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Evolution of International Law and Minority Persecution by Postcolonial States

Akash Manwani,

Research Intern,

Internationalism

The mid-20th century wave of decolonisation and independence failed to supplement a smooth transition for ethnic groups which faced forced migration and subsequent demobilization due to changing dynamics of the World War and civil disobedience movements. By adopting a different system of laws, the postcolonial states have come to adopt their versions of treatment towards the minority ‘problem’. Based on different postcolonial states’ ideological approach, they can be bracketed into one of the three groups which are national state, liberal state and developmental state. A national state represents homogeneity of the majority by suppression of the right to self-determination of minorities in toto. The liberal state, on the other hand, confers individualistic rights against discrimination but without the means to realize the recognition of cultural/group rights. The third ideological category is a developmental state, which condenses issues of the minority to mere issues of economic inequality, which when addressed adequately, would automatically eradicate communal biases. The role of International law in the formation of these ideologies suggests that it has allowed the abovementioned dormant efforts to assimilate minorities in the mainstream without identity loses to flourish. Several minorities targeted crimes such as ethnic cleansing, genocides and mob lynching are an indirect result of the whole genesis of world order post decolonisation. Following is a comparative analysis between ideological approaches of the state and supplementation of the same by international policies:-

National state ideology and international law

The post-war peace conferences echoed in the ears of all the states in the world that there shall be an endeavour to reaffirm faith in the fundamental human rights, dignity and equality.[1] This progressive dogma resulted in universalistic treatment to all human beings without paramount consideration to specific violations of ethnic oriented casualties.

There was a paradigm shift from minority protection post WWI to ubiquitous individual human rights protection post WWII which was the central theme behind every modification in territorial frontiers of the colonial states[2].

Redrawing of territories from the viewpoint of European worldview was being undertaken without due regard to the local mass ethnic displacements. Though in 1966 International Covenant on Civil and Political Rights (ICCPR) recognized several rights of minorities, they were seldom realized effectively[3].

On account of the abovementioned repositioning of objective, the state perimeters were to be retained following the principle of uti possidetis which prevailed over the right to self-determination of ethnic groups. This principle was robotically accompanied by the international community’s stance of non-interference in sovereign affairs of the state[4]. In effect, this had undercut the representation of ethnic groups which had become minorities in the newly emerging states. The states possessively stood for total autonomy in internal affairs which included the rights of minorities. As a result, states with homogenous majority faced minuscule opposition from the international community. Counter-majoritarian efforts domestically stirred up resentment amongst the majority which was hardly addressed by the international law[5]. It is due to these historical discriminations that minorities live with a sense of discontent and derive secessionist tendencies; however, the legal validity of the same is highly questionable. A national state ideology shows the little scope of change and might only alter its non-inclusive policies with the appropriate remodelling of international policies.

Liberal state ideology and international law

The general discourse of the international community represented that the system of minority protection post-WWI suffered from structural defects and called for a new system of universal protection of human rights to be the new guiding light[6]. Although protection of human rights conferred the right to equality and rights against discriminations, they were only successful in conferring protection to the individual and not the communities at large. The collective rights of the group thus stood underrepresented when in fact the motive behind delinquencies against minorities stem from the collectiveness of these ethnic groups. The presumption that constitutional safeguards against inalienable human rights will provide security, ensure well-being and right to self-determination for minorities is ostentatious. It would be defying logic to state that crimes against an individual based on his ethnicity are not a crime against the community itself. Individual rights may be effectively executed in isolation but group-differentiated practices of minorities, even in liberal democracies, does not entail any motivation, which in turn attacks the total legitimacy of constitutional protections.

Recognition of group rights entails a higher degree of fulfilment by the state as it goes a notch higher from the prevention of discrimination against minority groups. It requires ensuring rights of non-dominant groups which should receive equal participation, get assimilated in the mainstream without loss of identity and protection from majoritarian implications[7].

Developmental state and international law

This ideology is centrist in the sense that it justifies all issues of minorities with a generalist desire of human beings to achieve greater financial capacity. The two schools of thought based on the asymmetry of power system which dominates this landscape are instrumentalism and elite-constructivism. The former relies on the idea that primarily minorities are a group of profit-oriented people who are underrepresented in commercial opportunities on account of their ethnic profiles. The later substantiates its claim of economic maximization by relying on deeply rooted problems of society like hierarchical differences between elites and non-elites and the inability of minorities to climb the ladder.

The mantra of equal economic opportunities for all in liberal democracies should ideally address the concerns of both schools of thought. However, the defect behind this ideology is misidentification of the minority problems by not inculcating concerns like preservation and promotion of their culture. Empirical evidence suggests that even International law is not immune from this misidentification. The post-colonial period brought with itself, the New Economic World Order which kept profit maximisation at the nucleus with a similar belief that social systems can be cured with economic medicines.

Conclusions

The inception of international law suffers from transitional related disorders and unthoughtful considerations of the past which serve as the reasons for several communal conflicts today. Being mindful about the fact that harmony can never be imposed between two conflicting groups, the hope of assimilation of minorities in a true sense could be achieved only with the total remodelling of protection systems. With adequate efforts by the international community, scope of interference into minority affairs should be increased, adequate consideration must be given to group rights, sustenance and proliferation of cultures must be prioritized.


References

[1] Preamble of the Charter of United Nations, https://www.un.org/en/sections/un-charter/preamble/ [2] Shahabuddin Mohammad, Liberal Self Determination, Post-colonial Statehood and Minorities: The Chittagong Hill Tracts in Context, (2013), Jahangirnagar University Journal of Law, available at: https://core.ac.uk/download/pdf/28999301.pdf [3] United Nations, Minority Rights: International Standards and Guidance for Implementation, HR/PUB/10/3, 2010 [4] Milenia Sterio, Secession: A Proposal for a New Legal Framework, German Yearbook of International Law, available at: http://ssrn.com/abstract=2857209 [5] Bishai Linda A, Sovereignty and Minority Rights: Interrelations and Implications, Global Governance, Vol 4, No. 2, 1998, pp. 157-182, www.jstor.org/stable/27800192 [6] United Nations, Study of the Legal Validity of the Undertakings Concerning Minorities (1950), UN Doc E/CN4/367. [7] Khanyisela Moyo, Minorities in Postcolonial Transitions: The Ndebele in Zimbabwe, African Journal of Legal Studies, 4-2011 149-185.

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