Legal approaches to operationalize nationality and ethnicity

Starting on September 1, 2020 the four-year project is triggered by the fact that the past decades brought transformative changes in how the meaning of the terms of national and ethno-racial identity are assigned and conceptualized in social sciences and humanities, and to a certain degree in politics and law. The lack of solid and up to date vocabulary is particularly stark in the field of law, as law, especially human rights law, habitually operates with the concepts of race, ethnicity, and nationality when setting forth standards for the recognition of collective rights, protection from discrimination, or establishing criteria for asylum or labeling actions as genocide, or requiring a “genuine link” in citizenship law, without actually providing definitions for these groups or of membership criteria within these legal constructs. The project is aimed at mapping the role and potential of law to conceptualize and operationalize (i) nationality, ethnicity and race; (ii) various types and forms of legal institutions and policies built on these social constructs, as well and fostering claims made along these lines; (iii) and the role of identity (subjectivity) in the operationalization in these policies.

The research is twofold. It offers abstract, universally applicable proposals for conceptualization and operationalization, and provides a number of case studies that pave the way for further research. The project, thus stops short of setting forth one all-encompassing definition: this is to be further explored through subsequent research including geographic areas and lacunae not explored in here. However, the project participants’ dissemination of the research findings and deliverables at international conferences and workshops are anticipated to converge into a larger international comparative research collaboration, under the auspices of the Center for Social Sciences and using the research team’s network (who are all part of the international research scene), as well as the International Association of Constitutional Law (IACL) Research Group on identity, race and ethnicity in constitutional law, convened by the principal investigator.

The research project is mostly qualitative in nature, relying on desk research of case law, legislative text-analysis and archival work (for stream 2.) Thus, legal and policy documents will be the main sources. There are five streams in the research project.The first will focus on the general questions of conceptualization and operationalization, identifying the framework and future expansion of the project. Andras L. Pap will carry out research on the conceptualization of fraud and the role of subjectivity in designing and implementing legal frameworks, as well as the conceptualization of ethno-national and racial group-formation in the light of select case studies such as refugee law, hate crimes legislation, preferential treatment-frameworks and religious freedom.The second stream, and the first case study (involving Balázs Dobos, Iván Halász, Norbert Tóth and Balázs Vizi) focuses on various models for autonomies and the recognition of collective rights-claims by national minorities. In this stream Balázs Dobos will investigate the way subjects are identified in autonomy-models, focusing on Hungarian, Slovenian, Croatian, Serbian and Estonian legal frameworks. Balázs Vizi will carry out a research in international minority rights law, focusing on how international organizations and instruments define minorities, with special attention on the Framework Convention for the Protection for National Minorities, and on a minority definition within EU-law. Norbert Tóth will also focus on international minority rights law, in particular on whether there is regional customary international pertaining to defining minority communities. He will also identify how customary rules evolve and improve regarding international minority rights law and adjacent legal areas (international human rights law, international refugee law, international migration law, humanitarian law etc.). Iván Halász’s research centers on how Visegrad countries define and identify minority groups (as for example in the Czech Republic recently the Vietnamese community gained official recognition). Besides investigation group rights, including the construction of the nation sharing a citizenship, the term "self determining people" is also explored, along the assessment of the rights to secession in a non-self-determination context by Zsolt Körtvélyesi. János Fiala-Butora will carry out research in international minority rights law, with special attention on the Framework Convention for the Protection for National Minorities and the European Charter of Regional and Minority Languages, focusing on the reasons of international organizations’ and instruments’ failure to provide effective protection to minority communities. The third stream will have the Jewry, a religious as well as an ethno-racial, and a national community in focus. Here a historical analysis of the Nurenbergian Laws-inspired Hungarian legislation in the interwar period by Veronika Lehotay and Gábor Schweitzer will be complemented with contemporary legal analysis. Nora Bán-Forgács will conduct interviews in the US and Israel on how Hungarian origin effects national identity and loyalty to the State of Israel and the USA. The fourth stream (involving Andras L. Pap, Lilla Farkas and Sara Hungler) will have the Roma, a racialized ethnic minority with heterogeneous self-identifications and expert identity constructions on the basis of social class and national minority status in focus. The fifth stream, involving Andras L. Pap, Szabolcs Pogonyi, Zsolt Körtvélyesi, Nóra Chronowski and Katalin Szajbély will provide a set of overarching, cross-cutting analysis. Katalin Szajbély will research a possible model of a comprehensive non-discrimination strategy, with special focus to the importance of conceptualization of the group concerned by each of the components of the strategy, with a view to possible intersections between diverse factors, especially race and religion. Szabolcs Pogonyi’s research will focus on citizenship and identity, investigating the impact of citizenship legislation on national identity and identification, i.e. how naturalization policies affect identity constructions and perceived identity in the case of the Hungarian Diaspora. He will conduct interviews in Romania, Serbia, the US and Israel. Zsolt Körtvélyesi will focus on the rights of indigenous peoples: how these targeted minority rights compare to the European model of the rights of persons belonging to national minorities, both on the international level and on the level of national practice, what are the reasons for divergence and whether these are normatively justified. Nora Bán-Forgács will also conduct research on racial and ethnic classification in the light of the new European GDPR, and she will also study the US data protection regime related to ethnic and minority rights. She will also conduct a series of interviews with ethnic and religious minorities on how the lack of an effective data protection regime in the US effects their minority rights. She will also explore American case law on anti-discrimination related to migration.Nóra Chronowski’s research focuses on how the ethnicity and other identity-forming features are perceived by the courts on national and European level by analyzing the case law of ECJ and ECtHR. In sum, as for the thematic and regional focus, the stage will be set forth for expanding the scope of research for the racially much more complex Latin-American or African context, and a conceptual link will be established bridging discourses on national minorities and operationalizing ethnicity in other geographic locations and lacunae, as the very aim and novelty of the project is create a sustainable and practically opeationalizable theoretical framework and vocabulary for “worlds” apart both in geographic, time and conceptual terms. The project envisages significant impact within and beyond the legal academia, fertilising related disciplines (minority studies, citizenship studies) as well as practice (as it may assist developing social policies that better target their beneficiary groups).

The project provides a unique opportunity to convene scholars working on different fields and areas of law to create novel and illuminating intersections for understanding how the multifaceted and complex phenomena of national identity and ethnicity can be conceptualized and operationalized by law and legal institutions. All the researchers, who will create a unique scholarly and institutional synergy, have a strong background in their fields of research and most have already worked together in several research projects. The project team builds on the co-operation of seven researchers from the Institute of Legal Studies at the Centre for Social Sciences, two from the Institute for Minority Studies from the Centre and scholars from the National University of Public Service, Central European University, the University of Miskolc and the European University Institute.

András L. Pap, the principal investigator published widely on the issue of the legal conceptualization of ethno-national identity, he recently ended a Marie-Curie Fellowship designated on the scrutiny of this question. In 2018 he founded the International Association of Constitutional Law (IACL) Research Group on identity, race and ethnicity in constitutional law – a research network this project will also integrate and benefit from. Katalin Szajbély, a senior civil servant working for the Hungarian Commissioner for Fundamental Rights, but acting as an independent researcher in this project, is an expert of the theory of equality legislation, along with concepts of comprehensive non-discrimination strategies, including positive measures and reasonable accommodation based on cultural/religious affiliation. Balázs Dobos (Centre for Social Sciences Institute for Minority Studies), in his recent projects investigated how different minority communities seek to achieve representation through various institutional channels to make their voice heard, including the unique phenomenon of Roma political parties as well as the elected variants of non-territorial cultural autonomies (NCA) in Central and South Eastern Europe. Szabolcs Pogonyi (CEU) is the leading authority on citizenship policies. His current research focuses on diasporic nation building, transborder minorities, non-resident citizenship and external voting. Gábor Schweitzer and Veronika Lehotay (University of Miskolc) are renowned scholars of legal history with demonstrated expertise in the era and topic targeted in this project. Lilla Farkas is a scholar with extensive litigation and practical experience. Iván Halász, Balázs Vizi (Centre for Social Sciences Institute for Minority Studies) and Norbert Tóth (National University of Public Service), are scholars specializing in human and minority rights in international law, European integration and minorities, ethnopolitics, public international law, autonomies, Hungarian kin-state policy and neighborhood policy, are the leading experts on analyzing models and institutions for the political representation of national minorities and collective rights. Harvard-trained Zsolt Körtvélyesi is a reckoned scholar on minority rights.  Sara Hungler is a leading labour law scholar. Nora Ban-Forgacs works on constitutional theory, data protection in ethnic and minority context. She graduated from Yale Law School and worked as a senior advisor and chief of Cabinet for the Hungarian Data Protection Ombudsman. She also worked as legal expert for the Hungarian Commissioner for Fundamental Rights, and has an extensive international human rights experience, having served as senior advisor for OSCE, and consultant on international and EU founded human rights projects mainly in the West Balkans. Nora Chronowski is a leading constitutional scholar. János Fiala-Butora, former Max Weber Fellow at the European University Institute and Harvard JSD is also a practicing human rights lawyer, consulting with governments on human rights laws and policies, and brought landmark litigation before international courts on behalf of persons with disabilities. Most members of the research team are experienced project-implementers, and composition is aimed at providing a stimulating mix of scholars in terms experience, age, and gender.