The Tom Lantos Institute hosted an interactive workshop on the issue of decolonization and minority rights at its office in Budapest. The workshop was led by Mohammad Shahabuddin from Birmingham Law School and was attended by 15 experts from various global regions. During the workshop, the experts discussed decolonization processes and the decolonization of concepts, and explored future actions to advance the decolonization agenda in relation to minority rights.
Please find below the introductory speech of the event, made by Professor Shahabuddin.
TOM LANTOS INSTITUTE
WORKSHOP ON DECOLONISATION AND MINORITY RIGHTS
Introductory Speech by
Professor of International Law & Human Rights
Birmingham Law School, University of Birmingham
9 July 2023 | Budapest, Hungary
In his Nelson Mandela Annual Lecture on 18 July 2020, UN Secretary General Antonio Guterres traced the origin of global inequality to colonialism and the failure of formal decolonisation processes:
After the Second World War, the creation of the United Nations was based on a new global consensus around equality and human dignity. A wave of decolonization swept the world. But let’s not fool ourselves. The legacy of colonialism still reverberates. We see this in economic and social injustice, the rise of hate crimes and xenophobia; the persistence of institutionalized racism and white supremacy.
These comments are interesting by virtue of their rarity; not because of their novelty. While the link between colonialism and current global inequality is scarcely acknowledged by international institutions beyond just as a mere historical fact, the issue remains alive as an important element of academic discourse in a number of academic disciplines, including postcolonial studies, subaltern studies, and Third World Approaches to International Law (TWAIL).
So far as minorities are concerned, the fundamental aspects of minority rights are intrinsically connected to colonialism and decolonisation processes. The construction of the minority as a socio-political category in need of protection is informed by the way colonial rule shaped legal, political, and economic architecture of communities over centuries. In the aftermath of formal decolonisation processes – as part of the right to self-determination but within a Eurocentric legal framework – many of these minorities found themselves in hostile new states, which asserted new forms of colonial relations vis-à-vis minorities. Operating as an ideology, the ‘postcolonial’ state often marginalised minority groups but simultaneously justified such marginalisation in the name of national unity, egalitarianism, and economic development. And all these happen within a global structure that sustains imperialism in many forms and shapes. Thus, decolonisation processes reveal a multi-layered system of asymmetric power relations between vulnerable minorities, on the one hand, and a wide range of national and transnational actors including majoritarian states, international financial institutions, and corporations, on the other hand.
At the conceptual level too, the conventional discourse on minority rights embodies a series of normative biases and assumptions, which refuse to acknowledge the centrality of power, agency, political economy, hegemonic global governance structures, and masculinity, among others, to the conceptualisation of the minority and its protection. As a result, some of the core concepts such as the definition of minority, statehood, discrimination, vulnerability, violence, and protection, are often archaic, mono-dimensional, and marked by colonial phenomena. Hence, there is an urgent need for the decolonisation of foundational tenets in minority rights discourse. In this regard, it is also important to identify normative tools, such as postcolonial studies, subaltern historiography, feminist and intersectional approaches, and TWAIL, that can be used to advance this decolonial agenda. This talk covers both ‘decolonisation processes’ and ‘decolonising minority rights discourse’.
However, it needs to be acknowledged at the outset that the project on ‘decolonising minority rights’ is not a singular act; instead, it involves a complex web of activities and a wide range of actors. My talk today focuses on various aspects of minority rights discourse while leaving aside other significant aspects of this project, such as the decolonial strategy for minority rights. An important part of this decolonising project is active listening and attentiveness to subaltern voices. As a Rohingya community leader powerfully made the point before the Human Rights Council in March 2019:
Today, when this meeting is over, everybody will go back home. I have no home to go back to. When I leave Geneva, I return to the refugee camp in Cox’s Bazar. I go to my shelter made of tarpaulin and bamboo. I invite you to come and visit me in my shelter. Come and visit the one million Rohingya refugees like me. Come and explain to us about the discussions you are having about us. Or, include us and listen to us.
In most postcolonial states, nationalist elites address the problem of ethno-nationalism in general and minorities in particular by identifying the ‘postcolonial state’ itself as an ‘ideology’: claiming that the unified national state, its liberal constitutional structure, and the developmental agenda will end the troublesome ethnic parochialism and, therefore, solve the problem of minorities. In asserting their faith in the healing power of the postcolonial state, the elites conveniently avoid crucial questions about the continuation of colonial political order, the class character of the economic structure, and the hegemony of nation building projects – factors that lead to ethno-nationalism in the first place.
The ideological function of the postcolonial state takes three different yet interconnected forms: the ideology of the postcolonial ‘national’ state, the postcolonial ‘liberal’ state, and the postcolonial ‘developmental’ state. These three ideologies inflict various forms of marginalisation on minorities but simultaneously justify the oppression in the name of national unity, liberal principles of equality and non-discrimination, and economic development.
The Ideology of the Postcolonial National State
The fundamental premise of the ideology of the ‘national’ state is unification. The creation and continuation of the minority problem is closely connected to the formation of the modern sovereign state itself – both in Europe and beyond. This is due to the denial of statehood to aspiring nations, who are then treated as the leftover of the nation-state making process. It is, therefore, an almost universal phenomenon that minorities are seen as a threat to the political and territorial integrity of the states they live in.
The nationalist elites in postcolonial states had even more serious reasons for concern. This is because, colonial boundaries were drawn with little attention paid to the demographic composition. Since the postcolonial states were set to continue with the colonial boundaries, these elites were well-aware of the immediate challenge of unifying the entire nation within the given territorial boundary, however arbitrary. Therefore, the solution to this potential problem was sought in what later came to be popularly known as ‘nation-building’.
The ideology of the postcolonial national state is premised upon a homogenous national identity that absorbs all ethno-cultural differences. Given the long-term goal of assimilation and homogenisation, it is expected that the minority problem would wither away. At the same time, the process of diminishing all meaningful ethno-cultural diversity and reducing such diversity to a token showcase element imposes the majoritarian identity on the entire nation. In other words, the majoritarian culture, belief system, and cultural codes come to synonymise the ‘national’ identity in the name of nation-building and homogenisation.
The ideology of the postcolonial national state, presented as a solution to the minority problem, thus, acts as a tool to perpetuate the dominance of the majority group over the minority in political and cultural domains of the new state, leaving the minority at the mercy of the majority on vital political and economic issues.
The Ideology of the Postcolonial Liberal State
Even as the vision of the ‘national’ state served as an ideology in dealing with minorities, such a national state affirmed the ideological vision of its internal political organisation. After all, when the postcolonial national state dismantles the ethno-religious underpinning of minority groups on grounds of national integration, it needs to find for itself a ‘neutral’ and apparently ‘non-majoritarian’ philosophical outlook. The predominance of the liberal worldview of the post–Second World War international order provided the necessary ideological foundation for many postcolonial states and their constitutional architecture. This ideology of the postcolonial ‘liberal’ state also justified the omission of any specific minority group protection in the constitutions of these postcolonial states, thereby reducing minority groups to individual citizens.
Within the liberal ideological framework, the constitutional prohibition on discrimination against any citizen on grounds of religion, caste, ethnicity, and so on is generally seen as an adequate protection for minorities. The liberal regime of citizenship and individualist principles of equality and non-discrimination are designed to deal with minority groups without directly engaging with the groups per se.
The individualist notions of equality and non-discrimination are not merely inadequate for minority protection but are indeed the modus operandi of assimilation and the extinction of group identity. In other words, the vision of the postcolonial ‘liberal’ state serves the ideological function of assimilating minorities into the ‘national’ (i.e., majoritarian) culture, thereby suppressing the minority identity itself.
The diffusion of minority groups into individual citizens, followed by their subjection to a human rights regime that maintains formal equality among citizens, is seen as the very precondition of the postcolonial ‘national’ state. In this sense, both ideological manifestations of the postcolonial ‘national’ and ‘liberal’ state are interconnected.
The Ideology of the Postcolonial Developmental State
The legitimacy of postcolonial states draws on the ideology of ‘development’. If the postcolonial state had to operate very much within the territorial, political, and administrative frameworks of the colonial regime, the new regime needed a new, distinctive claim to legitimacy. The economic critique of colonial rule did not see the illegitimacy of the colonial regime in its alienness alone. Rather, the focus of the attack was on the ‘colonial mode’ of economic exploitation. The argument, thus, followed that the colonial mode of exploitation must be replaced by new forms of economic development delivered by the independent postcolonial state. Since the very logic of colonial exploitation was dependent upon the deprivation of native development, an independent nation-state was essential not only for self-government as an end in itself but also as a means of achieving precisely what it had been historically deprived of.
The developmental ideology also had important implications for the internal organisation of ethnic relations in postcolonial states. If the ideology of the ‘liberal’ state is put forward as a ‘political’ solution to the protracted crisis of ethno-nationalism and the ensuing minority problem in postcolonial states, the ‘economic’ solution to these problems comes in the form of the ideology of the ‘developmental’ state.
Since the dominant elements of the postcolonial ‘developmental’ state were drawn from the ideology of the modern liberal-democratic state, the ‘developmental’ state, with its modernist agenda of economic progress, was believed to have the mitigating power to deal with backward ethno-nationalism through liberal constitutionalism, equal rights of citizenship, economic development, and social justice.
There is an international dimension to this. The ideology of ‘development’ itself puts forward the agenda of growth-driven economic development as a neo-imperialist project in the Global South. Minorities are routinely the foremost victims of these development activities. Since the Second World War, the developmental ideology has found its breeding ground in the postcolonial national state. In their resistance to the hegemony of former colonial powers and equally notorious international financial institutions, nationalist elites in postcolonial states focused exclusively on the state, while various atrocities against minorities are justified in the name of economic growth and development.
The formal merger in the 1980s of the development discourse with human rights, in the form of the right to development, put the liberal individual at the centre of the development discourse while postcolonial elites continued to maintain the centrality of the national state. In this dichotomy of the state and the individual, minorities and their life, culture, and livelihood are frequently sacrificed at the altar of economic growth.
The majoritarian postcolonial states have indeed reinforced the colonial relations of economy and power vis-à-vis their minorities, creating some forms of internal colonisation within postcolonial states.
So far, I have covered decolonisation processes at local and international levels, and also their inter-connectedness. The list, of course, is not exhaustive, leaving room for further research and closer scrutiny of how decolonisation processes within Eurocentric frameworks made minorities more vulnerable in many parts of the world.
DECOLONISING MINORITY RIGHTS DISCOURSE
Re-conceptualising the ‘Minority’ in Relations of Power
Any attempt to decolonise contemporary minority rights discourse should ideally begin with the concept of ‘minority’ itself, for the concept as conventionally understood is informed by a sense of ‘otherness’ and ‘backwardness’ premised upon asymmetric power-relations resonating colonial discourse on the standard of civilisation. This is largely due to the dominance of liberal ideology in the aftermath of the Second World War and the historical treatment of ‘ethnicity’ in liberal political philosophy of the nineteenth century. The assimilationist urges of liberal nationalism had recourse to a significant concept of the late nineteenth century: social Darwinism. Having the binding force of ‘science’, it offered the logic of assimilation of different social groups within one political unit or their strict segregation on the basis of race.
Post-WWII international law was set to reaffirm faith in and promote certain crucial values, such as fundamental human rights, the dignity and worth of individuals, and equal rights of men and women. In this new era, however, ‘progress’ equated to liberal values, and universalism simply meant the imposition of these values on a global scale. Liberal individualism now dominates the current international legal plane and the notion of ethnicity is naturally conceived as primitiveness, backwardness, and ‘post-modern tribalism’. So, the liberal anxiety now is how to deal with the primitive ethnic phenomenon as it remains relevant for the pragmatic need of dealing with ethnicity-defined phenomena such as ethnic minorities and ethnic conflicts.
As a result, any study on minorities necessarily refers to the complexities involved in defining the term. This difficulty in defining a minority within the liberal framework is obvious, in that the effort to define the minority represents an endeavour to define the indefinable, rationalising the irrational. Therefore, a series of context-specific definitions of ‘minority’ emerged, each highlighting the definitional debate as well as the need for some sort of working definition.
For example, in 1954 the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities defined minorities as ‘those non-dominant groups in a population which possess and wish to preserve ethnic, religious or linguistic traditions or characteristics markedly different from those of the rest of the population’. Special rapporteurs Francesco Capotorti and Jules Deschenes specifically highlighted the element of a ‘sense of solidarity’ in their respective definitions of minorities in the 1970s and 1980s. Now, if we unpack, the concept of ‘otherness’ in the sub-commission’s understanding of the minority is translated into the subordinate position of the minority in a given society compared to the majority. At the same time, by wishing to preserve its distinctive characteristics as the insignia of its identity, the minority appears as a symbol of the nineteenth century’s conservative tradition of defining the ‘self’ in ethnic terms, which makes it different from the liberal understanding of the ‘self’ as a non-ethnic or post-ethnic notion.
The very desire to preserve these features makes minorities the symbol of the conservative passion – seen from the liberal point of view. In this sense, the minority is not only the ‘other’ of the majority within a given polity because of its distinctive ethnic features but also, due to its tendency to portray the self-image in ethnic terms, it is the ‘other’ of liberal universalism itself.
While it is generally accepted that the objectively recognisable fact of having ethnic, religious, and linguistic characteristics differing from those of the rest of the population should be the starting point to formulate a definition of the minority, a liberal contractualist approach, for example by John Packer, asserts that the inherent positive value to be protected and promoted is not culture per se but rather the individual’s desire as well as freedom to associate with the culture as a part of his or her identity which is valuable and, because of that, requires protection.
On the other hand, the working definition of minority developed by the UN Special Rapporteur on Minority Issues in 2019 significantly undermined the subjective element (the desire) as we have noted in previous attempts:
An ethnic, religious or linguistic minority is any group of persons which constitutes less than half of the population in the entire territory of a State whose members share common characteristics of culture, religion or language, or a combination of any of these. A person can freely belong to an ethnic, religious or linguistic minority without any requirement of citizenship, residence, official recognition or any other status.
Although the working definition has a clear focus on ‘free association’, it focuses heavily on the objective criteria and somewhat undermines the subjective element of the desire of the minority to preserve their objective elements. With its almost exclusive focus on the objective elements, the definition inadvertently adopts an essentialist approach to identity markers as self-contained categories. In the process it ignores how, far from being fixed primordial categories, identities evolve and are constructed through ethno-genesis. Perhaps, a more compelling issue here is the question of minority ‘agency’. The sole focus on the ‘objective’ criteria reduces the minority to a subject of an automatic process of external identification based on those objective criteria.
Attempts to decolonise contemporary minority rights discourse need to re-conceptualise the minority beyond the traditional vulnerability framework. While the traditional framework will continue to have its relevance, the decolonising project calls for a new vision of minority groups as an organising element of the state as well as of the global order. Feminist legal approaches to statehood can be a useful tool in this ‘decolonising minority rights’ agenda. Feminist scholars have called for moving beyond the idea of the state as a homogeneous entity with a single centre of power and, instead, appreciating the state as a complex network of interrelated but distinct institutions, relations, hierarchies, discourses, interests, and players. This will then enable us to closely study the particular mechanisms of power within the state. The decolonising project on re-conceptualising the minority as an organising element of the global order has a lot to benefit also from feminist approaches to global constitutionalism.
In decolonising minority rights discourse, another important aspect of the power relations is the resistance by the subaltern. The stories of minorities across the world are stories of historical injustice, dehumanisation, state oppression, and brutality. However, we need to consciously move beyond an exclusive focus on vulnerability per se, and engage more with the ways in which such vulnerability is produced and sustained, often in collaboration with law. Many of these ways, such as liberal notions of citizenship and development, are also sites of minority resistance against state repression. Therefore, the stories of minority oppression are also stories of heroic resistance and resilience.
In an interesting study, Kazi Farzana explains how Rohingya refugees in Bangladesh use music and art as non-conventional means of communicating their coherent identity and expressing their resistance to the discrimination and oppression experienced in their country of origin, i.e. Myanmar, as well as in their exile in Bangladesh. This informal resistance is used to keep their memory alive, to transmit that history through verbal and visual expressions to the new generations, and to communicate information about themselves to outsiders.
While the Myanmar government is using citizenship and census as tools of governmentality at its disposal to supress minorities, the Rohingya in turn are using the same tools as sites of resistance to maintain their distinct ethnic group identity against the very reality of statelessness. Under the 1982 Citizenship Law, the category of Naturalised Citizenship (green cards) can be granted to members of ethnic groups which are not one of 135 officially recognised ethnic groups of Myanmar, to any holder of foreign registration cards, or to stateless persons as long as they ‘speak well one of the national languages’ and are of ‘good character’ and of ‘sound mind’. While theoretically the Rohingya are allowed to apply for citizenship following this route, giving up their status as historic inhabitants of the land is clearly a precondition. In defiance, the Rohingya leaders therefore argued that there was no reason for them to apply for naturalised citizenship, for they enjoyed full citizenship rights in the Union before the 1982 Citizenship Law.
In her book on Transnational Social Mobilisation, Corinne Lennox explores ways in which minority groups across the world are reshaping the international minority rights protection system through transnational social mobilisation to achieve recognition of their identities and their rights. As she argues, the result is a greater pluralism in global identity politics and a wide range of new group-specific standards that can inform policies on multiculturalism, political participation, and socio-economic inclusion in the national and international spheres.
Re-Evaluating Legal interventions
Conventional wisdom dictates that international law is a force of good and to some extent essential for maintaining a peaceful global order. Norms of international law devised to protect the rights of minorities and to protect individuals from statelessness, together with the recently developed doctrine of ‘responsibility to protect’, suggest that international law offers a solution to the tragic predicament of minorities globally. The problem would thus lie in the lack of enforcement. The dominance of the idea of ‘sovereignty’ in the international law plane is usually blamed as a hindrance to the realisation of full emancipatory potential of international law in general and international human rights law in particular. However, in the last few decades, a rich body of TWAIL scholarship – informed by critical, postcolonial, and subaltern studies – has emerged to question these inherent assumptions about international law and the emancipatory potentials of the discipline by critically examining the foundational tenets of international law. Colonial origin of international law along with the role of the discipline in sustaining imperialism in the current global order is the centrepiece of this critical inquiry.
So far as minorities are concerned, as I have demonstrated elsewhere, international law plays a central role in the ideological function of the postcolonial state, thereby aggravating the vulnerability of minorities. It does so by playing a key role in the ideological making of the postcolonial ‘national’, ‘liberal’, and ‘developmental’ states in relation to: continuation of colonial boundaries in postcolonial states, internal organisation of ethnic relations within the liberal-individualist framework of human rights, and the economic vision of the postcolonial state in the form of ‘development’ that subjugates minority interests.
Thus, in the project on decolonising minority rights, it is vitally important to break with a priori assumptions about the need for international legal intervention for the protection of minorities. Instead, the role of law in general and international law in particular needs to be considered in a more strategic way. Numerous examples of successful grassroots movement underscore the point.
Political Economy of Violence
Minority and majority groups, competing over resources and jobs, are not always inherently racists. We need to consider material conditions which encourage hatred and bigotry, and political conditions which enable discriminatory policies and practices. The project on decolonising minority rights needs to take seriously the political economy of minority oppression.
In the current era of neoliberal economy, the situation of minorities has worsened. Development-induced persecutions of the minority cannot be fully addressed in isolation from the hegemonic neoliberal economic structure at the global scale. Gross violations of human rights and the destruction of life and nature take place in the name of market liberalisation, privatisation of lands, and the promotion of foreign direct investment. The incessant demand for more lands and natural resources to feed the neoliberal economic needs resulted in the development-led forced displacement of many minorities.
States being the traditional oppressor of minorities, there was ostensibly a hope that the weakening of states in this era of neoliberalism would open new avenues for minorities to assert influence in the functioning of the state. In reality, whatever vacuum in the sovereign domain was created in the process of state submission to the neoliberal economy was quickly filled by transnational actors. In fact, the neoliberal economic system itself was designed to make this happen. Minorities are now in a precarious position where for survival they need to simultaneously resist the state and corporations, who have converging vested interests vis-à-vis minority lands and resources.
This is a global phenomenon. Therefore, global action and solidarity is required to put the brakes on this monstrous neoliberal invasion. As part of decolonising minority rights discourse, it is also essential to problematise and challenge the dominant idea of ‘development’ as the ultimate end of human progress, to counterbalance its tendency to commodify, and to expose its capacity to articulate state power in terms of economic growth rather than welfare.
We also need to acknowledge that minorities are not the only victims of the hegemonic state. Minorities, understood as non-dominant groups, are often economically deprived, but the fate of the poorest section of the society is shared beyond ethnic lines. Although there are cases of market dominant minorities in some societies, such as the ethnic Chinese across Southeast Asia or the Lebanese in West Africa, these ‘elites’ are rather exceptions. While they also face a certain degree of discrimination, they hardly relate to the life experience of their poorer co-ethnics. The capitalist economic structure locally and globally marginalises the poor in general, and the minority’s ethnic identity on top of their economic vulnerability creates new avenues for further oppression by the hegemonic state. Therefore, in this project on decolonising minority rights, we need to think about intersectionality with a renewed emphasis on class factors – in addition to race and gender - to make a better sense of vulnerability, subjugation, and so on.
In conclusion, the link between decolonisation and minority rights covers a wide range of issues, which I have categorised here under the broad rubrics of ‘decolonisation processes’ and ‘decolonising minority rights discourse’. Thoughts and ideas presented here are far from exhaustive or prescriptive; instead, these should be seen as an invitation for further research in this field or, at least, as a conversation starter. I conclude with the hope that researchers interested in minority rights issues would be encouraged to identify and investigate other relevant areas of concern regarding the link between decolonisation and minority rights. This is an important project and there is a long way to go!