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November 3, 2004

By Steve Gligorov, J.D. and Metodija A. Koloski

Generally, minorities in the United States often take pride with the fact they are all equal under the law, regardless of their historical or ethnic background.  This means that discrimination in the United States, based on race or ethnicity, by the government is generally illegal. Acts of the government that involve factors such as race or ethnicity are generally inherently suspect. These acts usually face what is called “strict scrutiny” in the courts, and these ethnic based divisions are almost always deemed unconstitutional in discrimination cases.

This precedent is now challenged. Under pressure of the European Union, the OSCE, and NATO, the United States formed a partnership, which helped facilitate the Ohrid Framework Agreement in 2001. Critics now argue that despite good intentions underlying the Ohrid Framework Agreement, it neglects basic tenets of American law, history, and culture. 

Weighed against the background of American Constitutional Law, the Framework Agreement uses racial or ethnic classifications, which are presumptively invalid and would not likely be upheld in courts of the United States. Yet, United States Ambassador to Macedonia, Lawrence Butler, asserts that “we and our experts have look[ed] at it hard and it meets the minimum technical criteria for successful municipalities, it increases the ethnic diversity of municipalities, not decreases but increases it.” Legal experts in the United States disagree, however.

Legal scholars say the Ohrid Framework Agreement is inherently flawed despite its “Non-Discrimination and Equitable Representation” section under part 4 of the document. One major flaw comes in the form of special governmental privileges granted to minorities making up “at least 20 percent of the population.” This objective discriminatory criterion deems the document not ostensibly facially neutral. Ironically, the Framework asserts that it “will promote the peaceful and harmonious development of civil society while respecting the ethnic identity and the interests of all Macedonian citizens.”  There are thousands of Macedonian citizens of various ethnic backgrounds who make up less than 20 percent of the population, but the Ohrid Framework unequivocally discriminates against these citizens.

Under the Framework’s principle dubbed “positive discrimination,” ethnic groups composing 19 percent of the population, or less, are not entitled to the special privileges such as official national language status or selective enrollment by state universities. According to the 2000 U.S. Census, approximately 30 percent of the U.S. population currently belongs to a racial or ethnic minority group. Under the Ohrid Framework Agreement only minorities that make up 20 percent of the population, or more, in certain areas are entitled to governmentally sponsored privileges, but the remaining minorities are effectively marginalized by exclusion.

The maxim that “all are equal under law” is something Americans take pride in.  Under no circumstance should this principle be eroded, says New York minority rights attorney Dmitry Merrit. Applying the Ohrid Framework Agreement in the United States would put many minority groups out in the cold. This includes Blacks, Hispanics, Asians, and especially, Multiracial Americans. According to the 2000 U.S. Census, approximately 6.8 million Americans -- 2.4 percent of the total U.S. population -- self-identify with two or more racial categories. The highest concentrations of Multiracial Americans live in Alaska, California, Hawaii, and Washington.

Public pressure against fulfillment of the Framework Agreement surfaced in the form of large public protests against race-based decentralization. The Constitutional requirement for Referendum put democratic power back in the hands of the people when over 150,000 signed a petition against the Framework. On November 07, 2004 the polls may determine, at least in part, the future of the marred Framework Agreement. Many argue the Framework legislates in a vacuum because it ignores documented regional race-based discrimination against ethnic Macedonians residing in Greece, Bulgaria, and Albania.

The Ohrid Framework Agreement requires revision, says Merrit. First, the Framework forces Multiracial Macedonians, or other minorities categorized under the 19 percentile or less category, to identify with a majority group or another super minority group in hope of qualifying for special governmental privileges.  Second, by demarcating governmental privileges under an arbitrary twenty percentile ethnic pretext, the Ohrid Framework Agreement polarizes people based on their ethnic identifications. Ultimately, polarizing and marginalizing people based on their ethnic identity does not comport with the intent of the Framework Agreement, which is to respect “the ethnic identity and the interests of all Macedonian citizens,” says Merrit.  The Supreme Court of the United States has repeatedly held that “a racial classification, regardless of purported motivation, is presumptively invalid.”

Many minority rights groups, such as the Macedonian Association of Professionals Students of Washington D.C. are calling for a serious review of the Ohrid Framework Agreement.  Arizona lawyer, Michael Rollins, says “it is better to do something carefully now, and get it right at the beginning, instead of later trying to repair dramatic societal effects of governmental discrimination.” Ultimately, Ambassador Lawrence Butler’s statements, encouraging ratification of an un-revised Ohrid Framework Agreement, appear to be inconsistent with American norms, values, and laws. 

Groups arguing in favor of a revised Ohrid Framework Agreement demand that the new edition be more representative of American norms and Equal Protection laws despite pressures from the European Union or the OSCE. This issue calls into question whether favoring certain ethnic minorities, while blatantly discriminating against others, can increase ethnic diversity in a multi-ethnic province.  Critics say this policy merely propounds ethnic tensions and fosters resentment with minorities who remain the targets of a newfound form of government sponsored discrimination.