András L. Pap
Legal and Institutional Approaches to
Minority Protection
Fall 2012 – Winter 2013
CENTRAL EUROPEAN UNIVERSITY
NATIONALISM STUDIES PROGRAM
Legal and Institutional Approaches to Minority Protection
András L. Pap
Course description
The course is designed to provide a comprehensive overview of the major issues
and questions within the purview of minority protection. Following a theoretical
introduction and general discussions about the concept and evolution of minority
rights and various rights-based approaches to recognizing minorities, such as
individual rights, collective rights, self-determination, land-rights equality,
discrimination and affirmative action, separate sessions are dedicated to the analysis
of specific and specialized legal regimes and institutions. These include the
assessment of indigenous rights, refugee protection, Diaspora policies and politics,
as well as the scrutiny of legal and political dilemmas concerning hate speech, hate
crimes, the legal conceptualization of minority identity and the processing of ethnonational data.
There will be weekly meetings in a seminar format. Seminar discussions of the
required readings will have two parts: a general discussion, in which all students are
expected to participate, and individual student presentations that explore, contest,
or specify the major arguments of the required readings.
Readings
This interdisciplinary course is designed to engage and challenge students in critical
debates. The subject combines several areas of legal studies—human rights, legal
theory, theory of EU law, rights of ethnic minorities—with various fields within the
social sciences. Besides reading excerpts from books and academic articles, students
will also become familiar with a wide range of case law dealing with the topic. Each
session is designed to combine academic articles and excerpts from books with
legal texts or reports and policy recommendations by international organizations,
and with the analysis of case law and jurisprudence. Students will not be given
ready answers at the outset; instead, they will be encouraged to take an active part
in debating and understanding the analyzed issues.
For each class, the reader contains the mandatory readings. Recommended
materials are available on the e-learning site. Readings are mostly assigned to two
students, one of whom will present it in class and submit an outline for it in class.
The other assigned student will act as discussant. Presenters and discussants are
expected to be familiar with the recommended readings.
Grading information
Students are expected to attend all seminars, read all the required readings and
prepare to be active in seminar discussions. It is absolutely essential to read
assigned materials prior to each session.
In addition to this, students are required to
(i) give presentations and act as discussants on the assigned mandatory and
recommended readings, as well as on the case studies of their chosen countries on
classes 13 and 23.
(ii) submit a final essay incorporating and critically analyzing readings discussed
during the course. The last class is partially reserved for the discussion of the paperproposals. Abstracts for the papers need to be submitted by the 20th class.
(i) Students will be asked to sign up for seminar presentations and national reports
for classes 13 and 23. Choices will be discussed in class. The presenters will be
expected to sum up the main arguments of the mandatory and recommended
readings and pose some key questions for class discussion. The presentation should
be supported by an outline or a response paper of 1-3 pages which discusses some
of the selected themes of the reading, to be submitted via e-mail by 11:30 a.m. the
day prior to the class. For the first class, presenters should bring printed copies for
all seminar participants. Discussants are also encouraged, but not required to
submit response papers. Presentations should be reactions to the readings rather
than summaries.
(ii) The term paper should be an original research paper that has at least 2000 and
no more than 3000 words, double-spaced, with bibliography added. All students are
expected to submit a project proposal at the 20th seminar. The proposal should
outline the main questions asked and be discussed with the instructor. The topic
should relate to the broad themes of the course and class discussions. The paper
should follow the genre of a scholarly essay either as a case study or as a literature
review. The last class is partly dedicated for the discussion of the paper-projects.
Both the outline and final research paper are expected to be products of each
student's individual effort. Evaluation will be based on the quality of research, its
originality, quality of grammar, accuracy of spelling, and soundness of content. It
constitutes plagiarism if a student quotes or adopts ideas from a source without
appropriate attribution (for example, by failing to utilize endnotes or footnotes
properly). Similarly, direct quotations must be attributed and indicated by quotation
marks.
Please note that late papers submitted after the deadline will be marked down by half
of a letter grade per day.
The requirements and grading breakdown of the seminar are as follows:
Seminar presentation and commentator duties, the quality of the response
papers and the country reports for classes 12 and 23 (late response papers
will be noted) (25 percent);
Active seminar participation, (35 percent)
Final essay (40 percent).
At the 6th class as well as around mid-term, individual consultations will be held to
discuss overall class performance and the quality of the presentations.
COURSE DESIGN:
Class 1. Introduction
Class 2. The concept of rights, and human rights
Class 3. Various rights-based approaches to recognizing minorities:
individual rights, collective rights, self-determination, land rights
Class 4-5. Conflicts of individual and collective rights
Class 6. Equality and discrimination I. Concepts and European Institutional
Responses
Class 7. Equality and discrimination II. The morphology of discrimination
Class 8. Equality and discrimination III. Cases
Class 9. Reversed discrimination/Affirmative action
Class 10. Definition-making and data processing I.
Class 11. Definition-making and data processing II. Census and ethnic data
collection
Class 12. The fluidity of etho-national identification I.
Class 13. The fluidity of ethno-national identification II.
Roundtable discussion: student presentations on national discourses,
policies and frameworks for ethno-national classification and identification
Class 14. Special legal regimes I.: Indigenous rights I.
Class 15. Special legal regimes I.: Indigenous rights II.
Class 16. Special legal regimes II. Refugee protection
Class 17. Special regimes III. Non residual citizenship, Diaspora bonds,
status laws: the many sides of Diaspora policies and politics I.
Class 18. Special regimes III. Non residual citizenship, Diaspora bonds,
status laws: the many sides of Diaspora policies and politics II.
Class 19. Special regimes IV. Ethnic data collection in law enforcement
Class 20. Special regimes V. The political representation of minorities and
ethnic registers
Class 21. Special regimes VII. Hate crimes
Class 22. Special regimes VIII. Hate speech
Class 23. Roundtable discussion: national case studies for political
participation of minorities, hate crimes and hate speech legislation
Class 24. Conclusions and discussion of paper-proposals
READINGS:
Class 1. Introduction
Class 2. The concept of rights, and human rights
Louis Henkin: Age of Rights, Introduction: The human rights idea, p.1-10
Sen, Amartya: Human Rights and Asian Values, The New Republic, July 14-July 21, 1997 pp. 1-5.
Class 3. Various rights-based approaches to recognizing minorities: individual rights,
collective rights, self-determination, land rights
Kymlicka, Will: The Shifting International Context: From Post-war Universal Human Rights to
post-Cold War Minority Rights: In. Multicultural Odysseys, Navigating the New International
Politics of Diversity, Oxford, 2007, pp. 27-55
Brunner, Georg – Küpper, Herbert: European Options of Autonomy: A Typology of Autonomy
Models of Minority Self-Governments. In: Kinga Gál (ed.), Minority governance in Europe,
Budapest: LGI & ECMI, 2002, pp. 11-37.
Recommended:
Kymlicka, Will: Western Political Theory and Ethnic Relations in Eastern Europe. In: Will
Kymlicka and Magda Opalski (eds.), Can Liberal Pluralism be Exported?, Oxford University
Press, 2001. pp. 13-107.
Class 4-5. Conflicts of individual and collective rights
Kymlicka, Will: Multicultural Citizenship, Individual Rights and Collective Rights, pp. 34-48
Okin Moller, Susan: Is Multiculturalism Bad for Women?, In: Joshua Cohen, Matthew Howard
and Martha C. Nussbaum (Eds.) Is Multiculturalism Bad for Women?, Princeton, New Yersey:
Princeton University Press, 1999., pp. 9-24
Kymlicka, Will: Liberal Complacencies, Id. pp. 31-34
Sassen, Saskia: Culture Beyond Gender, Id. pp. 76-78
Cases:
Wisconsin v. Yoder, 406 U.S. 205 (1972) Summary
Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872
(1990) Summary
Kosteski v. The Former Yugoslav Republic of Macedonia, ECHR, 2006, Summary
Amish Renegades Are Accused in Bizarre Attacks on Their Peers, The New York Times,
October 17, 2011
Timothy Williams: For Native American Women, Scourge of Rape, Rare Justice, The New
York Times,
Recommended:
Kosteski v. The Former Yugoslav Republic of Macedonia, ECHR, 2006 Full text
Wisconsin v. Yoder, 406 U.S. 205 (1972) Full text
Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872
(1990) Full text
Class 6. Equality and discrimination I. Concepts and European Institutional Responses
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment
between persons irrespective of racial or ethnic origin
McCrudden, Cristopher: Thinking about the Discrimination Directives, European AntiDiscrimination Law Review no. 1 (April 2005) pp. 17–21.
Verloo, Mieke: Multiple Inequalities, Intersectionality and the European Union, European
Journal of Women's Studies 13, no. 3 (2006) pp. 211–28.
Parekh, Bhikhu: "Logic of intercultural evaluation". In Bhikhu Parekh: Rethinking
Multiculturalism. Cultural Diversity and Political Theory. Macmillan, 2000.,
Class 7. Equality and discrimination II. The morphology of discrimination
European Union Minorities and Discrimination Survey, Data in Focus Report, Muslim, 2009, pp.
1-20
The first EU-MIDIS ‘Data in Focus’ report examining discrimination and victimisation
experienced by the Roma, 2009, pp. 1-15
Declaration on the Roma rights to political and national equality
Recommended:
Human rights of Roma and Travellers in Europe, Council of Europe, 2006
ECRI Report on Hungary, June 20, 2008
Class 8. Equality and discrimination III. Cases
Plessy v. Ferguson, 163 U.S. 537 (1896)
Korematsu v. United States, 323 U.S. 214 (1944) summary pp. 1-6
Korematsu day, pp. 1-3
Brown v. Board of Education, 347 U.S. 483 (1954)
D.H. v. Czech Republic (excerpts)
Indian Women Find New Peace in Rail Commute, The New York Times, 2009 September 16
Recommended:
Korematsu v. United States, 323 U.S. 214 (1944) Full text
D.H. v. Czech Republic, Full text
Roma Education: The Promise of D.H., Roma Rights 1, 2008
Find at: http://www.errc.org/en-research-and-advocacy-roma-details.php?article_id=2987
Class 9. Reversed discrimination/Affirmative action
Young, Iris Marion: Justice and the Politics of Difference, Princeton University Press, pp. 193225
University of California Regents v. Bakke, 438 U.S. 265 (1978) Summary
Grutter v. Bollinger, 539 U.S. 306 (2003) Summary
Jewish couple sue over lighting that makes them ‘work’ on sabbath, The Times, The Times, `June
17, 2009
Stout, David: Justices Rule for White Firefighters in Bias Case, The New York Times, 2009 June
30
Recommended:
Charles R. Lawrence III.: The Id, the Ego, and Equal Protection: Reckoning with Unconscious
Racism, Stanford Law Review Vol. 39, No. 2 (Jan., 1987) pp. 1-56
University of California Regents v. Bakke, 438 U.S. 265 (1978) Full text
Grutter v. Bollinger, 539 U.S. 306 (2003) Full text
Class 10. Definition-making and data processing I.
Directive 95/46/EC of the European Parliament and the Council on the protection of
individuals with regard to the processing of personal data and on the free movement of such
data, 24 October 1995.
Goldston, James: Race and Ethnic Data: A Missing Resource in the Fight Against
Discrimination. In: Andrea Krizsan (ed.), Ethnic Monitoring and Data Protection. The European
Context, CPS Books, Central European University Press-INDOK, 2001, pp. 19-45.
Recommended
No data—no progress. Country findings. Data collection in countries participating in the decade
of Roma inclusion 2005–2015, August 2010, Roma Initiatives, OSI
Class 11. Definition-making and data processing II. Census and ethnic data collection
Claude Cahn: Void at the Centre: (The Lack of) European Union Guidance on Ethnic Data – In:
Roma Rights Quarterly 2/2004, pp. 1-9
ECRI General Policy Recommendation N°4: National surveys on the experience and perception
of dis crimination and racism from the point of view of potential victims. , pp. 1-8.
Recommended
Timo Makkonen: European handbook on equality data. European Commission 2007.
Patrick Simon: „Ethnic” statistics and data protection in the Council of Europe countries. Study
Report. Institut National d’Etudes Demographiques Strasbourg, 2007
Class 12. The fluidity of etho-national identification I.
John Tehranian: Performing whiteness: Naturalization litigation and the construction of racial
identity in America, Yale Law Journal, January, 2000. pp. 1-30.
András L. Pap: Murphy’s law on the free choice of identity? Legal and political difficulties in
defining minority communities and membership boundaries, manuscript, pp. 1-28
László Fosztó: Diaspora and Nationalism: an Anthropological Approach to the International
Romani Movement, Regio, 2003, pp. 102-1119
Class 13. The fluidity of ethno-national identification II.
Roundtable discussion: student presentations on national discourses, policies and
frameworks for ethno-national classification and identification
Class 14. Special legal regimes I.: Indigenous rights I.
ILO Convention on Indigenous and Tribal Populations, 1957 (No.107)
ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries (1991)
UN Declaration on the Rights of Indigenous Peoples (2007)
Indigenous & Tribal People’s Rights in Practice, A guide to ILO Convention No. 169., pp. 9-27
Banda, Fareda –Chinkin, Christine: Gender, Minorities and Indigenous Peoples, pp. 1-36.
In California, Indian Tribes With Casino Money Cast Off Members, The New York Times,
December 12, 2011
Class 15. Special legal regimes I.: Indigenous rights II.
Rice v. Cayetano, Summary
Morton v Mancari, Summary
Cuison Villazor, Rose: Blood Quantum Land Laws and the Race versus Political Identity
Dilemma, California Law Review, June, 2008, pp. 16
Recommended:
http://www.interior.gov/tribes/trace-ancestry.cfm
Rice v. Cayetano, Full text
Morton v Mancari, Full text
Class 16. Special legal regimes II. Refugee protection
UN Convention on Refugees
UNHCR Handbook on Procedures, Para 1-168
Hathaway, James C.: The Law of Refugee Status, Well-founded fear, pp. 65-97
John Ward: Judge orders rehearing of white South African's bid for refugee status, The Canadian
Press, November, 2010
Marta Falconi: Germans Acquitted After Rescuing Migrants at Sea, The Associated Press, ROME
October 7, 2009
Recommended:
Asylum in Hungary, A guide for foreigners who need protection, Hungarian Helsinki Committee
V. Bader: The Ethics of Immigration’, Constellations, vol. 12, no. 3 (2005), pp. 331–361
Canadian unease at white 'refugee'
Judit Tóth: The Incomprehensible Flow of Roma Asylum-Seekers from the Czech Republic and
Hungary to Canada, November 2010, CEPS pp. 1-45
Class 17. Special regimes III. Non residual citizenship, Diaspora bonds, status laws: the
many sides of Diaspora policies and politics I.
Chander, Anupam: Diaspora Bonds. New York University Law Review, October, 2001, (excerpts)
pp. 1-26.
Szabolcs Pogonyi: Dual citizenship and sovereignty, Nationalities Papers, September, 2011
Kovacs, Maria: The Politics of Non-Resident Dual Citizenship in Hungary. Regio, 2005 Vol. 8.,
pp. 50-73.
The Nottebohm Case, International Court of Justice, Summary
Ngozi Okonjo-Iweala - Dilip Ratha Homeward Bond, The New York Times, March 11, 2011
Recommended:
Venice Commission Report on out-of-country voting (2011) pp. 1-15
The Nottebohm Case, International Court of Justice, Full text
Class 18. Special regimes III. Non residual citizenship, Diaspora bonds, status laws: the
many sides of Diaspora policies and politics II.
Venice Commission Report on the preferential treatment of national minorities by their kin-state
(2001) pp. 1-28.
Ieda Osamu, Post-Communist Nation Building and the Status Law Syndrome. In.: Zoltán Kántor
[et al.], The Hungarian status law: nation building and/or minority protection, Sapporo, Slavic Research
Center, Hokkaido University, pp. 3-58.
Recommended:
The Hungarian Status Law
Michael Stewart, The Hungarian Status Law: A New Form of Transnational Politics? In: Zoltán
Kántor [et al.], The Hungarian status law: nation building and/or minority protection, Sapporo, Slavic
Research Center, Hokkaido University, pp. 120-152.
Constantin Iordachi, Dual Citizenship and Policies Toward Kin-Minorities in East-Central
Europe. In: Zoltán Kántor [et al.], The Hungarian status law: nation building and/or minority protection,
Sapporo, Slavic Research Center, Hokkaido University, pp. 239-270.
Class 19. Special regimes IV. Ethnic data collection in law enforcement
András L. Pap: Ethnicity and Race-Based Profiling in Counter-Terrorism, Law Enforcement and
Border Control, European Parliament, 2008 pp. 1-63
Data in Focus Report 4: Police Stops and Minorities, 2010, pp. 20
Recommended
Julie Ringelheim: Processing Data on Racial or Ethnic Origin for Antidiscrimination Policies:
How to Reconcile the Promotion of Equality with the Right to Privacy? NYU School of Law,
The Jean Monnet Working Paper Series
I can stop and search whoever I want’: Police stops of ethnic minorities in Bulgaria, Hungary and
Spain, Open Society Justice Initiative, New York, 2007
András Kristóf Kádár -- Balázs M. Tóth -- Andras L. Pap: Police ethnic profiling in Hungary,
European. European Police Science and Research Bulletin CEPOL, Europaen Police College,
2009/2, pp. 4-6.
Class 20. Special regimes V. The political representation of minorities and ethnic
registers
Venice commission Report on electoral rules and affirmative action for national minorities’
participation in decision-making process in European countries, 2004, pp. 1-18
The constitution of Bosnia-Hercegovina
Lucy Claridge: Discrimination and political participation in Bosnia and Herzegovina Sejdic and
Finci v. Bosnia and Herzegovina, MRG, pp. 1-8
Recommended
Sejdic and Finci v. Bosnia and Herzegovina, full text
Andrew Reynolds, Electoral systems and the protection and participation of minorities,
Minority rights Group International, 2006
Class 21. Special regimes VII. Hate crimes
Hate Crime Laws, A Practical Guide, OSCE ODHIR Part I. pp. 16-57
For African Immigrants, Bronx Culture Clash Turns Violent, The New York Times October 20,
2009
House Votes to Expand Hate Crimes Definition The New York Times October 9, 2009
Recommended
Office for Democratic Institutions and Human Rights: Addressing violence, promoting
integration. Field assessment of violent incidents against Roma in Hungary: Key developments,
findings and recommendations, June-July 2009, pp. 1-70
Class 22. Special regimes VIII. Hate speech
Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms
and expressions of racism and xenophobia by means of criminal law
National Socialist Party v. Skokie, 432 U.S. 43 (1977), Summary
Brandenburg v. Ohio, 395 U.S. 444 (1969), Summary
Garaudy v. France, 2003, Summary
R. A. V. v. City Of St. Paul, Minnesota, Summary
Virginia v. Black et al, Summary
Recommended
Hate speech factsheet, ECHR
Haupt, Claudia E.: The Scope of Democratic Public Discourse: Defending Democracy,
Tolerating Intolerance, and The Problem of Neo-Nazi Demonstrations In Germany, Florida
Journal of International Law, August, 2008
Stradella, Elettra: Hate Speech in the Background of the Security Dilemma, German Law Journal
January 1, 2008
Garibian, Sévane: Taking Denial Seriously: Genocide Denial And Freedom Of Speech In The
French Law, Denying Genocide: Law, Identity and Historical Memory in the Face of Mass
Atrocity Conference, Cardozo Journal of Conflict Resolution, Spring 2008
National Socialist Party v. Skokie, 432 U.S. 43 (1977), Full text
Brandenburg v. Ohio, 395 U.S. 444 (1969), Full text
Garaudy v. France, 2003, Full text
R. A. V. v. City Of St. Paul, Minnesota, Full text
Virginia v. Black et al, Full text
Class 23. Roundtable discussion: national case studies for political participation of
minorities, hate crimes and hate speech legislation
Class 24. Conclusions and discussion of paper-proposals