Phd Course
The Doctoral Program in Individual Person and Legal Protections
Accademic Year
2016/2017
Ethnic Minority Rights in Iran:
Defining Legal Deficiencies and
Their Impacts on Ethnic
Minorities Rights
Author
Ramin Rezaei
Supervisor
Professor Vincenzo Casamassima
Index
Analytical Summary……….7
Research Questions………...9
Methodology……….9
Chapter I. Ethnic groups in Iran: the target and eras of the research……….13
1. Introduction………....13
1.1. General brief Information and statistics about the population and ethnicity………...14
2. Iranian Identity and ethnic identity in Iranian society: roots of the legal tensions………19
2.1. Iranian Identity during the Qajar dynasty up to 1925: Before the advent of modern legislation………...20
2.2. Iranian Identity during Pahlavi era from 1925 until 1979: Modern and secular legislative period………...23
2.3. Iranian Identity in the legal policy of the Islamic Republic of Iran………..24
3. Ethnic identities in Iranian society and legal structure………..27
3.1. Categorizing minorities based on religion: Recognized and unrecognized minorities……….32
4. Iranian versus Ethnic identity. Ethnic Identity in Iranian legal structure: The challenges……….33
Chapter II. Comprehensive Review of the Minority definition………..37
1. Introduction………37
1.1. Objective and Subjective sociological approach……….…39
1.2. The concept of minority in the political context………42
2. Minority in law…………..……….43
2.1. Definition of scholars:………44
2.2. The concept of minority and protection in the international law………51
2.3. Chronology of minority definition……….…52
2.4. Concept of minority in the Article 27 of International Covenant on Civil and Political
Rights………..…55
2.5. The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic………56
3. Characteristic of the minority in international level………..56
3.1. Collectivity or individuality, self-determination, secession and connection to the principles of equality and non-discrimination……….………57
4. Notion of minority in the European context………...61
4.1. A. Council of Europe………...……62
4.2. Minority perception in EU and the protection system nature………..65
5. Definition of Ethnic or Linguistic Minority in the Iranian Legal context………70
6. Conclusion……….……….75
Chapter III. Iran, minorities and international human rights obligations………..77
1. Introduction………77
1.1. The position of International human rights law within Iranian legal structure: external and internal perspective………...………..78
2. Iran and International human rights law in regards to ethnic minorities: Obligations and standards……….………86
2.1. Iranian government obligations in regards to ethnic minorities in international human rights law………...87
2.1.A. Iran, Genocide Convention and the minority rights………..88
2.1.B. Article 27 of ICCPR………...………...90
2.1.C. Convention against Discrimination in Education 1960………..93
2.2. Standards: The UN Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities, proclaimed by the General Assembly in 1992………95
3. The implication of the International obligations and standards in regards to the ethnic minorities and legal political obstacles………..………..96
3.1. Internal Absence of the constitutional court: Public law without cases. Iranian constitution and ………..………..96
Guardian Council: semi legal structure, but not a court: The impacts on ethnic fundamental rights in the constitution………..……….98
3.1.A.Question of other probable methods of control of constitutionality………...…100
3.2. International Obstacles………..102
3.2.A. Ethnic Group Rights in the Reports and the Reasons of Inefficiency……….………104
Chapter IV. A Comparative look at the linguistic rights within the framework of the minority-oriented approach in Iran: from theoretical ideas to the constitution of the Islamic Republic of Iran……….………..113
1. Introduction……….………113
1.2. Law as an instrument for the linguistic management……….114
1.3. Politicization of ethnicity and heterogeneity between the official or majority and minority languages………..………116
2. Legal Attitudes towards Multilingualism……….118
2.1. The difficulty of the of approaching to the unique legal method in linguistic policy….……119
2.1.A. The question of minimum international standards………120
2.1.B. Separatism as a barrier in international legal consensus………..……120
3. Iranian Case………..…123
3.1. Legal transplantation of the western concept of nation-state in the Iranian legal system………...…124
3.1.A. Iranian constitutional Law and Multilingualism: Historical, Constitutional and Empirical
Analysis………...……….126
3.1.B. Historical Background: The Constitutional Revolution and its Legal impacts on linguistic policy in Iran……….128
3.2. 1979 Revolution and the Islamic Republic Constitution………133
3.2.A. Linguistic pluralism versus minority-majority structure in the constitution………135
3.2.B. Principle of equality versus language favorism in the constitution…….………137
3. 2. C. Equality in the Iranian Legal structure and linguistic policy……….….…………141
4. Conclusion………147
Chapter V. Ethnic groups and probable solutions: Federalism as an option………149
1. Introduction………..………149
2. Definition of Federalism and its connection to ethnic minority accommodation………..152
2.1. Ethnic federalism……….……….………….157
3. Multinational and multicultural utopia and describing the ineffectiveness of the traditional structure of the unitary nation-states………160
3.1. Politicization of ethnicity or Mosaic methodology……….……….…….……162
4. From Unitary Reality to federal Idea: The structure of the political system, legal and administrative Iran and Idea of Ethnic Federalism……….168
4.1. After the constitutional revolution to the Islamic republic of Iran………..…….……169
4.2. Challenges of federalism or semi federal structure for accommodation of minority rights in Iran……….………….………..171
Chapter VI. Conclusion………...……….178
Analytical Summary
The research discusses the rights of ethnic minorities in the legal structure of the Islamic Republic of Iran. The focus of this research is on the introduction, identification, and analysis of legal problems facing ethnic and linguistic groups in Iran. An overview of Iran's contemporary history shows that there have always been challenges and tensions between tribal and linguistic groups and the central government. In many cases, tensions between linguistic and ethnic groups in Iran and the central government have led to violence. Despite such a history, it seems that there is not enough analysis on the causes of these challenges and ethnic tensions, especially from a legal point of view. Unfortunately, due to various reasons, investigating the legal dimensions of the problems of linguistic and ethnic groups in Iran has been accompanied by some obstacles and limitations. The problems of ethnic and linguistic groups in Iran are ignored by political and security considerations and independent academic studies in this area are limited or censored. These limitations are while the evidence that suggests the existence of deep gaps as regards the implementation of the legal principles at the practical level.
The research begins with a short overview of the legal norms that govern the area of ethnic minorities in Iran. It is evident that since the constitutional revolution in 1907 until the present time,
the issue has not received adequate attention from legislators. For example, until the second Constitution was adopted before the revolution of 1979, the term minority and ethnic diversity were not reflected in the Constitution. Even after the 1979 revolution and several changes that were made in laws afterward, the requirement of the Article 19 of the Constitution that foresees the principle of equality of the Iranian people and ethnic and tribal diversity, has not been implemented entirely.
The research results of the project have demonstrated that the issue of language and linguistic policy plays a crucial role. Iran is a multi-ethnic and multi-lingual country. The notion of linguistic plurality stems from Article 15 of the Iranian Constitution. Controversially to the Article 15, the Persian language has been reaffirmed as the official language in the following words:
“Persian (Farsi) is the official language and script of the Iranian people. Documents, correspondence and official texts and textbooks shall be in this language and script, but the use of regional and tribal languages in the press and media and the teaching of literature in schools, in addition to Persian is free.”
The issue of minorities has been one of the most challenging topics throughout the history of the previous century. The challenge of Iranian ethnic groups has a special place in the field of ethnic rights. The research provides an analysis of several problematic questions such as the existence and recognition of alleged rights, right to mother tongue, also public and official use of the mother tongue. Assuming that these kinds of rights do exist, it raises further questions whether a state is obliged to support all languages equally in a multi-lingual country. In case the answer to these questions is definite, it leads to further debate on what kind of measures should be considered to deal with the shortcomings of legal norms. The study consists of a theoretical analysis of the foundations of the rights of minorities in order to provide a comprehensive perspective on the rights of ethnic minorities in Iran. The research is conducted by exploring the legal history as well as legal, political theories of minority rights.
There are a lack and insufficiency of theoretical bases, definitions, and recognition of ethnic minorities in Iranian law. The research aims to analyze these definitions and models dealing with
ethnic minority protection through comparative study and analysis. The reason for this methodology is as professor Poggeschi argues comparative law in minority rights could be used as a privileged instrument in that it offers solutions external to the law of the state in question1. Another purpose is to examine the possibility of pure legal transportation of these notions in the Iranian legal system. For example, there are some similarities as regards ethnic and linguistic diversity when comparing Iranian legal regime with European models, at the same time, there are crucial differences. These differences can be divided into different categories such as political and legal. The political debate which embraces the geopolitical situation of Iran as a Middle East Islamic country is not addressed in the research. The differences in the Iranian legal structure in comparison to other countries, mainly stemming from the historical background, should, however, not be ignored in this study. The 1979 Islamic revolution and emergence of political Islam, resulted in the creation of the Islamic Republic of Iran. This political regime is a combination of semi-modern structures of the modernization period in Iran during Pahlavi dynasty and a particular reading of Shia Islam. The complexity of the Islamic Republic structure has made it more challenging to conduct a comparative analysis of this legal structure and the western legal systems. The facts mentioned above are the reason why the pure legal transplantation is not adequate, and thus, it is necessary to study legal, historical and sociological reasons behind the existing system.
The first part of the research consists of an introduction to the figures and facts of ethnic minorities in Iran. The second chapter discusses the definition of the term minority at the international level. The third chapter discusses the situation of ethnic minorities in Iran in a comprehensive method based on domestic and international obligations and standards. The fourth chapter analyses the problematic issue of language in the legal context. The last chapter discusses federalism as a possible solution to the ethnic minority problem in Iran.
Research Questions
1G. Poggeschi, Language Rights and Duties in the Evolution of Public Law, Nomos, 2013,p.32.
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What are the main challenges to full implementation of the rights of ethnic minorities in Iranian legal structure?
Methodology
In this research, the law is seen as the outcome of the human exploration in response to finding solutions for the social conflicts. The law is not formed in vacuity and is affected by various social, historical, economic etc. factors. Interpretations of the laws and the codes in the legal orders, without considering these patterns would result in legal ambiguity. There is a tendency for many legal researches to focus solely on legal texts and the analysis of court judgments and jurisprudence. But undermining the other patterns that surrounded the legal systems reduces the accuracy and the functionality of the interpretations. For these reasons the attention to the social, historical and the politics that affect the notion of minority and minority protection in the Iranian legal system has been highlighted in this research. This the reason why there has been an attempt to avoid common practice in conducting legal research on minorities. In general, it is common for researches on minorities to focus on two elements. The first is enumerating the rights that have been codified in domestic or international law for minorities and examining them. The second is considering the case law and reviewing the rights of minorities in the existing case law. But in this research, there has been an attempt to slightly change the methodology by exploring more general and fundamental questions in regards to the protection of minorities. Given the significant literature on the issue of minority rights and the theories of these rights, this study does not address these issues as separate chapters. Such issues are included in the answer to the main question of the research wherever is needed.
In this research, the differences between the legal structure in the democratic Western countries and Iran, a country which is categorized outside of this democratic world, is considered. For example, while the notion of modern law and legal structure has formed and practiced in a gradual process in the most western democracies, it has been copied and implemented in a short
period in Iranian Society. Apart from the fact that we are not talking about a democratic structure in Iran's case, the result of this fast modernization is that the Iranian legal system lacks the maturity and technicality of the western legal structure. The immaturity of the Iranian legal systems refers to its short legislative experience and modern judiciary. The shortcoming in technicality is associated with the ill-founded and malfunctioned judicial system. As a result, conducting and implementing a research on a topic like ethnic minority rights in Iran is not simple legal task based on the case law. The nonexistence of the case law and pure technical legality in Iranian legal structure is the reason why that the other factors like the comparative terminological, and historical backgrounds are highlighted in different parts of this research.
This research is mainly conducted with the concentration on the interpretation of the laws that are contacted to the notion of minority. As one of the significant challenges of minority protection in Iranian and international level is the definition of the minority, this topic has been explored in one chapter to illustrate the problem of the definition of minority and the reasons behind it. Although due to the absence of such discussions about the meaning of minority in Iranian law, this part is mainly conducted in International and European law, it will contribute to the main contested argument about the definition. The challenge that which groups are the minorities and who and based on what criteria has the legal competence for defining the criteria or determine groups as a minority is an unsettled topic in Iranian and International law. For this purpose, the research in this part has been done in a comparative method in international level.
The other challenge of conducting this research is unfamiliarity of western scholars with the Iranian legal system. To have a more accurate picture, the Iranian legal system and its attitude to human rights in general and minority rights have been reviewed. Parts of the criticism by the international community on the situation of minorities in Iran are presented and analyzed. Furthermore, the main internal legal challenges of implementing international obligations and standards in the Iranian domestic law have been reviewed. In this review, the linguistic diversity and the constitutional linguistic policy of the Iranian state are identified as one of the most critical
challenges of minorities in Iran. As a result, one chapter of the research deals with the problem of accommodating linguistic diversity in the Iranian legal system. To conduct this part the political philosophy of multilingualism has been reviewed. Furthermore, the historical background of the formation of the Article 15 of the Islamic Republic of Iran’s constitution and its controversial connection to the Article 19 of the constitution and principle of equality of the Iranian people has been analyzed. The final part of the thesis is a review of the federalism and specifically ethnic federalism as a solution to the accommodation of diversity. The purpose is to find out the probability and challenges of this proposal in the Iranian context. To do this part a short review of the literature on the definition of federalism and ethnic federalism is done. Furthermore, the shortcoming of the Iranian legal structure for implementation of the ethnic federalism has been explained.
Chapter I. Ethnic groups in Iran: the target and eras of the research
1. Introduction
Iran is a country which has consisted of various ethnic, linguistic and tribal groups. Ethnic and linguistic diversity is a feature of the demographic composition of Iran and has a long history.In different periods of the Iranian history the country has been governed by the elites of each of these ethnic groups.Over the past few centuries, Iran has been ruled by kings of diverse Iranian ethnicity. Due to the diversity of tribes in Iran and the lack of a modern structure until the beginning of the twentieth century, there has always been a struggle between tribal leaders to achieve political power. The tribal contention is the reason why Iranian history is full of bloody conflicts between the various tribes in the rivalry for acquiring power. The arrival of modernity in Iran has changed the traditional tribal structure of society and the way to achieve political power. But the arrival of modernity and the modern state to Iran has not been easy and has faced various challenges.Two of the challenges of implementing the modern state in Iran was Islam and the tribal structure of society. On the one hand, Muslim clerics disagreed with all the manifestations of modernity and the modern state, and they viewed it as opposed to Islam, and on the other hand, tribal structures with a linguistic diversity were a serious challenge.The challenge of modernity and the modern state with Islam and the tribal structure of Iran, although there were many advances, remained unresolved until now. Muslim clerics turned to political Islam to face and control the modern state and its
institutions. The primary goal of Iranian modernity about the tribes was to establish a Persian-speaking community with Iranian identity.In the context of tribal structure, although the modern state severely changed the tribal structure of Iran, which was known as a “Molk-Al-Tavaefi” or kingdom of the tribes, it was not successful in creating a homogenous society. The modern state has changed the tribal conflicts that traditionally existed in Iran to the ethnic challenges.The challenge of ethnicity was a modern concept that later extended to other elements such as the identity and rights of ethnic and linguistic minorities .More than one century after the start of the project of modernization, which started by elites and politicians, still there are visible cultural and linguistic distinctions between Iranians in different parts of the country. Despite the emergence of a modern or semi-modern state in Iran today, the challenge of ethnicity and ethnic and linguistic groups is one of the most important reasons for the potential conflict in Iran.Nevertheless, this challenge, due to reasons mentioned in this research, has been underestimated by Iranian politicians and researchers.
The continuation of the challenge of ethnic and linguistic groups in Iran one hundred years after the establishment of a modern state and constitutionalism has several reasons. Among the various reasons counted for this alleged tension, there is one which is directly associated with the law. There is this assumption that at least this challenge is partially caused by the existed inequalities in society between various ethnic groups. Legal inequalities are part of this discriminatory structure. These inequities despite their impacts on the issue of ethnicity and ethnic minorities are not necessarily ethnic oriented. For example, the unitary structure of the state, which has led to political, economic, and cultural centralization, was created due to historic demands, today affects the rights of Iranian ethnic and linguistic groups. Over the past decades, the centralized structure has created cultural, economic, and political inequalities between the center and its Persian speaking population and the border regions of Iran, where ethnic groups generally live. After this brief introduction, in this section, public information will be provided on the composition of the ethnic group and the concepts of ethnic and Iranian identity.
1.1. General brief Information and statistics about the population and ethnicity
One of the characteristics of Iran, as mentioned, is the existence of ethnic and linguistic diversity. The different ethnic groups and tribes have inhabited together in this territory for hundreds of years. The structure of Iranian society was predominantly tribal before the beginning of modernity. In the absence of the modern state, the leaders of the tribes as the regional rulers were responsible for the stability in their tribal region. Despite the fact that after the project of modernization the tribal structure came to an end still its impacts are visible in the form of ethnicity in Iranian society. As a result, even nowadays the ethnic diversity in the Iran is an undeniable fact. It is necessary to have a general perspective if Iran’s complex ethnic and linguistic composition before discussing any other topic in this regards. It is, therefore, essential to look at the map of Ethnicity in Iran.The map of Ethnicity is an illustration ofrelevant aspects connected to the ethnic groups such as ethnicity, language, culture, customs and religion of individuals.
As the first point, it is also important to bear in mind that our statistics are not entirely in accord with reality. The reason for this uncertainty is the lack of accurate statistics on ethnic diversity in Iran. The main reason for such ambiguity is that the ethnic information is not considered in the population census. As a result, there are no accurate statistics on the numerical composition of ethnicity in Iran.The last time data on ethnicity and language were collected was in 1976, during the second Pahlavi monarchy (1941–1979) and accordingly, it puts Persians at 51 percent of the population, Azeri at 25 percent2.In the Statistical Center of Iran’s code3, there is no reference to the ethnic census. It should be noted that this type of census is not prohibited by the law. Paragraph (A) of Article 1 of this code, defines the census as collecting information of the population that includes “social” and “cultural” information as well. At the same time, paragraph (b) of Article 11of this law, considers the "High Council of Statistics" as the legitimate official body
2 Statistical Centre of Iran, General Census of Population and Households, 1976, Tehran , available on
[website],https://www.amar.org.ir/english.
3 The Statistical Center of Iran code was adopted by the Iranian parliament in January 30, 1975.
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for planning the statistical priorities. Then this council based on the necessities can make decisions on the types of information that should be collected.
Although there is no legal prohibition on collecting ethnic statistics, there are no official statistics available to the public in this case. The absence of ethnic data has been criticized by some individuals and activist who are affiliated with the ethnic groups. They demand collection of this information by the state.
Due to the lack of accurate statistics, we rely on estimates and the information that is provided by another institute. There are various estimates of the ethnic composition and statistics in Iran.But most of this information is based on estimationsand are not accurate.It must be taken into account that some of the figures are presented on the basis of the political interest of various parties4.Such a Unenforceability can be seen in the significant differences that exist between some of these statistics. The following figures are two examples:
• According to the CIA fact book 2014, Iran's population is formed of Persian 61%, Azeri 16%, Kurd 10%, Lur 6%, Baloch 2%, Arab 2%, Turkmen and Turkic tribes 2%, the other 1 %.
• According to the CRS report for the US congress 2008 Iran’s population is formed of Persian 51%, Azeri 24%, Gilaki and Mazandarani 8%, Kurd 7%, Arab 3%, Lur 2%, Baloch 2%, Turkmen 2%, the other 1 %.
• Dr. Ahmed Shaheed the Special Rapporteur considered that the outcome of the Islamic Republic of Iran states in his report of the October 2012 based on the report of the Unrepresented Nations and Peoples Organization, “Ahwazi Arabs5” that “It has been estimated that 4 million Arabs live in impoverished urban slums,…”
4 Iran's ethnic diversity has many internal and external stakeholders. Apart from the government in the Islamic Republic of Iran, ethnocentric or separatist ethnic group, kin-states are parts of these stakeholders.
5 A non-governmental organization
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As it is illustrated in the figures mentioned above, there are visible differences between the presented statistics. So it is challenging to give exact numbers of Iran's ethnic composition .But it cannot be denied that Iran has different ethnic groups with linguistic diversity.
According to the Iranian Statistical Center of Iran’s population of eighty million people had crossed in 20166.Despite the inaccuracy in the statistics it is possible to claim that the main ethnic groups in Iranare Persians, Turks, Kurds, Lurs, Arabs, Baluchi, and Turkmen.Most of these ethnic groups are concentrated in the specific ethnic territories. For example, the concentration of Iran's Turkic-speaking population, or Azeri, is in the North West.Iranian Kurds live mainly in the West and Arabs are concentrated in the South West of Iran.However, again, it is not easy to provide an accurate statistical map that will show Iran's ethnic distribution.So for ease of discussion, we offer one of the maps of ethnicity and language7.
As these general statistics illustrate Iranian society has specific characteristics which raise different political and legal questions. The first point is that Iran is a multi-ethnic country and consisted of diverse populations. On the other hand, it does not include a homogenous population as it is repeated continuously after the 1979 constitution. The second important characteristic is connected to the issue of language. Despite the fact that the language of the majority is Persian there are other languages in the country. Persian as the official language is used by the other ethnic groups in public or official situations and as the second language in private life. In the fowling part, there will be more detailed on the topics mentioned above from the historical elements to the present legal challenges.
6https://www.amar.org.ir/english, ,[website],
7 It should be considered that the proposed map is not accepted by various ethnic, linguistic groups as well as the Islamic Republic of Iran. This image is an unofficial map which is based on estimation.
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This map, despite its inaccuracy, offers a general overview of the composition of ethnic and linguistic diversity in the Iran. As can be seen in the map the majority of Iran's population is Persian. Although, this language is used in some areas with a different accent. For example, Lur ethnic groups that are the second regarding population in Iran use a dialect of Persian. After the Persians Lurs are the most abundant ethnic group and mainly is inhabited in the northwestern part of Iran.
Different ethnic groups are living in several different provinces of the country. In some provinces, Persians, Kurds, and Lurs ethnic groups are living together. For example, in Western Azerbaijan province combination of the population is approximately equal between the Kurds and Turks. In addition, Azeri people are living in many other provinces of Iran. In regards to the language, it can be argued that the whole Azerbaijani populations in Iran are using both Persian and Turkish. The Kurds are the third largest ethnic groups that use another language in addition to
Persian. This ethnic group mainly lives in the Western part Iran .Parts of the population of this ethnic group are inhabited in the other parts of Iran. The other Iran’s major ethnic groups, with different languages, are Arabs. This group lives mainly in South West Iran. In addition, there are other ethnic and linguistic groups in Iran such as Baluchi, Turkmen, and Armenians.Also in there are some minor cultural or linguistic differences among the people in these groups. Since our research focus is on the three ethnic groups of Turks, Kurds, and Arabs, we will address the issues associated with them.
2. Iranian and ethnic identity in Iranian society: roots of the legal tensions
National solidarity is one of the means of survival of the modern state. It is difficult to imagine the efficiency of the modern state in a society where there is no national solidarity. Maintaining national unity is so crucial that the governments consider various measures to promote it. These actions can be political, cultural and legal. For example, the national legislation which specifies one or more language as the official language is one of these measures.
There is this presumption that what make the ethnic groups in a multi-ethnic society as one nation is their common bonds. These bonds create a different identity rather than ethnic identity. Such character can be called national identity.In multi-ethnic countries such as Iran's establishment and maintaining national unity has been a disputed issue.The emphasis of each of the ethnic groups forming a nation on their culture and language could weaken the solidarity and national identity. Iranian nationalists believe that in countries such as Iran, which has an extensive ethnic diversity are much more important to preserve national unity.Different reasons can be cited for maintaining and strengthening national identity in Iran. Ethnic tensions historical, linguistic and cultural tensions in the community, government performance efficiency in the public domain, preventing ethnic conflict
are some of these reasons.Many scholars in Iran insist on the necessity of implementing national, ethnic policy in order to strengthen national unity8.
The desire for maintaining national unity is reflected in the constitution of the Islamic Republic of Iran. The article 19 of the constitution states that Iranian people have equal rights regardless of their ethnic ties9. Although the principle of the constitution insists on equality of Iranians, also include National convergent views. It means that confirms equality based on Iranian and Iranian identity not based on the reality of multi-ethnic society. Pointing out that ethnic affiliation is not a reason to grant has had a profound impact on downstream legislation related to ethnic groups. Therefore, it is necessary to look at the historical background to better understand the position of Iranian identity formation in the constitution of the Islamic Republic of Iran.
2.1. Iranian Identity during Qajar dynasty up to 1925: Before the advent of modern
legislation
The emergence of nationalist historiography in the Qajar era is one of the most important issues of modern national identity formation in contemporary Iran.Since the introduction of modern Iranian nationalism as an ideology in the nineteenth century, many issues, including the legal structure were influenced by this ideology. The modern concept of national identity in the second half of the nineteenth century entered the political literature of Iran. Iranian intellectuals, with emphasis on the history of ancient Persia, laid the foundations of a new identity Iranian based on national the western perceptions of the national identity. This way of conceiving of national and ethnic identity has had an impact on the rights of ethnic minorities in Iran. The impact of the historical development of nationalism today can be seen clearly in the constitution of the Islamic Republic of Iran.This effect has been so sustained that, the Article 2 of the constitution of 1979
8 A. Nazari and B. Sazmand , ' Models and Patterns of Ethnic and Diversity Management: Provide solutions for Iran ', Journal of Public Policy ,Volume 1, Issue 1, Spring 2016,pp.108-112.
9 In the following sections, we review the interpretation of this Article and its relationship with Article 115 of the constitution which is about the official language of Iran.
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considers the strengthening of the national unity as one of the main goals of the Islamic Republic of Iran.
At the beginning of the Qajar dynasty, Iran's social structure was based largely on ethnicity. The establishment of this era is a period of continuing and strengthening ethnic identity as the main factor in the development of the social relations.The main components of ethnic identity reflected in the resources of historiography.Thus, the sources of this period, the concept of people of Iran or the people of Iranian territory are based on the ethnic and racial nature.Collective identity has been drawn on the basis of ethnic similarities. The external threat from Russia had reinforced the collective identity of ethnic groups based on religious identity. The cultural and ethnic and linguistic fragmentation foreign invasion has reduced ethnic tensions. On the other side, before the formation of the Constitutional Revolution, the modern western concepts of national identity were gradually entered in Iran. Prior to this period, the Iranian Identity mostly was limited to religious elements and nostalgia of ancient Persia.However,many legal and politicalscholars in Iran, make a distinction between national identity and Iranian identity. They believe the Iranian identity is a historical concept that has evolved over time based on a common language and culture while the national identity is new concept imported from Europe10.
The legal structure prior to the adoption of the constitution was resting on two pillars King and the clergy.Social power was within the competence of religious or monarchical powers, which in a broad sense were interpreted as the government. The king and the prime minister and his ministers were heads of state and the religious authorities and priest was the heads of the nation.The nation was considered in the sense of religious followersin theassumptions religious scholars. The traditional justice system, land and contract registry were within the competence of theclergymen as the nation's leaders and the political governance were within the competence of government11.
10 J. Emamjomehzadeh, ' Assessment of Iranian identity with modernity ', The Quarterly Journal of Public Law
Research ,Volume 10, Issue 25, Spring 2008,pp.5-6. [Persian] 11
M. Ajoudani ,Iranian constitutionalism “Mashroute-ye Irani ”, Akhtaran Publication ,Tehran,2003,p 165. [Persian] 21
Constitutional Revolution in Iran is the first exposure to the traditional Islamic culture and Western culture in Iran.Earlier, several failed attempts were made to modernize Iran, based on the Western model. Iran's initial intellectuals were the first representatives of modern ideas, especially the idea of a liberal, secular and egalitarian modernity. Among the demands of the intellectuals, was the renewal of Iranian national identity and traditions, a modern constitution and creating the foundations of the modern state in European style12. In this period there were three archaisms13, constitutional nationalism and Islamism identities.The interaction and conflict between these three have been the source of political and legal developments in the past century years in Iran.
Constitutional Revolution established a new phase of modernization and manifestations of the idea of nationalism in Iran's political system. One of the main symptoms of this nationalistic approach can be seen in the title of the first Iranian parliament ’Majles Meli’ or National Assembly. The significance of this name is at this point that, in a highly religious society nations and nationalities overcome religion. Iranian Constitutionalist made greater efforts to draw public attention to the necessity of nationalist historiography and the history of ancient Persia. They attempted to define and introduce a national identity by adopting a nationalist identity in the form of ancient Persia. Fereydun Adamiyat14 in his writings mentions to the dominant tendency of intellectuals to the idea of nationalism and symptoms such as home, homeland, and patriotism15. Thus, this period can be seen as the end of this extremely ethnic structural society. Because of the
lack of modern legal infrastructures such as centralized rules devoid of tension between the government and ethnic groups. Unwritten cultural and linguistic autonomy, due to the lack of law has been the features the Iranian identity at the beginning of the course.
12 H. Bashiriyeh, Political Sociology: The Role of Social Forces in Political Life, Nay Publications ,Tehran, 1996,p.257. [Persian]
13
Archaism is the cultural flows in order to create change in Iran. The main purpose of this ideology is the creation of a new order with the restoration and revitalization of ancient Iranian traditions and beliefs.
14 Fereidoon Adamiyat (1920 in Tehran – March 29, 2008), (Persian: ﺖﯿﻣدآ نوﺪﯾﺮﻓ ) was a leading social historian of contemporary Iran and particularly the Qajar era.
15 F. Adamiyat ,Ideas of Mirza Fatali Akhundzade, Kharazmi Publication,Tehran,1970,pp.115-108.
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2.2. Iranian Identity during Pahlavi era from 1925 until 1979: Modern and secular
legislative period
Intellectual nationalism during the Qajar period was not yet become the official ideology and considered to be more a subjective concept. Starting with the Pahlavi dynasty after the end of the First World War we see a new generation of nationalist intellectuals.These intellectuals have caused a major change in Iranian and ethnic identity. They offered a national action plan that had become the official nationalism of the Pahlaviand until the Revolution of 1979remained as a guide to the nationalist policies of the government.This written or unwritten programs by political elites has had a profound reflection on the legal structure. Iranian identity from a legal perspective has been strongly influenced by the Iranian nationalism.These effects begin with the start of the first political parties in Iran and then will extend to the laws of the country in all areas.A movement that could be considered as a form of the political influence in the legal world.
Pahlavi era can be called the stage of implementation of the policy of ethnic integration. During this period, centralization was seen as the main tool of the realization of the modernization. Major efforts were undertaken with the aim of moving from the previously existed ethnic and tribal identities towards a national identity. This policy has been interpreted as the tendency of creating the national unity around the constitutional monarchy system16.
The newly established political parties in Iran were seeking an untied Iranian national identity. For example, in the statute of the Revival Party17, there is an explicit demand for expanding the Persian language instead of language minorities across the country for the purpose of the creating an efficient administrative system and educational facilities to the public18. Newly emerging and influential Iranian press also was calling for the development of national culture for the masses.
16
J. Amuzegar, The Dynamics of the Iranian Revolution, New York, state University Press,1991,p.140.
17 Revival Party (Persian: دﺪﺠﺗ بﺰﺣ , translit. Ḥezb-e Taǰaddod ) was one of the first and influential political party in Iran. It was reformist and was made up principally of young and educated Iranians in Europe. The party was founded in summer of 1920 and was disbanded in 1960.
18E. Abrahamian, Iran Between Two Revolutions, Princeton University Press,1982,p.123.
23
Journal of “Iranshahr”, which was published in Berlin by Hussein Kazemzadeh19 from 1301 to 1306, was discussed in several articles to possible adverse results of orientation and ethnicity20.
Explanation of the historical context of Iranian identity formation is important because of its profound impact on the legal structure Iran in different aspects. These effects were more pronounced with the development of a modern legal system. The new generation of Iranian law scholar was following the western modernization and nationalistic unitary states of the years between the two world wars. They were demanding the implementation of the legal framework with an emphasis on issues such as how to apply and enforce the law. It was impossible to implement such policies in a multi-ethnic and multi-lingual society.In fact, law enforcement, in the light of the
public law, required the creation of a unitary comprehensive administrative and the judiciary system. Thus, the legal structure was more focused on creating a modern centralized authoritarian government rather than focusing on the individual rights. It should be noted that modern Iranian identity took shape in such an environment.
2.3. Iranian Identity in the legal policy of the Islamic Republic of Iran
The identity politics of the Islamic Republic of Iran were created by referring to the ideology of Islamic equality and creation of the Islamic nation or Ummah (Persian: ﺖﻣا ). So the identity politics of Islamic Republic shifted from the nationalistic Iranian identity to a kind of Semi-modern Islamic identity. However, it should be borne in mind that nationalist aspects of Iranian identity that has already established before the 1979 revolution did not disappear entirely. Shiite Islam had a notable impact on the success of the 1979 revolutionand had consequences for Iranian and ethnic identity. Religious revolutionaries viewed Iranian nationalism and identity in conflict with the revolutionary idealistic Islamic values.At the same time, for some reason, they were not
19 Hossein Kazemzadeh Iranshahr, January 10, 1884 in Iran, March 18, 1962 in Switzerland, was one of the pioneer influential thinkers of Iranian modern political thought. He was for a while diplomats of the Iranian Embassy in London.
20 Abrahamian, Ibid.
24
able to wipe nationalist Iranian identity. For example, armed groups carried out ethnic armed rebellion in some areas of the country.The spread of nationalist and Persian Iranian identity in the last fifty years made impossible the absolute Islamization of Iranian identity for the Islamic revolutionaries. So the Islamic identity of the revolutionaries was in conflict with both Iranian national identity and ethnic identity. So a new term entered the Iranian legal system to solve this conflict.This new term is called the Islamic Ummah. Ayatollah Khomeini religious leader of 1979 revolution addressed the view of Islamist revolutionaries in the new clerical leadership when he stated:
“Sometimes the word minorities is used to refer to people such as Kurds, Lurs, Turks, Persians, Baluchis, and such. These people should not be called minorities, because this term assumes that there is a difference between these brothers. In Islam, such a difference has no place at all. There is no difference between Muslims who speak different languages, for instance, the Arabs or the Persians. It is very probable that such problems have been created by those who do not wish Muslim countries to be united.... They create the issues of nationalism... and such-isms which are contrary to Islamic doctrines. Their plan is to destroy Islam and Islamic philosophy.21”
The word Ummah is used frequently in the legal system of the Islamic Republic, including the introduction and some articles of the Islamic Republic Constitution. It seems that the various principles of the constitution is not used to a single meaning. In preliminary proceedings The First Assembly of Experts22 the word “Ummah” is used in various positions. This term is sometimes used as the all the Iranian people with the assumption that all or the majority of them are Muslims. In the proceedings relating to Article 165 of the Constitution, in discussing the scope of authority of the Imam and leader, there is an important point in regards to the scope of inclusion of the Ummah and its connection to Iranian Identity. The question is raised that whether the legal and political
21
D. McDowall, A Modern History of the Kurds , I.B. Tauris & Co., 1996, p. 271.
22 The First Assembly of Experts, also known as Assembly of Experts for Constitution in Iran was elected in the
summer of 1979 to write a new constitution for the Islamic Republic.
25
authority of the prospect leadership of the Islamic Republic, includes religious minorities as well.In response, the Ummah has been interpreted by all the people of Iran.
In the introduction to the constitution, the word “Ummah” is used several times.Except for one case that it is used with the meaning of all the Muslims of the world this term is used in the sense of political community or the people of Iran. Therefore, the introduction highlights the attention of the writers of the constitution to the modern political, legal realities, while paying attention to theprevailed religious atmosphere.
The word “Ummah” is used in the principles of 5,11,57,109 and 177 of the constitution of the Islamic Republic. Under Article 107 of the constitution, leadership is elected by the Assembly of Experts selected by the "Iranian people".Due to the use of the term "Islamic Republic" in Article 5 and the fact that the “Imam of Ummah” mentioned in this article is referring to Iran's supreme leaderand its interpretation with Article 107, it is concluded that “Ummah” in these Articles refer to the Iranian people. It should also be noted that this constitution has been developed and approved for the Iranian people and it has been approved by them in a referendum.In conclusion, it seems the word “Ummah” in the constitution of the Islamic Republic of Iran is very close to the common concept of the nation in the public law.
Another sign of the willingness of the Iranian Islamic revolutionaries to change the nature of Iranian identity can be seen in changing the name of Parliament. The National Assembly was established on the basis of the first constitution in the Constitutional Movement of Iran. In Iranian
Constitution DecreeP22 F
23
P
, the name of the “National Assembly” is repeated three times. In the
Amendment of this decree, the parliament has been named as the Islamic Consultative Assembly.At the time of the Pahlavi, Iran's legislature was bicameral, consisting of the National Assembly and the Senate. After the 1979 Islamic Revolution, the unicameral legislature system was established. According to the Constitution of the Islamic Republic of Iran before amendment, the parliament
23 This is a decree for establishment of the National Assembly which was issued by Mozaffar ad-Din Shah Qajar, fifth Qajar king of Persia, in 1906.
26
called as the National Assembly. Inthe constitutionalamendment of 1989, the name was changed to the Islamic Consultative Assembly.
This change is another important evidence of the desire to highlight the religious identity rather than national identity after the revolution.This shows the lack of importance of the concepts like nationhood and national identity for the new rulers.Consequently, national and ethnic identities were under the influence of Shiite Islam religion-based identity.
Another element of Iranian Identity in the legal and political structure of the Islamic Republic of Iran is the Persian language.Article 15 of the Islamic Republic’s constitution declares the Persian language as the official and common language of the people of Iran. The emphasis of this article is on the utilization of Persian language in formal situations as an element of Iranian identity.Following this principle, a set of institutions and rules established for the expansion of the use of the Persian language. Creation of the Council of the development of Persian Language and Literature based on the decree of February 16, 1988, Supreme Council of the Cultural Revolution is one of the examples. Also, the activities of the Iran’s Academy of Persian Language and Literature were developed.
3. Ethnic identities in Iranian society and legal structure
It seems impossible to imagine a world without ethnicity. Diversity is a feature of human societies and this diversity will lead to cultural diversity and identity. The results of a survey show that only in the 14 countries, there is no significant minority and only four percent of the world's population live in mono-ethnic states. This diversity with a mixture of national and ethnic nationalism has created ethnic the phenomenon of ethnic and minority conflict. It seems that these tensions are global and not limited to a specific area. Basque separatists in Spain discontented German-speaking South Tyrol and Scottish and Welsh nationalist trend in Britain, Quebec separatists in Canada and even racial conflict in the United States are signs of potential ethnic
tensions in democracies. On the other hand mentioned tendencies in Europe and North America, shows that race and ethnic strife is not limited to developing countries.
Ethnicity is a prefix that is widely used in legal literature. At the same time, this term has the affinity with the concept of minorities. The well-known example of this connection is in the Article 27 of the ICCPR, which relates the three concepts of ethnicity, minority, and culture together. This article puts the ethnic minorities in its triple division and connects it with culture. The article states that ethnic minorities” shall not be denied”… “to enjoy their own culture”. The use of the term ethnicity is not limited to the Article 27 of the ICCPR and is used in the domestic law of many countries.
Despite the widespread use of the notions like ethnicity or ethnic group, it should be noted that these terms have new roots in the social sciences and it is hard to find them in the pre 19th- century dictionaries. In general, the word ethnicity is used rarely by social scientist till the beginning of the twentieth centuries. Following the popularity of the theory of the “Melting Pot 24” these terms attracted the attention of the scholars in the different fields of social science. Criticizing this theory by social science researchers led to more attention to the notions of ethnic and ethnicity.
From the terminological perspective, there is no unique or universally accepted definition of ethnic or ethnicity. Despite the widespread use in the scholarly literature, both legal and non-legal texts do not provide a clear definition of these concepts. It seems that there is defined default of these concepts without any definition. In my view, the Western and especially American concept of tribe and ethnicity today has universal application. It seems that the concept of ethnicity has gone through three stages to the modern understanding of it. In the first phase has been associated with religion and been applied to non-Christian groups. In the second phase gradually takes on the meaning of race and racial distinctions. In the third level, the concept of culture is highlighted in
24 The “Melting Pot Theory” likens the American society was to melting pot that dissolve in itself all the ethnic groups who immigrated to USA. For further information refer to the “Beyond the Melting Pot”: Cultural Transmission, Marriage, and the Evolution of Ethnic and Religious Traits”, Alberto Bisin and Thierry Verdier, Quarterly Journal of Economics ,Volume 115, Issue 3 ,pp. 955-988.
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this connection. In these general interpretations, cultural distinctions become a core element of the ethnicity. As a result, ethnicity redefines itself base on what is considered as culture.
Ethnicity is a multifaceted concept and is associated with various aspects. Among the social science scholars, including legal researchers, there is no unique attitude towards these concepts. The decisive criteria of ethnicity and ethnic groups are challenging and controversial. Religion, race, and language, in different perspectives, considered as a measure of ethnicity.
This complexity is more apparent when social science researchers apply these vague criteria in the case of complex the Middle Eastern societies. Certain characteristics that make ethnic distinctions in these countries are very different from each other. For example, in Lebanon, religion and religious diversity, is the main factor in distinguishing ethnic groups. In the countries such as Turkey and Afghanistan, the language is the main cause of ethnic separation. In a country like Iran, language, religion and even dialect play an important role in ethnic separation. Most of the Middle Eastern study's researchers, including Iran, do not define ethnic groups in their works. It seems that researchers have the presumption that the audiences know what is ethnicity or ethnic group.
Although it is difficult to provide a definition of ethnicity, sociologists consider two objective and subjective elements of it. The objective elements could be the common language, religion or common historical background. The subjective element is more associated with the common interest and the sense of belonging to a collective objective .
But despite the frequent use of the words ethnic group and ethnicity, there are many uncertainties about these concepts. In particular, in the legal literature, there is no unique definition of ethnic. Accordingly, sometimes ethnicity is associated with concepts like race, the same common language, common religion or the broad concept of culture.
Martin Bulmer25 from the sociological perspective considers an ethnic group as ‘a collectivity within a larger society having real or putative common ancestry, memories of a shared
25 British sociologist and professor of the London School of Economics, the University of Southampton and current professor at the University of Surrey.
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past, and a cultural focus on one or more symbolic elements which define the group’s identity, such as kinship, religion, language, shared territory, nationality or physical appearance. Members of an ethnic group are conscious of belonging to the group”26. It is possible to categorize Bulmer’s definition in the subjective-based group as he focuses more on the abstract criteria like “common ancestry… memories” or “identity”. Fredrik Barth27 with a formalistic perspective considers the following criteria for the recognition of an ethnic group:
“1. “ Is largely biologically self-perpetuating.
2. Shares fundamental cultural values, realized in overt unity in cultural forms. 3. Makes up a field of communications and interaction.
4. Has a membership which defines itself, and is identified by others, as constituting a category distinguishable from other categories of the same order.28”
In the Barth definition in addition to the subjective and objective criteria, there is a specific attention to the collectivity aspect of the definition.
According to Anthony Smith, an ethnic group is, “a named human population with myths of common ancestry, shared historical memories, one or more elements of a common culture, a link with a homeland and a sense of solidarity.29”
As can be seen, there are different interpretations of ethnicity and ethnic groups. It can be concluded that there is no consensus on the definition of ethnicity or ethnic group.In law, the issue becomes more complicated because generally the definitions of ethnicity or ethnic group have been avoided in legal documents. In the case of our study, although the country's constitution refers to ethnic groups, there is no legal definition of tribe or ethnicity.
26
M. Blumber, ' Race and Ethnicity ', in R. G Burgess (ed.),the Key Variables in the Social Investigation, Routledge & Kegan Paul, 1986,p.54.
27 Norwegian social anthropologist and former professor at Boston University, the University of Oslo, the University of Bergen, Emory University and Harvard University.
28 F. Barth, “Ethnic Groups and Boundaries”, pp.10_11,available on the
http://isites.harvard.edu/fs/docs/icb.topic446176.files/Week_4/Barth_Introduction_Ethnic_Groups_and_Boundaries_.pd f.
29 J.Hutchinson and A. D. Smith, Ethnicity, Oxford: Oxford University Press, 1996, p.6.
30
There are a number of ethnic groups living in Iran. It seems that the largest of which are the Persians .Among the other ethnic groups, the highest in the population are the Azeri Turks, Kurds, Baluchis ,Arabs and the Turkmens. Azeri group is considered as the second largest ethnic after Persian speaking in Iran. Azeri ethnic groups are mainly inhabited in the northwestern part of Iran and could be considered as a territorial ethnic group. As this ethnic group uses the Turkish Azeri as their first language and show the linguistic and cultural difference from the Persian speaking majority in the country could be considered as a distinct ethnic group. The major problem that the Iranian Azeri Turks are facing is concern cultural discrimination. There is this argument that languages other than Persian should be promoted in Iran and their speakers are allowed access to education in their own language30. Kurds are considered as the third largest ethnic and linguistic groups in Iran. The Kurdish ethnic groups are mainly inhabited in the north-west and western parts of Iran. The Kurdish language and culture distinguish them from the rest of the population. Furthermore, the majority of the Kurdish population are Sunni Muslims. Based on the 1979 constitution from the religious point the Sunni Muslims are not minorities and have the equal rights similar to the majority Shia Muslim. There are numerous reports that the Kurdish ethnic suffers from discrimination for being both Sunni Muslims as well as an ethnic group. There are claims that
the Kurds have been denied, both before and after the 1979 revolution, their political, economic and cultural rights, including their right to use their own languageP30F
31
P
. Arabs are the third largest ethnic and linguistic groups of Iran, mainly inhabited in the south-west and southern parts of Iran. Because these groups speak Arabic as the first language and demonstrate cultural differences they could be considered as ethnic or linguistic groups. In contrary to the mentioned theories about modernization in Iran, there is this argument that modernization and industrialization have not been accompanied by the improvement in the distribution of the resources among ethnic communities in Iran and it has increased inequality. There is this argument that political centralization, domination
30
International Federation For Human Rights, the Hidden Side of Iran: Discrimination Against Ethnic and religious Minorities,2010,Avalable on https://www.fidh.org.
31 Ibid.
31
of Persian language and culture, and centralization of early modernization in Iran has led to the expansion of the interethnic inequality.
3.1. Categorizing minorities based on religion: Recognized and unrecognized
minorities in the Iranian Constitution of 1979
It should be noted at the outset that the religious minorities are not the subject of this study. But for two reasons, short explanations are given about this category of the minorities in this part.
The first reason is that the definition and legal status of religious minorities in Iran's legal structure are different from ethnic groups in some cases. Another reason is that despite the difference in regards to some specific groups there is overlap between the two notions of the religious minority and ethnic group.This means that the group may have to be considered either as an ethnic group and religious minorities. An example of this is the case of Sunni Kurds in Iran.Due to a different religion from the majority Shia majority of Kurdish population are considered as an official religious minority that because of the different religion from the majority Shia Muslims population. Also, Kurds have different language and cultural characteristics that fit them in the definition of an ethnic group.There are also groups who have a different religion and at the same time thedifferent linguistic and cultural characteristics that the title of ethnic groups also applies to them. The clearest example of such groups is Armenian minorities of Iran who considered as an official religious minorities base on the article 13 of the constitution of 1979.
It should be considered that despite the difference between the two categories of minorities as religious and ethnic minorities in many cases there is overlap between these two. Religion can be considered as part culture or ethnic identity. The Sunni Islam and the Christianity are part of the cultural identity of Kurdish and Armenian ethnic groups. This fact is also interesting that the constitution of 1979 uses the word minority for some specific religious groups in Iran. The article 13 declares that:
"Iranian Zoroastrians, Jews and Christians are the only recognized religious minorities that
are free to practice their faith based on the scope of the law and in matters of personal affairs and religious education act according to their faith”.
In contrary to the majority interpretation among Iranian scholars who interpreted this article as recognition of freedom of religion in the Iran legal structure this article restricts freedom of religion. The article by introducing the notion of “recognized religious minorities” denies the rights of other groups rather than these three for practicing their religion. Also, it does not consider this right for the Zoroastrians, Jews, and Christians who are not Iranian citizens, as it grants this right to the “Iranian” which means Iranian citizens. The article does not recognize the Sunni Muslims as a minority despite the existence of the huge population in Iran. In regards to the Sunni population of Kurdish ethnic groups, this gap has been one of the main challenges. The Sunni Kurdish groups based on the Article 12 of the constitution have the equal rights as the majority Shia populations. But based on the huge amounts of the reports and evidences they have been denied from practicing their religious rights and have been encountered wide discrimination in this regards.
4. Iranian versus Ethnic identity. Ethnic Identity in Iranian legal structure: The
challenges
The challenge between the Iranian and ethnic identity up to the present time has remained as an unsettled issue32. Despite all the efforts for creating a homogenous nation around the unique religious and linguistic identity by the legal and political means, the ethnic diversity remained as the characteristic of the Iranian society. The article 19 of the constitution of 1979 of the Islamic Republic of Iran has confirmed the existence of the ethnic and tribal diversity. Although the Article 19 confirms the principle of equality of the ethnic groups and tribes, the ethnic and linguistic diversity has turned into a security challenge to the Iranian state as the result of various reasons.
32 A. Saleh, Ethnic Identity and the State in Iran, Palgrave Macmillan, 2013, pp.59-84.
33
Many of the minorities or ethnic groups in Iran like Arabs, Balochs, Kurds and Turkmen have never embraced the homogenized Iranian national identity perpetuated by the ruling elites or integrated fully within Iranian societyP32F
33
P
. The challenges of ethnic groups or minorities in Iran is associated with several problems. First of all, there is no recognition of ethnic minorities in the Iranian constitution of 1979 and as the result, there is no definition of such notions. It should be noticed that the recognition of the ethnic groups in the article 19 of the constitution does not have this meaning that the notion of the ethnic minority is accepted in the constitution. These are two different concepts. The Article 19 is confirmation of ethnic diversity based on relative civic equality. Secondly, the review and analysis of the ethnic and linguistic group’s rights situation in Iran suffers various methodological and substantive shortcomings. For example, from the methodological point, the main focus of critics of the current situation is on the alleged cased of the violation of individuals belonging to the ethnic groups. This method forgets the significant and fundamental questions about the definition and recognition of minorities as the first steps. The third main challenge of ethnic groups is connected to the issue of language and connection of linguistic diversity and policy in the Iranian legal system as a source of tension. Finally the most proper method of accommodating this diversity is one of the major topics in this regards.
One of the important challenges of the Iranian ethnic groups or minorities in regards to the recognition of their rights by the Iranian state is the problem of their recognition as the minority. From the legal perspective, it is important to know which groups are the minority or what is the definition of minority. Without the definition of minority in the legal system, the recognition of minorities remains in the political will of the state and the majority. While there is wide journalistic and political literature referring to the ethnic minorities in Iran in the scholarly writing by the lawyers there is no clear and systematic reference to the ethnic minorities in Iranian law. Some scholars refer to the rights of the ethnic minorities in Iran without addressing the definition of the
33 M. Boroujerdi , ' Contesting Nationalist Constructions of Iranian Identity',
Journal for Critical Studies of the Middle East,Vol. 7,no.12, 1998,p.54.
34
ethnic minorities and the legal justification for considering a group as a minority in the Iranian legal system. As it mentioned in the previous parts the constitution of 1979 does not consider the ethnic or linguistic groups as the minority. Subsequently, the constitution does not provide the definition of ethnic minority. In such ambiguity is hard to talk about the minority rights as the definition and recognition of the minority does not exist in the legal system. As there is no definition of ethnic minority in the Iranian legal system the review of the definition in a comparative way would be beneficial. This review contributes to the understanding of the target of this study in the Iranian legal system.
In general, the situation of ethnic and linguistic groups has been criticized both domestically and internationally in various channels. There are huge amounts of the reports by the non-governmental human rights monitoring bodies in regards to the situation of ethnic minorities in Iran. The alleged violation of human rights, including the minority rights, resulted in appointing of the Special Rapporteur by the UN human rights commission in recent years. Ethnic group and linguistic rights have been one of the main topics of the reports concerning the situation of the human rights in Iran since 2011.But these reports lack the comprehensive view on the situation of ethnic and linguistic groups. Different reasons are resulted to this shortcoming in reporting the ethnic minority rights in the reports of the Special Rapporteur. The main reason is associated to the insufficient knowledge of the Special Rapporteur on the legal structure in the Islamic Republic of Iran. Furthermore, from the first report in 2011 to the last one in 2016, the lack of precise criteria and methodology in the considering situation of the ethnic groups is seen. As the result reviewing the Iranian legal system and its connection to the international human rights law and the role of the domestic system in the implementation of international obligations and standards is necessary.
In reviewing of the ethnic and the minority rights situation in Iran there is one highlighted element which is addressed in almost all the scholarly ligature. This important element is the use of ethnic and regional languages in official situations. Linguistic diversity is one of the major topics of the minority challenge in Iran. The official monolingual approach which is recognized by the
constitution of 1979 has been one of the sources of challenge up to the present time34. The policy of one Iranian nation and Persian official language in the constitution is considered as a violation of the principle of equality. There are debates that whether this structure in the constitution is complying with both the international obligations and the domestic principle of equality. This is the reason why that the reviewing and considering the issue of language and linguistic policy in the Iranian legal system is necessary.
The final question of the challenge of the ethnic groups is connected to the methods of accommodating ethnic diversity. The current legal and political structure in Iran is a unitary system. The ethnic and linguistic diversity is recognized in the Iranian Constitution of 1979 but the structure of the state is central or semi-central unitary structure. The suitability such structure for accommodating ethnic diversity has been challenged by the Iranian and international scholars and activists. One of the proposed solutions for accommodating ethnic diversity is the federal structure. But this transplantation such structurer in the developing unitary state would be accompanied with lots of complexity. Furthermore, there are lots of concern and criticism in regards to the functionality of federal structure for protecting minorities. This is the reason why such issues will be discussed in the last chapter of this thesis.
34 F. Safizadeh, 'The Dynamics of Ethnic Identity in Iranian Azerbaijan', The Journal of Pedagogy, Pluralism and
Practice,Vol.5,no.1,2013.Abvalable on http://www.lesley.edu.
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