National Minority Rights In Europe

by Malloy, Tove H.

• ISBN13: 9780199274437
• ISBN10: 0199274436
• Format: Hardcover
• Copyright: 2005-08-11
• Publisher: Oxford University Press

Summary

Separatism is a highly topical and controversial legal and political issue. The conflicts in the Balkans of the 1990s have revived the unresolved issue of national minority self-determination in international law and also, in European politics, the issues of how to deal with sub-state nationalisms and group recognition, and how to enable the political inclusion of national minorities. This book reviews the impact of the discourse of national minority rights on the European inter-governmental approach to national minority accommodation after 1989, and proposes an alternative framework for national minority accommodation based upon multiple loyalties, critical citizenship, and discursive justice.

Author Biography

Tove H. Malloy is a Senior Research Associate with ECMI where she is Head of the EU Department. She is a permanent member of the Danish Foreign Service, from which she is currently on leave.

Table of Contents

Acknowledgements	xi
Abbreviations	xiii
Table of Treaties	xv
Table of Documents	xvi
Table of Travaux Preparatoires to the FCNM	xix
Table of Cases	xxi
Introduction	1	(14)
I. PROBLEMATIZATION: INDIVIDUALISM AND COLLECTIVISM
Overview: National Minority, or Co-nation?	15	(36)
Who are Europe's National Minorities?	18	(6)
National Minorities and the Structure of International Law	24	(11)
National minority rights prior to 1989	28	(4)
National minorities and state nationalism	32	(3)
National Minorities and Public Policy	35	(3)
Ethical Terminology	38	(2)
Models of Accommodation	40	(4)
Citizenship	44	(4)
Justice	48	(3)
Co-nation Rights after 1989: Cultural, or Political Rights?	51	(32)
Emergence of a Co-nation Rights Scheme in Europe after 1989?	53	(24)
International treaties and conventions	54	(6)
International custom	60	(10)
General principles of law	70	(5)
Judicial decisions	75	(2)
The Writings of Publicists	77	(4)
Conclusions	81	(2)
Co-nation Rights and the Concept of `Collective Rights': Human Rights, or Institutional Rights?	83	(32)
`Collective Rights' in Public International Human Rights Law	84	(6)
Liberal Theory and the Problem of `Collective Rights'	90	(4)
The Problem of Collective Interests and Collective Goods	94	(3)
The Problem of Duties	97	(5)
Co-nation Rights as Institutional Rights	102	(3)
Innovative Conceptualization of Co-nation Rights in Europe	105	(2)
The Philosophy of Co-nation Freedoms	107	(3)
Conclusions	110	(5)
II. IN THEORY: UNIVERSALISM AND PARTICULARISM
Liberalism and Nationalism: The Problem of Co-nation Inclusion in National Self-Determination	115	(28)
What is State Nationalism?	118	(8)
Terminology	126	(2)
Liberal Pluralism	128	(4)
National Identity	132	(5)
Theorizing National Self-Determination	137	(6)
Liberalism and the Constitutive Community: Recognition and Individual Practical Reasoning in Self-Determination	143	(28)
The Constitutive Community and Moral Values	145	(5)
Personal Identity and the Problem of Loyalty	150	(3)
The `Politics of Recognition'	153	(3)
The `Struggles for Recognition'	156	(4)
The Kantian Self in Autonomy	160	(6)
Justice as Undecidability	166	(3)
Critical Citizenship	169	(2)
Liberal Democracy and the Discursive Approach: Ethics, Virtues, and Cosmopolitan Consideration	171	(44)
Models of Accommodation	173	(11)
Federalism	175	(3)
Consociationalism	178	(6)
The Discursive Approach	184	(7)
The Problem of Proceduralism in `Justice as Democracy'	191	(6)
The Problem of Strategic Bargaining	197	(2)
`The Return of the Political'	199	(5)
The Problem of Virtues in Ethics	204	(5)
Discursive Justice	209	(6)
III. IN PRACTICE: PROTECTION, OR SELF-PROTECTION?
The Politics of Democratization: The Circular Problem of State Sovereignty	215	(35)
The Inter-textual Situation of the FCNM	217	(5)
Assumptions Behind the FCNM	222	(11)
A definition	223	(3)
Corporate rights	226	(3)
A loyalty clause	229	(2)
Political representation	231	(2)
The Assumption of State Sovereignty	233	(2)
The PA Approach: Insistent Rhetoric	235	(4)
The AC Approach: Rebellion from Inside?	239	(1)
The CLRAE Approach: Quiet Rebellion	240	(7)
Conclusions: Democratizing Without the People	247	(3)
The Politics of Integration: The Possibilities of de facto Co-nation Sovereignty	250	(39)
Economic and Market Integration: Liberal Rights and Freedoms	252	(7)
Transition to Political Integration: The Emergence of Diversity?	259	(18)
Copenhagen and conditionality: Europeanization and dichotomy	266	(2)
Amsterdam: toward complex constitutionalism	268	(4)
Nice and the Charter: the emergence of co-nation protection	272	(5)
Political Integration: Overcoming Dichotomy?	277	(4)
The subsidiarity approach: building the `cobweb'	278	(3)
Multi-layered Constitutionalism: de facto Co-nation Sovereignty	281	(5)
Conclusions: Integration with Co-nation Empowerment?	286	(3)
Towards a Critical Theory of Co-nation Rights: Forging Ethical Standing through Social Power	289	(26)
Positioning the Discourse of Co-nation Rights	291	(3)
Deconstructing the Notion of State Sovereignty	294	(4)
Deconstructing the Notion of Self-Determination	298	(6)
Co-nations in the Design of the New Europe	304	(8)
Human rights as a self-discovery	307	(1)
The social exchange of rights and duties	308	(1)
The dilemma of co-nationalism within society	309	(1)
The co-nation and the dilemma of the self and the other	310	(1)
The co-nation and the dilemma of the one and the many	311	(1)
The international legal order and the notion of state sovereignty	312	(1)
Concluding Remarks: Protection, or Self-Protection?	312	(3)
Bibliography	315	(30)
Index	345