Process and Considerations when Developing Innovative ‘Soft Law’ Standards for Application in Diverse Societies: The Example of the HCNM Guidelines on Integrating Diversity
Recognizing the reality of ethnic, linguistic, and religious diversity within OSCE participating states—which will remain and in many cases increase in the foreseeable future—the HCNM seeks to highlight the positives of such diversity. For this reason, from the beginning the HCNM has encouraged open and peaceful processes of integration which accommodate difference through choice drawing on creative solutions and alternatives which are consistent with human rights standards. This is pursued through specific country engagement and elaboration and application of general recommendation and guidelines as described in sections 3 and 4.
The overall approach adopted and promoted by the HCNM is one of ‘integrating diversity’. Broadly speaking this is conceived as a ‘two-way process’ whereby persons belonging to minorities, acting alone or in community with others, are given adequate opportunity to maintain and develop their distinct identities, while at the same time participating fully in and making a contribution to wider society and respecting the territorial integrity of the state. Integrating diversity goes hand in hand with ‘good governance’, whereby governing institutions are committed to act in the interests of their whole populations by creating comparable conditions and opportunities for all to pursue their own development and fulfil their own aspirations on an equal basis with others.
In 2009, the then HCNM, Knut Vollebaek, instigated a process to consolidate the HCNM’s proven and accepted approach of ‘integration with respect for diversity’ within one document and across policy areas into a comprehensive whole. The document, as with previous recommendations and guidelines, would be rooted in international soft and hard law and based on real experience and potentially transferable lessons. While thematic recommendations (relating to language, education, and participation in public life, etc.) already existed these would be incorporated and updated in the light of emerging (effective) state practice. New elements (e.g. relating to social and economic participation) would also be introduced. The process eventually led to the elaboration of the 2012 Ljubljana Guidelines on Integration of Diverse Societies.
A review of the process of debating, elaborating, and agreeing the content and text of the Ljubljana Guidelines serves to highlight some current issues of contention, including conceptual issues, in the interpretation of existing minority rights and other standards relevant for integrating diversity. It also raised some questions concerning the extent to which emerging norms from national practice with the capacity to restrict rather than protect rights should be reflected in the development of such recommendations and whether and to what extent ‘political will’ within states should be a factor for consideration.
-  The authors (under the leadership of John Packer who served as Senior Legal Adviser thenDirector of the Office of the OSCE HCNM from 1995 to 2004) coordinated the process for theinitiation and early development of the Guidelines and contributed substantively to their eventualelaboration.