Is There a Legal Right to Free Choice of Ethno-Racial Identity?: Legal and Political Difficulties in Defining Minority Communities and Membership Boundaries

Abstract

Consider the following paradox: while sociologists, anthropologists, constitutional scholars, philosophers and policy makers may endlessly dwell on the difficulty of benchmarking or defining membership criteria for minorities, and – complicated by powerful data protection regulations – a number of international human rights commitments are interpreted in a way which suggest that they recognize the free choice of identity in both the positive and the negative sense, in the real world there are no definitional or identification problems for those who engage in discriminatory behavior. When it comes to the ill-treatment of members of various minority groups, no difficulties in definitions arise for the discriminating party. In fact, sometimes conceptual ambiguities may only even worsen protections provided for the victimized group, as they make it difficult to define/identify target groups and beneficiaries.

This essay investigates the constitutional dilemma that characterizes all ethno-racial minority protection mechanisms, be they remedial in nature, demands for collective ethno-cultural recognition, systems of preferential treatment, or protections offered from racially motivated violence or discrimination: they need to institutionalize some kind of a definition for the targeted groups, and/or membership requirements within the community. The failure to do so seriously impedes the prospects for efficient legal protection, as shown, for example, by the documented practice of “ethno-corruption”, and the reluctance to apply anti-discrimination and hate crime laws, in part due to concerns over data collection in Eastern Europe and elsewhere. Also, people (the legislature, the majority, the taxpayers, and the international community) have an arguable right to properly identify the beneficiaries of the affirmative action and minority rights regimes, if not for other reasons, then due to the budgetary burdens of these policies and the responsibility for a sustainable and transparent policy-making and enforcement scheme.

These definitional issues and the potential for exploitation highlight the complexity of minority identification, which is manifest, for example, in the vastly different approaches law and legal measures need to follow when providing protection from victimization in hate crimes and discrimination on the one hand, and accommodating multicultural (or other) diversity-claims on the other. I argue that although the legislative goal to design a precise set of requirements is common to both approaches, perception will be the crucial concept in the former, while choice and identification are paramount in the latter.

In the first part of the essay, I analyze the habitually used definitions and conceptualizations of minority groups and membership criteria. The second part turns to unfold the paradox of free choice of identity. I will highlight the theoretical contradictions and practical malfunctions within the reading that recognizes the free choice of identity as a principle of international minority rights protection law, arguing that the legally undefined (thus, practically unrestrained) right to minority identification may in practice actually lead to inherent inefficiencies in rights protection, in two distinct ways. First, when it comes to protection from discrimination, or racially motivated hate crimes, hate speech, or even genocide, data protection regulations for sensitive, identity-based information, the guarantee for free choice of identity, may in practice become an obstacle for rights protection by hindering efforts to identify minority groups. This, in turn, may provide justification for authorities' reluctance to prosecute perpetrators who base their action on perceived ethno-racial identity. The second consequence of the, false understanding of free of choice identity as a legal right protected by international instruments concerns remedial measures, affirmative action and minority rights as ethno-cultural claims. If we were to accept the existence of such a legal right, the subsequent lack of requirements for both minority group-recognition and membership opens the possibility for misusing these rights, enabling members of the majority to enjoy preferences they should not be eligible for, and sidelining those whom these policies should be targeting. The paradox lies within the basic tenet of legal logic: if there is a right to free choice of identity allowing human beings to opt out from racial, ethnic or minority (minority) communities, the very right necessarily needs to include the freedom to opt in somewhere, either to the majority or to any chosen minority group. I will argue that the latter is hardly something international law would set forth, and the former, the right to assimilate into the majority, also only exists only in a rather limited way.