Convention-CADRE on national minorities, 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 resurfacing 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

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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 convention 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 SubCommission 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 information requested is slow in coming. The Commission is not really inclined to conceive of a Convention that would necessitate additional institutional structures, and the relative expenditure would impede the whole process.The Working Group is currently directing its efforts in other directions, principally on the creation of a supplementary protocol that would be associated with the Covenant on Civil and Political Rights. This solution would have the advantage of incorporating the lodging of complaints with the Human Rights Committee, responsible for ensuring the observance of the above Covenant. This approach, moreover,

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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-Commission 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. Furthermore, the examination of possible future mechanisms highlights the necessity 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 appeasement 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.

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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, acknowledged, 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 disappearing 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 populations 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 minorities. 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

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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 nationstates 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 divergence 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 therefore 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 nationstates. 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, demanded that minorities be explicitly recognized and mentioned in the Universal Declaration of Human Rights, the founding document of the institution’s universal 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.

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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 institution 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 minorities 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 divergent: they were still anchored in the problem of nationalism and demonstrated

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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 protection 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 identification 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 irreconcilable 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. Language 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 discourses on minorities. Language is constructed as a “variable” and is included in the ideologies that give rise to the existence of minorities. Discourses on language are based on principles of territoriality. Language, moreover, constitutes an objective criterion that is easy to identify. Language, inasmuch as it is observable 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 practices but at the level of the object. Seeing the United Nations as an inter-national institution implies that all discourse on the protection of minorities must be thought of and understood in this context. These discourses are thus primarily national and therefore de-

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pendent on state interests. Furthermore, they have the capacity to manage the paradox between state interests and the universal interests of institutional mechanisms. It is probably for this reason that we have witnessed, in the course of the history I have traced, a kind of variation on the same theme. The critique and the essential purpose of this work were to demonstrate that the logic of the nation-state creates problems that involve minorities; attempts to resolve these problems cannot in any way avoid the very logic that created the problems. My position with regard to the United Nations, although often colored by skepticism, does not seek to denounce the institution, but rather to show that the knowledge it produces and the discourses associated with it are determined by particular ideologies. Within this context, therefore, there is a coherent line. This is what has to be interrogated and this is what I have tried to do. The logical impasses encountered in the course of this work can only be resolved by a significant modification of ideological perspectives, which, I believe, implies the decentralization of the paradigm of nationalism. The United Nations, therefore, is a field that allowed us to reveal the importance of international issues in the matter of minority protection. While, on the surface, the United Nations may appear to be a possible solution to the excess of state interests, I have shown that this is not the case. On the contrary, the United Nations contributes to the maintenance of national ideologies and prevents minorities from being considered beyond this context. This then leads to interrogation and evident skepticism with regard to the legitimacy of promoting an international protectionist discourse, to be established in association with such institutional logic. In effect, the values and necessary universality of the institution have brought further constraints on discourses on language and minorities. I have demonstrated throughout this work that these discourses tend to maintain an objectifying view of language and minorities, while becoming an arena for international power relations. The study of linguistic minorities and their protection within an international context has, I hope, contributed to a revelation of ideological oppositions and the fundamentally political place of these discourses. In this regard, the “historicity” of these discourses is essential, insofar as it allows us to grasp them as they emerge and are determined. The international framework of the UN is at once a microcosm of international relations and an essential agency in the production of knowledge. This knowledge, as action, is effectuated. It is basically problematic but the institution systematically seeks to make it un-problematic – by means of negotiated and agreed upon regulations – in order for it to lead to the maintenance of an established order. It seems to me that this work may contribute to a critique of current discourses on the international and universal protection of languages and linguistic minorities. The UN discourses on these issues show the impasse in universal

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possibilities of rights, in that the very concepts of minority and language are fundamentally heteroglossic and cannot be subjected to principles of generalization. In fact, one can hardly imagine the possibility of producing discourses that could try to resolve this problem without taking this element into account. It seems, furthermore, that this work may allow a reconsideration of current discourses on the protection of languages. I believe that the essential question, which must confront any sociolinguist willing to think about and engage in this issue, cannot be dismissed by the complexity of the phenomenon. The complexity involves whatever it is that causes linguistic minorities to exist and, therefore, the role of the state, as well as the role of communities that are for or against the state. The consequence of the ideological context in question may be the reproduction of the dominant ideology and, therefore, the reproduction of the causes of discrimination and exclusion. Without doubt, a radical position would be to want the world to change and, if one wants to protect minorities, to apply oneself to modifying the causes of their existence. Such an endeavor would be inevitably complex and almost certainly doomed to failure. However, bringing to light the complex factors relative to the protection of minorities should signify that the consequences of these discourses are effective. While the United Nations desires to protect minorities, it nonetheless remains the case that the discourses construct minorities and maintain their minority status. In the institutional context that we have seen, it is impossible to escape the ideological framework that determines it. This is probably the problem with current discussions and some dominant streams of sociolinguistics. Whereas linguistic minorities exist because an essentialist vision of language, culture and religion is implied by the homogenization of the state, I believe that it is only by reifying language and minorities that we will be able to attain the much sought after objectives of social equality. Indeed, the consequence of United Nations discourses, just like some current discourses in sociolinguistics, may be that the only way for minority groups to make their voices heard is to reproduce the essentialist logic of language, culture and religion. The problem with this is that it maintains the ideological system of the nation-state and reproduces the inequality of communities seen as minorities. Inequality and minority status are inherent in the hegemonic functioning of the state; therefore, it seems necessary to seek other possible voices that do not reproduce the dominant discourses. In the context of this study, I am not claiming to present solutions. Rather, I consider that it is our duty, as sociolinguists, to try to demonstrate the risks of prolonging state conceptions by committing ourselves to a struggle against an essentialist paradigm used for political and scientific purposes. Compartmentalizing language and minorities prevents the possibility of thinking differently about these people and groups.

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Our duty, then, is to reject simplification and to accept complexity, albeit admitting that our field of knowledge is limited, incomplete and partial. I think, however, that we have the means to try to elucidate current social processes involving language. I consider it possible to participate in debate, provided that we explain our ideological foundations. This participation, however, may be unpopular and displeasing because it does not immediately propose a justification of protectionist discourses, questions state discourses, and may misjudge some of the difficulties faced by minorities. But at the same time, this participation in debate may be able to reflect the phenomena involved, indicate particular difficulties and highlight the consequences of politics. Participation in debate can suggest but will never resolve, and would be unable to offer a valid answer for all, every time. The rejection of generalization should thus lead us to see all protection of linguistic minorities in its heterological and heteroglossic perspective, and to therefore prefer a conception of language as an intrinsically social phenomenon by looking at minorities in terms of the processes that make them minorities. Finally, we must open our eyes and describe and explain the changes in society; we must try to understand how they constitute new possibilities and obstacles for social forms of linguistic minoritization. This is a challenge that I believe can be met by seeking to contribute more to the conversation, rather than by imposing a particular knowledge, and by foreseeing research under the aegis of modifying the epistemological paradigm.

Notes 1. For questions relating to the emergence and to the various definitions of the term “minority”, see H´eraud (1978), Allardt (1992), or Auburger (1990). 2. Cf. also Laforest (1999), Rickford (1999) and Heller (1999c) for a discussion of the place and role of sociolinguistics in public debate. 3. The principle of hierarchy is fundamental to an understanding of the institution’s functioning. The underlying logic implies that ultimately these organs are enabled to not only give future directions to the organization but also to take charge of the particular action that will result. The institution is bestowed with the power of decision, which was not the case in the structuring of the League of Nations. 4. In 1999, the Sub-Commission changed its name to “Sub-Commission on the Promotion and Protection of Human Rights”, indicating both a widening of its mandate and also an explicit affiliation with the Commission on Human Rights to which it was subordinate. 5. The three spaces mentioned are not the only ones within the system in which mention is made of minorities. However, I have preferred to concentrate on the central organs in the treatment of these questions and only to invoke those other discursive spaces when they affect the debates that will be analyzed subsequently. 6. The Commission would afterwards maintain the previously established mandate and ask the Sub-Commission to pursue its work within the frame of reference it had been given. One can see a whole lot of discussions appearing and already, from the very start of the Sub-Commission as a constituted space, a kind of dissension – not only with regard to its mandate but also with regard to its relations with the Commission – is evident. 7. By illustrative, I mean above all that this document is in its way representative of many other documents of this kind that I have been able to catalog in my research – documents that are organized in the same discursive mode. The choice of this specific document, however, can also be explained in that it seems to illustrate particularly clearly the structural and institutional issues of the Sub-Commission. 8. The elements highlighted in grey correspond to the mention of UN organs; the circles indicate different discursive modes used in the formulation of the resolution; dotted underlining indicates structures within the Sub-Commission; the double underlining refers to the manner of working within the space concerned. 9. Continued in the logic of the mandate concerning the objectivity of the Sub-Commission’s studies. 10. This functioning, however, although very similar to that of the Commission and close to that of the Economic and Social Council, cannot on its own claim to embody all the mechanisms of discussion. Therefore, the different investigations of this section are to be considered as exemplifying an institutional functioning. 11. This does not mean that they are not important!

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12. This section and the following one have been separately published by the author of this work (cf. Duchˆene 2004). 13. A French document is attached to the one in English. Its title is Manuel a` l’usage des r´edacteurs de comptes rendus analytiques. These are two distinct documents. While they certainly have evident discursive and thematic connections, they differ at several levels. It is not a matter of translation. I have therefore decided to include the following analyses passages from the French manual when it gives more details than the English version. The French document is, in fact, longer and more precise in some formal aspects than the English document. We should also note that the French document pre-dates the English equivalent. 14. We can hypothesize that the term “essential” implies a fusion of “accurate” and “concise”. 15. The underlined passages were omitted in the SR. 16. The black bars conceal the names and bodies cited in order to retain anonymity of the data, as requested by the department that provided me with these extracts. Speakers are designated in the following manner: L1= NGO Representative; L2= Expert of the Sub-Commission; E1, E2 = those mentioned in speeches, who are all experts of the Sub-Commission. 17. The entire document is available online: http://www.unhchr.ch/udhr/lang/eng.htm. 18. The crossed out elements in the left-hand section correspond to omissions; the elements highlighted in grey correspond to reformulations; the underlined elements in the right-hand section correspond to additions. 19. This comment was one of those that accompanied the presentation of the article (cf. above). 20. In the French versions, we can see a passage from “r´egime particulier” (Proposition 2) to “traitement differentiel” (Proposition 3), which does not occur in the English versions. 21. Mr. Pavlov was probably referring to a particular paragraph in the preamble of the United Nations Charter, which I include here: “We the people of the United Nations determined to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small” Charter of the United Nations, Preamble. 22. This is also one of the criticisms of both the Drafting Committee and Sub-Commission’s propositions. The “imperfection” mentioned here is linked to the absence of an explicit mention of “national minorities”. 23. It is interesting to observe the strong similarity of the discourses of the Communist States in terms of both argument and form. This clearly highlights their ideological unity. 24. Yugoslavia and Denmark had also proposed the introduction of an article in this matter, although this did not really become a subject of discussion. I have cited below the propositions made by Yugoslavia and Denmark. Denmark: “All persons belonging to a racial, national, religious or linguistic minority have the right to establish their own schools and receiving teaching in the language of their own

Notes

25. 26.

27.

28.

29.

30. 31.

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choice” (A/C.3/307/Rev.1/Add.2).Yugoslavia:“Any national minority, as an ethnical community, has the right to the full development of its ethnical culture and the free use of its language. It is entitled to have these rights protected by the State” (A/C.3/307/Rev.1./Add.1). The entire document is available online: http://www.unhchr.ch/html/menu3/b/a ccpr.htm. In my attempt to understand the ideological reasons for the existence of the Article, I do not intend to enter into the legal debates about its interpretation (there is extensive literature on this subject, for example, de Varennes 1996). Rather, I consider the Article to be a discursive event that allows us to understand the way in which minorities are constructed discursively within the United Nations. Initially, the General Assembly had proposed the constitution of an International Covenant on Human Rights but, during the course of discussions, it became apparent that economic, social and cultural rights had to be separated from civil and political rights. Thus, two instruments – distinct but attached to each other – entered into discussion. This distinction allows us to understand, in the extracts that will be analyzed, the presence of either the term “Covenant on Human Rights” or “Covenant on Civil and Political Rights”. When the first debates occurred in the Sub-Commission, the distinction did not exist; it came later. Minority rights would then be conceived of as relevant to civil and political rights, which had not been the case at the outset. It must be understood that the question of minorities is primarily related to state political issues, rather than to the more nebulous and problematic issue of social, economic and cultural rights. In the analysis that follows, my source text is the first text submitted to, and discussed by, the Human Rights Commission: that is, the document submitted in 1950. Between 1949 and 1951, there were some modifications of the document in question. The analysis of these slight changes would be long and painstaking but would not necessarily elucidate the discussion presented here, which seeks to show how these documents gave rise to the creation of Article 27 in the context of the SubCommission. I shall, however, raise certain elements of earlier debates in order to clarify some important choices with a view to developing my argument. I wish to emphasize immediately that this is only a draft resolution, as the SubCommission did not have the capacity to establish any resolution without it having first been accepted by the Human Rights Commission and then by the bodies superior to the Commission. In the following section, we shall see how these draft resolutions were received by the Commission. The enumeration of paragraphs is not in the original document: I have inserted numbers to facilitate the analysis of this long passage. This is expressed in the Sub-commission’s report of 1950: “It is undesirable to refer, in the definition of minorities, to any possible risks or dangers involved in the protection of minorities but the complexities of the problem of the protection should be set out” (E/CN.4/Sub.2/119, p.15).

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32. Here we should note the presence of a numerical criterion, but in the sense of a necessary ratio! 33. I should make it clear that these were not the only states involved in these discussions. Other delegations, not necessarily from South America, used similar strategies. Spain, for example: “M. GARCIA SAEZ (Spain) explained that there was no minority problem in his country, where the British, German, Jewish or other colonies were numerically insignificant and were left entirely free to conduct their own affairs.” (A/C.3/SR.1103). As we can see, the Spanish representative bases her justification in this way, while recognizing “colonies” for which the state provides rights. The replacement of the term “minority” with “colony” reveals the ambiguity of the term; it allows the existence of minorities within the state to be denied, while the existence of foreign groups is recognized. The same procedure from the Guinean delegation: “Mrs. Martin (Guinea) said she was in favour of article 25. The problem of minorities did not arise in her country, where there is only a colony of Syrians and Lebanese, who had the same rights and obligations as Guineans” (A/C.3/SR.1103). And from Mali: “Mrs. ROUSSEAU (Mali) said that her delegation would also vote for article 25 in its present form. Mali had no ethnic minorities and hence no minority problem;” (A/C.3/SR.1104). 34. The main issue, in fact, is about “democracy” as the essential condition of decolonization. This was comprised by the model of the Western state, which led to the reproduction of the nation-state. 35. The speeches by these representatives were strongly criticized by some delegations, for example, the Moroccan representative: “any benefits derived from colonialism were purely accidental and negligible by comparison with what the colonial countries had achieved since independence” (A/C.3/SR. 1104). Or, the representative of Saudi Arabia: “the negative side of colonialism far outweighed the positive side” (A/C.3/SR. 1104). These objections to the statements of the representatives from Ghana and Upper-Volta gave rise to a lively debate in which the speakers who had begun the argument reiterated the denunciation of colonialism, while reaffirming the total respect for these rights by the colonialists. 36. It became Article 27 after some re-arrangement of the articles of the Covenant. 37. The entire document is available online: http://www.unhchr.ch/html/menu3/b/d minori.htm. 38. The use of the expression “non-problem” is rather surprising, as debates on minority rights have always focused precisely on these points. Its use here, however, is clearly strategic: the expert has to resolve these points once and for all, in order to be able to attain agreement on the definition. 39. The entire document is available online: http://www.unhchr.ch/html/menu3/b/d minori.htm. 40. See also commentaries on this document and other, non-UN mechanisms regarding minority rights: Alfredsson (1993), Horn (1994), Hannum (1998).

Notes

269

41. Highlighted in grey are the references to “language” and the terms directly attached to it at the categorical level.The dotted underlining indicates the subject of the discourse (to which the discourse is addressed). The continuous underlining indicates active verbal constructions relating to the object of rights. 42. The Declaration makes no explicit connections between these correspondences, in that it does not associate a particular type of right with a particular category of minority. This point also enables us to understand why language appears in an isolated manner in extract (d), thus becoming a potentially transversal component. 43. The same applies to culture and religion. 44. The information was, in fact, submitted according to various articles and paragraphs of the Declaration, and was fully integrated in the logic of the document. The inventory thus followed the objective of examining the practices in relation to the Declaration, thereby also justifying the document. 45. Here, I am using the reports of the Working Group, as the summary records have not been made public. 46. The issue of language arose in other forms in the reports of experts, particularly those of de Varennes, often referred to as the expert in discussions of the Drafting Committee. 47. The question of language has taken on different forms of argument over the years, with the emergence of the concepts of multi-culturalism and diversity and the evolution of various extra-UN agencies (like the European Union and the Charter of Minority Languages) and of UN agencies (in particular, UNESCO). Language is thus evoked in relation to identity, the necessity of preserving the cultural patrimony of language, and as an essential factor in the multicultural educational context. 48. We should note, moreover, that the suggested attempts emanated from the Working Group by the intermediary of Mr. Chernichenko. The proposed document was formulated as multiple articles which, following the definition, introduced certain clauses of specification. The definition was, however, rejected once again; the members of the Working Group considered that it was not in any way indispensable to the continuation of their work (see E/CN.4/Sub.2/AC.5/1996/WP.1).

References Ab´el`es, Marc 1992 La vie quotidienne au parlement europ´een. Paris: Hachette. 1999 Pour une exploration des s´emantiques institutionnelles. Ethnologie franc¸ aise 29 (4), 501–511. 2000 Un ethnologue a` l’assembl´ee. Paris: Jacob. Ab´el`es, Marc and Ir`ene Bellier 1996 La Commission europ´eenne: du compromis culturel a` la culture politique du compromis. Revue Fran¸caise de Science Politique 46, 431–456. Abi-Saab, Georges 1981 The concept of international organization: a synthesis. In Abi-Saab, G. (ed.), The Concept of International Organization. Paris: UNESCO, 9–24. Alfredsson, Gudmundur 1993 Minority rights: A summary of existing practice. In Phillips, A. and A. ˚ bo/London: A ˚ bo Rosas (eds.), The UN Minority Rights Declaration. A Akademi, 73–79. Allardt, Eric 1992 Qu’est-ce qu’une minorit´e linguistique? In Giordan, H. (ed.), Les minorit´es en Europe. Paris: Kim´e, 45–54. Auburger, Leopold 1990 Linguistic minority relations. Sociolinguistica 4, 169–190. Bakhtine, Mikael 1970 Probl`emes de la po´etique de Dostoievski. Lausanne: Edition L’Age d’Homme. Bellier, Ir`ene 1995 Moralit´e, langue et pouvoirs dans les institutions europ´eennes. Social Anthropology 3 (3), 235–250. 1999 L’invention de la “culture de Lom´e”. La s´emantique du dialogue dans les institutions europ´eennes. Ethnologie fran¸caise 29 (4), 529–541. 2000 The European Union, identity politics and the logic of interests’ representation. In Bellier, I. and T. M. Wilson (eds.), An Anthropology of the European Union. Building, Imagining and Experiencing the New Europe. Oxford/New York: Berg, 53–73. Bellier, Ir`ene and Thomas M. Wilson 2000 Building, imagining and experiencing Europe: Institutions and identities in the European Union. In Bellier, I. and T. M. Wilson (eds.), An Anthropology of the European Union: Building, Imagining and Experiencing the New Europe. Oxford/New York: Berg, 1–27. Berger, Peter L. and Thomas Luckmann 1967 The Social Construction of Reality. Garden City; NY: Doubleday.

References

271

Billig, Michael 1995 Banal Nationalism. London: Sage. Blommaert, Jan 2001 The Asmara Declaration as a sociolinguistic problem: Reflections on scholarship and linguistic rights. Journal of Sociolinguistics 5 (1), 131–142. 2005 Discourse. Cambridge: Cambridge University Press. Blommaert, Jan (ed.) 1999 Language Ideological Debates. Berlin/New York: Mouton de Gruyter. Boden, Deirdre 1994 The Business of Talk. Cambridge: Polity. Bokotola, Isse Omanga 1992 L’Organisation des Nations Unies et la protection des minorit´es. Brussels: Etablissements Emile Bruylant. Bourdieu, Pierre 1980 Le sens pratique. Paris: Les Editions de minuit. 1982 Ce que parler veut dire: l’´economie des e´ changes linguistiques. Paris: Fayard. 2001 Langage et pouvoir symbolique. Paris: Editions Fayard, Edition du Seuil. Boutet, Josiane 1994 Construire le sens. Bern: Peter Lang Brucan, Silviu 1981 Power and conflict in the study of international organization. In Abi-Saab, G. (ed.), The Concept of International Organization. Paris: UNESCO, 146–169 Cooper, Robert Leon 1989 Language Planning and Social Change. Cambridge/New York: Cambridge University Press. Coupland, Nikolas, Christopher Candlin and Srikant Sarangi (eds.) 2001 Sociolinguistics and Social Theory. Harlow/New York: Longman. Cummins, Jim 2000 Language, Power and Pedagogy: Bilingual Children in the Crossfire. Clevedon/Buffalo, NY: Multilingual Matters. de Senarclens, Pierre 2002 Contraintes politiques et institutionnelles du discours des Nations Unies. Nouveaux cahiers de l’IUED 13, 133–144. de Varennes, Fernand 1996 Language, Minorities and Human Rights. The Hague: Martinus Nijhoff Publishers. Desprez, Christine 1994 Les enfants bilingues. Paris: CREDIF/Didier.

272

References

Duchˆene, Alexandre 2000 La d´esignation de la personne bilingue: approche linguistique et discursive. TRANEL 32, 91–113. 2001 Le plurilinguisme dans ses aspects linguistiques, affectifs et sociaux: Quelques e´ l´ements de r´efl´exions. Langage et Pratiques 28, 1–11. 2004 La construction institutionnelle des discours: id´eologies et pratiques dans une organisation supranationale. TRANEL 40, 93–115. Duchˆene, Alexandre and Monica Heller (eds.) 2007 Discourses of Endangerment. Interest and Ideology in the Defence of Language. London/New York: Continuum. Duchˆene, Alexandre and Francine Rosenbaum 1999 La consultation logop´edique comme espace de rencontre des langues minoritaires et majoritaires. Bulletin Suisse de Linguistique Appliqu´ee 69 (2), 87–95. Eichelberger, Clark Mill 1970 UN: The First Twenty-five Years. New York/Evanston: Harper and Row. Fenet, Alain 1985 La question des minorit´es dans l’ordre du droit. In Chaliand, G. (ed.), Les ´ Minorit´es a` l’ˆage de l’Etat-nation. Paris: Fayard, 27–90. Ferguson, Charles 1959 Diglossia. Word 15, 325–340. Fishman, Joshua 1991 Reversing Language Shift. Clevedon/Avon: Multilingual Matters. 2002 Endangered minority languages: Prospects for sociolinguistic research. International Journal on Multicultural Societies 4 (2), 270–275. Fishman, Joshua (ed.) 1972 Readings in the Sociology of Language. Amsterdam: Mouton. Foucault, Michel 1961 Histoire de la folie. Paris: Presse Universitaire de France. 1972 The Archaeology of Knowledge. New York: Routledge. [Published in French in 1969.] 1971 L’ordre du discours. Paris: Gallimard. 1976 Histoire de la sexualit´e. Paris: Gallimard. Freeland Jane and Donna Patrick (eds.) 2004 Language Rights and Language Survival. Manchester: St. Jerome Publishing. Garfinkel, Harold 1984 Studies in Ethnomethodology. Cambridge: Cambridge University Press. Gerbet, Pierre 1981 Rise and development of international organization: a synthesis. In AbiSaab, G. (ed.), The Concept of International Organization. Paris: UNESCO, 27–49.

References

273

Giordan, Henri 1992 Droits des minorit´es, droit linguistiques et Droits de l’Homme. In Giordan, H. (ed.), Les minorit´es en Europe. Droits linguistiques et Droits de l’Homme. Paris: Kime, 9–39. Goffman, Erving 1959 The Presentation of Self in Everyday Life. New York: Anchor Books. Goldstein, Tara 1997 Two Languages at Work: Bilingual Life on the Production Floor. Berlin/ New York: Mouton de Gruyter. Grosjean, Fran¸cois and Bernard Py 1991 La restructuration d’une premi`ere langue: l’int´egration des variantes de contact dans la comp´etence de migrants espagnols a` Neuchˆatel (Suisse). La Linguistique 27 (2), 35–60. Gumperz, John 1981a Discourse Strategies. Cambridge: Cambridge University Press. Gumperz, John (ed.) 1981b Language and Social Identity. Cambridge: Cambridge University Press. Hannum, Hurst 1998 New minority rights for the twenty-first century. In Danieli, Y., E. Stamatopolou and L. J. Dias (eds.), The Universal Declaration of Human Rights: Fifty Years and Beyond. Amitiville, NY: Baywood, 163–173. Haugen, Einar 1987 Blessings of Babel: Bilingualism and Language Planning – Problems and Pleasures. Berlin/New York: Mouton de Gruyter. Heller, Monica 1999a Alternative ideologies of la francophonie. Journal of Sociolinguistics 3 (3), 336–359. 1999b Heated language in a cold climate. In Blommaert, J. (ed.), Language Ideological Debates. Berlin/New York: Mouton de Gruyter, 143–170. 1999c Ebonics, language revival, la qualit´e de la langue and more: What do we have to say about the language debates of our time? Journal of Sociolinguistics 3 (2), 260–266. 2001 Undoing the micro/macro dichotomy: Ideology and categorization in a linguistic minority school. In Candlin, C., N. Coupland and S. Sarangi (eds.), Sociolinguistics and Social Theory. London: Longman, 212–234. 2002a L’´ecologie et la sociologie du langage. In Boudreau, Annette, Lise Dubois, Jacques Maurais and Grant MacConnell (eds.), L’´ecologie des langues. M´elanges William Mackey. Paris: L’Harmattan, 175–192. 2002b El´ements d’une sociolinguistique critique. Paris: LAL, Didier. 2003 Globalization, the new economy, and the commodification of language and identity. Journal of Sociolinguistics 7 (4), 473–492.

274

References

2004

Analysis and stance regarding language and social justice. In Freeland, J. and D. Patrick (eds.), Language Rights and Language Survival. Manchester: St Jerome Publishing, 283–286. Heller, Monica and Normand Labrie 2003 Discours et identit´es. La francit´e canadienne entre modernit´e et mondialisation. Cortil-Wodon: Editions modulaires europ´eennes, InterCommunications. Heraud, Guy 1978 Notion de minorit´e linguistique. In Travaux du centre international de recherch´e sur le bilinguisme (eds.), Minorit´es Linguistiques et Interventions: essai de typologie: compte rendu du Colloque sur les minorit´es linguistiques tenu a` l’Universit´e Laval du 15 au 18 avril 1977. Quebec: Les Presses de l’Universite de Laval, 14–69. Higonnet, Patrice 1980 The politics of linguistic terrorism and grammatical hegemony during the French Revolution. Social History 5, 41–69. Hobsbawm, Eric John 1990 Nations and Nationalism since 1780: Programme, Myth, Reality. Cambridge: Cambridge University Press. Horn, Frank 1994 Recent attempts to elaborate standards on minority rights. In Bring, O. and S. Mahmoudi (eds.), Current International Law Issues. Nordic perspectives. Dordrecht/Boston/Lancaster: Martinus Nijhoff, 81–108. Hutton, Christopher 1999 Linguistics and the Third Reich. Mother-tongue Fascism, Race and the Science of Language. London/New York: Routledge. 2004 Linguistique et anthropologie raciale en Allemagne nazie: sciences contradictories ou sciences compl´ementaires? In S´eriot, P. and A. TabouretKeller (eds.), Le discours sur la langue sous les r´egimes autoritaires. Lausanne: Cahiers de l’ILSL, Universit´e de Lausanne, 65–80. Hymes, Dell H. 1973 Toward linguistic competence. Working Papers in Sociolinguistics. Dept. of Anthropology, University of Texas 16. Jaffe, Alexandra 1999 Ideologies in Action: Language Politics on Corsica. Berlin/New York: Mouton de Gruyter. Kasuya, Kesuye 2001 Discourses of linguistic dominance: A historical consideration of French language ideology. International Review of Education 47 (3-4), 235–251. Klinkenberg, Jean-Marie 2001a La langue et le citoyen. Paris: PUF. 2001b La conception essentialiste du Fran¸cais et ses cons´equences. R´eflexions pol´emiques. Revue Belge de Philologie et d’Histoire 79, 805–824.

References

275

Kloss, Heinz 1969 Grundfragen der Ethnopolitik im 20. Jahrhundert; die Sprachgemeinschaften zwischen Recht und Gewalt. Vienna: W. Braum¨uller. Labrie, Normand 1993 La construction linguistique de la communaut´e europ´eenne. Paris: Champion. Laforest, Marty 1999 Can a sociolinguist venture outside the university? Journal of Sociolinguistics 3 (2), 276–282. Latan´e, John H. (ed.) 1932 The Development of the League of Nations Idea, Vol. 1. New York: MacMillan. Latour, Bruno ´ 1989 La science en action. Paris: Editions la D´ecouverte. Le Page, R. and Tabouret-Keller 1985 Acts of Identity. Cambridge: Cambridge University Press. L¨udi, Georges 1990a Diglossie et poyglossie. In Holtus,G., M. Metzeltin and A. Schmitt (eds.), Lexikon der Romanistischen Linguistik, Vol. V/1. T¨ubingen: Niemeyer, 307–334. 1990b Les migrants comme minorit´e linguistique en Europe. Sociolinguistica 4, 113–135. 1991 Construire ensemble les mots pour le dire. A propos des origines des connaissances lexicales. In Dausendsch¨on-Gay, U., E. G¨ulich and U. Krafft (eds.), Linguistische Interaktionsanalysen. T¨ubingen: Niemeyer, 193–224. 1992 Internal migrants in a multilingual country. Multilingua 11 (1), 45–43. L¨udi, Georges and Bernard Py 2003 Etre bilingue. Bern/Berlin/Brussels: Peter Lang. Mackey, William 1983 The generalization of models of languages in contact. In Nelde, P. (ed.), Theorien, Methoden und Modelle der Kontaktlinguistik. Bonn: D¨ummler. Maffi, Luisa 2000 Linguistic and biological diversity: The inextricable link. In Phillipson, R. (ed.), Rights to Language. Equity, Power and Education. Celebrating 60th Birthday of Tove Skutnabb-Kangas. Mahwah, NJ/London: Lawrence Erlbaum. Maingueneau, Dominique 2002 Les rapports des organisations internationales: un discours constituant? Nouveaux cahiers de l’IUED 13, 119–132. Mamadouh, Virginie 1999 Beyond nationalism: Three visions of the European Union and their implications for the linguistic regime of its institutions. GeoJournal 48 (2), 133–144.

276

References

Mangone, Gerard Joseph 1954 A Short History of International Organization. NewYork/Toronto/London: McGraw-Hill. Mart´ın Rojo, Luisa 2001 New developments in discourse analysis: Discourse as social practice. Folia Linguistica 35 (1-2), 41–78. Mart´ın Rojo, Luisa and Galibando Pujol ¨ 2002 Michel Foucault. In Verschueren, J., J.-O. Ostman, J. Blommaert and C. Bulcaen (eds.), Handbook of Pragmatics.Amsterdam: John Benjamins. Matthey, Marinette and Jean-Fran¸cois Pietro 1997 La soci´et´e plurilingue: utopie souhaitable ou domination accept´ee? In Boyer, H. (ed.), Plurilinguisme: “contact” ou “conflit” de langues? Paris: L’Harmattan, 133–190. Maurais, Jacques 1997 Regional majority languages, language planning, and linguistic rights. International Journal of Sociology of Language 127, 135–160. May, Stephen 2003 Misconceiving minority language rights: Implications for liberal political theory. In Kymlicka, W. and A. Patten (eds.), Language Rights and Political Theory. Oxford: Oxford University Press, 123–152. 2004 Rethinking linguistic human rights: Answering questions of identity, essentialism and mobility. In Freeland, J. and D. Patrick (eds.), Language Rights and Language Survival. Sociolinguistic and Sociocultural Perspectives. Manchester/Northampton, MA: St. Jerome Publishing, 35–53. 2005 Language rights: Moving the debate forward. Journal of Sociolinguistics 9 (3), 319–347. McDonald, Maryon 1989 “We are not French”: Language, Culture and Identity in Brittany. London: Routledge. Mondada, Lorenza 2000 La construction du savoir dans les discussions scientifiques. Apports de la linguistique interactionnelle et de l’analyse conversationnelle a` la sociologie des sciences. Revue Suisse de Sociologie 26 (3), 615–636. 2001 La concertation entre experts: diagnotics en visioconf´erence. In P`ene, S., A. Borseix and B. Fraenkel (eds.), Le langage dans les organisations. Une nouvelle donne. Paris: L’Harmattan, 221–244. 2004 La construction du savoir scientifique dans l’interaction plurilingue. Cahiers du Fran¸cais Contemporain 9, 15–27. Muehlmann, Shaylih and Alexandre Duchˆene 2007 Beyond the nation-state: International agencies as new sites of discourses on bilingualism. In Heller, M. (ed.), Bilingualism: A Social Approach. London/New York: Pergamon, 96–110.

References

277

Muntigl, Peter 2000 The European Union: Policy-making through organizational discursive practices. In Muntigl, P., G. Weiss and R. Wodak (eds.), European Union Discourses on Un/employment.Amsterdam/Philadelphia: Benjamins, 1–25. Muntigl, Peter, Gilbert Weiss and Ruth Wodak (eds.) 2000 European Union Discourses on Un/employment. Amsterdam/Philadelphia: Benjamins. Nicol, Davidson 1980 Foreword. In Dimitrov, T. D. and L. Marulli-Koenig (eds.), International Documents for the 80’s: Their Role and Use. Proceedings of the Second World Symposium on International Documentation. Brussels – 1980. Pleasantville, NY: UNIFO Publishers, xi–xv. Ochs, Eleanor 1979 Transcription as theory. In Ochs, E. and B. B. Schieffelin (eds.), Developmental Pragmatics. New York: Academic Press, 43–72. Philips, Susan U. 1998 Language ideologies in institutions of power. A commentary. In Schieffelin, B., K. A. Woolard and P. V. Kroskrity (eds.), Language Ideologies. Practice and Theory. New York/Oxford: Oxford University Press, 211–225. Phillipson, Robert and Tove Skutnabb-Kangas 1995 Linguistic rights and wrongs. Applied Linguistics 16 (4), 483–504. Piganiol, Pierre 1974 R´eflexions avant les d´ebats. Paper presented at the Proceedings of the International Symposium on the Documentation of the United Nations and other Intergovernmental Organizations, 21–23 August 1972, The Hague. Piller, Ingrid 2002 Bilingual Couples Talk: The Discursive Construction of Hybridity. Amsterdam: Benjamins. Rickford, John R. 1999 The Ebonics controversy in my backyard: A sociolinguist’s experiences and reflections. Journal of Sociolinguistics 3 (2), 267–275. Rist, Gilbert 2002 Le texte pris aux mots. Nouveaux Cahiers de l’IUED 13, 25–42. Rouget, Didier 2000 Le guide de la protection internationale des droits de l’Homme. Paris: La Pens´ee Sauvage. S´eriot, Patrick 2004 La langue, le pouvoir et le corps. In S´eriot, P. and A. Tabouret-Keller (eds.), Le discours sur la langue sous les r´egimes autoritaires. Lausanne: Cahiers de l’ILSL, Universit´e de Lausanne, 231–260.

278

References

Silverstein, Michael 1998 The uses and utility of ideology. In Schieffelin, B. B., K. A. Woolard and P. V. Kroskrity (eds.), Language Ideologies: Practice and Theory. New York/Oxford: Oxford University Press, 123–145. Skutnabb-Kangas, Tove 1998 Human rights and language policy in education. In Wodak, R. and D. Corson (eds.), The Encyclopedia of Language and Education. Volume Language Policy and Political Issues in Education. Dordrecht: Kluwer, 55–65. 2002 Some philosophical and ethical aspects of ecologically based language planning. In Boudreau, A., L. Dubois, J. Maurais and G. McConnel (eds.), L’´ecologie des langues. M´elanges William Mackey. Paris: L’Harmattan, 23–42 Skutnabb-Kangas, Tove and Jim Cummins (eds.) 1988 Minority Education: From Shame to Struggle. Clevedon: Lawrence Erlbaum. Skutnabb-Kangas, Tove and Robert Phillipson 1995 Linguistic Human Rights. Overcoming Linguistic Discrimination. Berlin/ New York: Mouton de Gruyter. 1996 Linguicide and linguicism. In Geobl, H., P. Nelde, Z. Stary and W. W¨olck (eds.), Handbook of Linguistics and Communication Science, Contact Linguistics. Berlin and New York: Walter de Gruyter, 667–674. Skutnabb-Kangas, Tove, Robert Phillipson and M. Kontra 2001 Reflections on scholarship and linguistic rights: A rejoinder to Jan Blommaert. Journal of Sociolinguistics 5 (1), 143–155. Smith, Dorothea E. 1990 Texts, Facts, and Femininity. Exploring the Relations of Ruling. London/ New York: Routledge. Staline, Joseph 1945 Le Marxisme et la question nationale et coloniale. Alger: Edition La libert´e. Swiggers, Pierre 1990 Ideology and “clarity” of French. In Joseph, J. and T. Taylor (eds.), Ideologies of Language. London: Routledge, 112–130. Tabory, Mala 1980 Multilingualism in International Law and Institutions. Alphen aan den Rijn/Rockville: Sitjhoff and Noordhoff. Tabouret-Keller, Andr´ee 2004 Les m´etaphores multiples de l’expression “langue maternelle”: un projet de travail. In S´eriot, P. and A. Tabouret-Keller (eds.), Le discours sur la langue sous les r´egimes autoritaires. Lausanne: Cahiers de l’ILSL, Universit´e de Lausanne, 277–288.

References

279

Tangac, Ren´e 1985 La r´eponse sovi´etique au probl`eme des minorit´es. In Chaliand, G. (ed.), ´ Les Minorit´es a` l’ˆage de l’Etat-nation. Paris: Fayard. Tardy, Thierry 2000 L’h´eritage de la SDN, l’espoir de l’ONU. Le rˆole de l’ONU dans la gestion de la s´ecurit´e internationale. Revue Etudes internationales 31 (4), 691–708. Thornberry, Patrick 1993 The UN Declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities: Background, analaysis and observations. In Phillips, A. and A. Rosas (eds.), The UN Minority Rights ˚ bo/London: A ˚ bo Akademi, 11–71. Declaration. A Urban, Greg 1996 Entextualization, replication and power. In Silverstein, M. and G. Urban (eds.), Natural Histories of Discourses. Chicago: University of Chicago Press, 21–44. Valentine, John R. 2004 Toward a definition of national minority. Denver Journal of International Law and Policy 32, 445–473. Weiss, Gilbert 2000 Researching the European Union. In Muntigl, P., G. Weiss and R. Wodak (eds.), European Union Discourses on Un/employment.Amsterdam/Philadelphia: Benjamins, 51–71. Whittaker, David J. 1997 United Nations in the Contemporary World. London/New York: Routledge. Wodak, Ruth 2000 From conflict to consensus? The co-construction of a policy paper. In Muntigl, P., G. Weiss and R. Wodak (eds.), European Union Discourses on Un/employement. Amsterdam/Philadelphia: Benjamins, 73–114. Woolard, Kathrin 1998 Introduction: Language ideology as field of inquiry. In Schieffelin, B. B., K. A. Woolard and P. V. Kroskrity (eds.), Language Ideologies. Practice and Theory. New York/Oxford: Oxford University Press, 3–47. Zuckermann, Moshe 1999 Gedenken und Kulturindustrie. Ein Essay zur neuen deutschen Normalit¨at. Berlin: Philo Verlagsgesellschaft.

Index

Ab´el`es 88 access 12, 16, 18, 201 assimilation 7, 15–16, 123, 133–134, 136, 138, 141–145, 153, 157, 175, 178, 185, 189–190, 192, 197–198, 201–202, 211, 213–214, 222, 227, 257, 260 authority 77, 118 Bakthine 30 Bellier 88 Berger and Luckman 26 Billig 28 Blommaert 9, 28 Boden 95 Bokotola 157, 204 Bourdieu 12 bureaucracy 49, 92, 99 bureaucratic discourse 90 bureaucratic institution 88–89, 99, 117 capitalism 153, 260 (see also state, capitalist) categorization 8, 43, 134–135 class 13–14 colonialism 144, 184, 200–201 Commission on Human Rights 63ff., 137ff., 180ff. community 235–236 international 3, 53 linguistic 6 national 187, 190, 244 control 68–69, 116 in language 95, 100, 108 institutional 30, 99, 107, 208 of power 85 Cooper 7 De Varennes 52–53 definition of minority 72, 126, 130–131, 157, 164–168, 171–180, 182, 198,

206, 210, 213–214, 218–236, 239–242, 254, 261 diglossia 11 discourse 28ff. discrimination 8, 17, 54, 73, 79–80, 134, 185, 252, 261, 263 non-discrimination 51, 65, 70, 73, 82, 120, 135, 183, 187, 192, 218, 240, 244 discursive events 35, 36, 38–39, 41–42, 159, 194, 203, 205–207, 249, 256 movements 102, 109, 124ff., 167 practice 88, 91 production 1, 5, 13, 18, 39, 75, 88, 90, 99, 119 spaces 1, 34, 36, 38–41, 43–48, 61–62, 85, 87, 89, 97, 253, 259 diversity 8, 11, 15–16, 198, 200, 257 bio- 1, 8 linguistic 5, 7–8, 11, 91, 95–96 dominant discourse 25 language 11 entextualization 99 equality 53, 120, 134–135, 138–139, 144, 156, 174, 184, 188, 218, 228, 244, 263 essentialism 1, 8, 41, 118, 257, 263 ethnicity 13, 18, 65, 241 ethnomethodology 118 exclusion 12–13, 16, 84, 224, 242, 260, 263 of an article 122, 135 of minorities 136, 154, 174 expertise 69, 72–73, 78, 82, 153, 155, 180 fascism 55 anti-fascism 14

Index Fishman 6, 8 Foucault 24–26, 29 General Assembly 58–70, 147ff., 181, 202 Goffman 91 Gumperz 11 Haugen 7 hegemony 6, 239 Heller 7, 9, 15–16, 18, 25, 28, 38–39, 100 heterogeneity 15, 32, 121, 258 heteroglossy 41, 117–118, 263–264 hierarchy 12, 65, 77, 94, 120, 236 historicity 23–24, 31, 39–40, 90, 262 Hobsbawm 13–14, 45 homogeneity 3, 13–14, 16, 126, 142, 156–157, 192, 234, 246, 258, 260 homogenization 12, 16–17, 119, 153, 257–258, 261, 263 Hutton 14, 25 Hymes 10–11 identity 7, 11, 237–238, 240 cultural 114 national 16 ideology 3, 24, 26–28, 30–31, 38, 88 capitalist 147, 152 communist 29 147, 152 international 1, 28, 39–40, 43, 67, 85, 88, 92, 99–100, 108, 117, 119, 155, 206, 219, 258 nationalist 16, 54, 189, 203, 260, 262 language 3, 9, 12, 18, 23, 28, 118, 207, 246, 257 positivist 72, 78, 118 state 1, 9, 14. 16, 23, 28, 146, 156, 171, 246, 257 inclusion 11–12 discursive 240, 245 of an article 122, 124, 128, 135, 216, 143, 80 of minorities 41–42, 124, 259–260 indigenous people/community 190, 201, 220–222

281

inequality 21, 184 institution 19–33, 35–42, 43–45, 47–67, 70, 74, 77–81, 85, 88–95, 97–101, 106–110, 117–119, 120–123, 155, 205, 209, 260–262 international 2, 19, 44–45, 52, 54, 58, 88, 94, 98, 258, 261 institutionalization 120 International Covenant on Civil and Political Rights 159ff. international instrument 22, 36, 39, 41, 69, 120–121, 209, 213, 239 internationalism 28, 46 intertextuality 34–35, 75 Jaffe 15, 25, 28 Klinkenberg 12 Kloss 7 knowledge production 24, 89, 100 language ideologies (see ideology) revival 7, 245 League of Nations 19–20, 44, 46–59, 64, 68, 73, 86, 120, 123, 133, 163, 168, 173, 240, 258–259 legislation international 132 national 201, 238, 251 legitimacy 61, 67, 81, 98, 105, 113, 145, 192, 209, 248, 262 Le Page 11 linguistic anthropology 1, 39, 118 L¨udi 11 Maingueneau 88, 117 majority group 17, 87, 188 marginalized group 84, 190, 192, 242 May 9 McDonald 15 minority ethnic 51, 73, 171, 205, 241, 246 language 6, 114, 167, 202, 245–246, 254 movement 15–16

282

Index

national 51, 123, 146, 150, 177, 183, 185, 189, 218, 224, 228, 241, 246, 251, 254 religious 51, 218, 246 treaties 51–54, 64, 86, 120, 125, 156, 163, 173, 222, 258 mother-tongue 243, 245 nationalism 13–16, 16, 21, 46, 54, 258 national language 11 Nationality 7, 13, 51, 146, 152, 156–157 Nazism 55 objectivity 100–102 organization 20, 22, 44, 47, 54, 95 international 1–3, 45, 85–86, 88, 90 particularism 159ff. performance 91 Philips 23 Phillipson 7 plurilingualism 6 protectionist discourse 15, 262 race 13–14, 16, 65, 73, 173, 241, 243 reproduction 3, 12, 16, 40, 146, 180, 203–204, 207, 263 rights collective 138–140, 143, 183, 221, 230, 234–236, 239 human 2–3, 8, 22, 57ff., 120ff. individual 138, 140, 143, 149, 178, 183, 193, 221, 234–236 linguistic 7, 9, 51, 166, 168–171, 177, 178, 180, 242, 244–245, 257 minority 64, 81, 123–125, 209ff., 260–261 self-determination 123, 181–182, 185, 194, 204, 234, 260

separatism 14–16, 123. 174, 187–189, 192–193, 214 Silverstein 28 Skutnabb-Kangas 7–8 Smith 38, 88, 99 sociolinguistics 5, 18, 25, 28, 39, 263 critical 5, 10, 15, 18 sovereignty 20, 46, 56, 66–67, 85, 133, 140, 152, 193, 218 Staline 145 state capitalist 41, 143–144, 192, 260 communist 153–154, 156 interest 121–122, 135, 159ff., 217, 230, 232ff., 246, 256, 261–262 Sub-Commission on the Prevention of Discrimination and the Protection of Minorities 69ff., 124ff., 160ff., 209ff. mandate 69–73 method of work 73–76 structure 76 Tabouret-Keller 245 transparency 98, 101, 108 United Nations architecture 57ff. as terrain 20ff. history of 55ff. Universal Declaration of Human Rights 70, 120ff., 159, 207, 259–260 universality 8, 20, 41–42, 45, 67, 96, 120ff., 160–162, 174, 180, 194, 204, 229, 234, 260, 262 Urban 108 Wodak 88 Working Group on Minorities 35, 62, 80ff., 248ff. Zuckermann 27