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The Nature of Diversity Management

As noted in the Introduction to this book, in some cases soft law appears to constitute a primary reference point with no prospect for codification or crystallization into hard law. It also has some advantages in terms of speed and flexibility. Indeed, the subject matter of minority rights is arguably more suited to a soft law approach as contrasted with a more prescriptive hard law one. The open and ‘programmatic’ wording of minority rights instruments such as the FCNM is often regarded as a disadvantage in that it allows loopholes for states to circumvent their legal obligations. This is undoubtedly the case in some instances both with regard to the scope of application of the instrument (e.g. where states limit enjoyment of minority rights to citizens only) and the failure to implement specific provisions because they are couched in vague terms. However, the ‘soft’ character (which applies also to [1]

the FCNM even though it is a legally binding treaty) is not necessarily a disadvantage when it comes to conflict prevention through the constructive management of diversity in a normative framework that includes respect for minority rights. As the experience of the HCNM has shown, because soft law instruments at his or her disposal (particularly the FCNM, OSCE commitments notably the Copenhagen Document, and his or her own soft law jurisprudence and standards) do not overly favour standardized and precise formulations they can be flexibly adapted to country-specific circumstances. The diversity of states in terms of size, concentrations, and expressed needs, interests, and claims of its minority populations makes specific prescriptions unsuitable. The Explanatory Report to the FCNM is clear that the decision to include mostly programme-type provisions was based (at least partly) on the fact that minorities’ different living conditions demand a more policy-oriented norm setting.^ The provisions set out objectives which the parties undertake to pursue, but they are granted a ‘measure of discretion’ in their implementation of those objectives, thus enabling them to take particular circumstances into account.[2] [3] [4] [5] Another advantage of soft over hard law, as identified by Brostig, lies in the ability to address more informal and subtle forms of discrimination in situations permeated by mistrust and the passive acceptance of racist or discriminatory attitudes by politicians and the majority of society. As he observes, hard law instruments appear insufficient on their own to effectively remedy situations where forms of unequal treatment are taking place below the legal thresholds7

As also illustrated with regard to the HCNM’s recommendations regarding the language(s) used in higher education, the absence of precise norms can also work in favour of minority protection and act as an amplifier. As noted in the Introduction to this book, both states and non-state actors may prefer soft law ‘in order to respond more quickly with less paucity and more flexibility’. 38 The potential, however, needs to be actively promoted by monitoring bodies which have responsibility for clarifying unclear norms and preventing the exploitation of legal imprecision^9 This is essentially what the HCNM does in developing detailed recommendations on state practice within the scope and objective of the relevant instruments. HCNM experience in promoting viable solutions with reference to soft law standards (including those of his or her own creation) illustrates that because soft law provides discretion states actively engage in a norm-creation process themselves.

It should be noted that successful implementation cannot be measured against a desirable ‘end state’, because contextual conditions will evolve as implementation progresses. This is not to say that progress in norm implementation should not be evaluated, but there is no single moment when a state can be considered to have ‘passed the test’ with regard to managing tensions in society because this is an ongoing process. The HCNM may decide to scale down engagement or even withdraw, however, once state practice is sufficiently in line with international standards and the presence of tensions that threaten to escalate into violence has dissipated.

  • [1] 2 This has transpired in the drafting process of the Law on the Protection of Rights and Freedomsof Minorities of the Federal Republic of Yugoslavia, adopted on 27 Feb. 2002. It is not without a significance regarding the promotion of the soft law standards that just before the drafting process began,the HCNM held a conference on Minority Protection, Integration and Stability in South-EasternEurope in Bled in Slovenia with the different representatives of the Yugoslav government and minorities discussing extensively the HCNM’s thematic recommendations that were translated into the locallanguages. See: Kemp (2001): 199. This was later deleted, as references to international obligationswere not included in the final draft. 33 Packer (2000): 719. 34 packer (2000): 718.
  • [2] FCNM Explanatory Report on para. 11.
  • [3] 36 FCNM Explanatory Report on para. 11.
  • [4] M. Brostig, ‘Implementing Soft Law: The Case of Equality Promotion’, European Yearbook ofMinority Issues vol. 9 (2012): 152.
  • [5] See the Introduction to this volume. 39 See the Introduction to this volume.
 
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