26 September 2008: Minority rightsMaria Lundberg, NCHR1 JUR 5710 Institutions and Procedures Minority Rights

26 September 2008: Minority rights

Maria Lundberg , NCHR 1

JUR 5710 JUR 5710 Institutions and Institutions and

ProceduresProcedures

Minority RightsMinority Rights



International law and the International law and the protection of minority protection of minority

rightsrights• Part of Part of contemporary international contemporary international

human rights lawhuman rights law..• Based on the fundamental premise of Based on the fundamental premise of

human rights law: that human rights law: that all persons are all persons are equal in dignity and rightsequal in dignity and rights, Article 1 of , Article 1 of the Universal Declaration of Human the Universal Declaration of Human Rights. Rights.

• Aim: making it possible for all individuals Aim: making it possible for all individuals which have a different culture or ethnicity, which have a different culture or ethnicity, religion or language from the majority in a religion or language from the majority in a State to State to enjoy their own identity, while enjoy their own identity, while enjoying all rights in equalityenjoying all rights in equality



The core elements of The core elements of protection of identityprotection of identity

• Include the right for members of minorities to Include the right for members of minorities to – a) organise themselves as a group, a) organise themselves as a group, – b) to use their own language, to practice their own b) to use their own language, to practice their own

religion or beliefs and to be able to preserve, to religion or beliefs and to be able to preserve, to reproduce and to develop their own culture, and reproduce and to develop their own culture, and therefore therefore

– c) to control or have a significant impact on the c) to control or have a significant impact on the content of the education of their new generations, content of the education of their new generations, and and

– d) to be able to effectively influence political d) to be able to effectively influence political decisions affecting themselvesdecisions affecting themselves

– e) to participate in and benefit from development e) to participate in and benefit from development



Four justifications of Four justifications of minority protection in minority protection in

international lawinternational law• Basis for the legal protection of the Basis for the legal protection of the

rights of persons belonging to ethnic, rights of persons belonging to ethnic, national, religious and linguistic national, religious and linguistic minoritiesminorities

1.1. international human rights lawinternational human rights law– and the right to development and the right to development

• a human rights based approach to developmenta human rights based approach to development• sustainable human developmentsustainable human development

2.2. international criminal lawinternational criminal law3.3. maintenance of peace and stability maintenance of peace and stability 4.4. the protection of world cultural heritage.the protection of world cultural heritage.



Four Parts of Minority Four Parts of Minority RightsRights

1.1. Protection of physical existenceProtection of physical existence

2.2. Protection and promotion of Protection and promotion of cultural or social identitycultural or social identity

3.3. Ensuring non-discrimination and Ensuring non-discrimination and equalityequality

4.4. Ensuring effective participation in Ensuring effective participation in public lifepublic life



International International instruments (1)instruments (1)

• Universal instruments addressing Universal instruments addressing minority/indigenous rights:minority/indigenous rights:– Article 27 of the International Covenant on Civil and Article 27 of the International Covenant on Civil and

Political Rights, ICCPR (1966)Political Rights, ICCPR (1966)– Article 30 of the Convention on the Rights of the Child, Article 30 of the Convention on the Rights of the Child,

CRC (1986)CRC (1986)– The UN Declaration on the Rights of Persons Belonging The UN Declaration on the Rights of Persons Belonging

to National or Ethnic, Religious and Linguistic Minorities, to National or Ethnic, Religious and Linguistic Minorities, Minority Declaration (1992)Minority Declaration (1992)

– UNESCO Convention Against Discrimination in UNESCO Convention Against Discrimination in Education (1960)Education (1960)

– ILO Convention 169 concerning Indigenous and Tribal ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989) Peoples in Independent Countries (1989)

– The UN Declaration on the Rights of Indigenous Peoples The UN Declaration on the Rights of Indigenous Peoples (2007) (2007)



International International instruments (2)instruments (2)

• Persons belonging to minorities shall Persons belonging to minorities shall enjoy all human rights in equality enjoy all human rights in equality and dignityand dignity– Article 1 of the Universal Declaration of Article 1 of the Universal Declaration of

Human Rights (UDHR)Human Rights (UDHR)

• The rule of non-discriminationThe rule of non-discrimination– Direct and indirect discriminationDirect and indirect discrimination– Positive action and special measures Positive action and special measures



Regional instruments: Regional instruments: EuropeEurope

• Council of EuropeCouncil of Europe::• European Charter for Regional and European Charter for Regional and

Minority Languages (1992)Minority Languages (1992)• Framework Convention for the Framework Convention for the

Protection of National Minorities Protection of National Minorities (1995)(1995)

• Organisation for Security and Organisation for Security and Cooperation in Europe, OSCECooperation in Europe, OSCE::

• Copenhagen Document of the Human Copenhagen Document of the Human Dimension CSCE (1990) and otherDimension CSCE (1990) and other



International International Supervision (1)Supervision (1)

• UN Charter based organsUN Charter based organs– General AssemblyGeneral Assembly

• Human Rights CouncilHuman Rights Council– Special proceduresSpecial procedures– Independent Expert on Minority Issues, Gay Independent Expert on Minority Issues, Gay

MacDougallMacDougall

– Security CouncilSecurity Council– International Court of JusticeInternational Court of Justice

State representatives, experts and judges State representatives, experts and judges consider human rights performance consider human rights performance



International International Supervision (2)Supervision (2)

• International treaties provides for:International treaties provides for:• Treaty bodies – expertsTreaty bodies – experts• Advisory bodies – expertsAdvisory bodies – experts• Political bodies – State representativesPolitical bodies – State representatives• International Courts – judgesInternational Courts – judges

In general, experts consider state In general, experts consider state performance in accordance with a performance in accordance with a treatytreaty



Historical basisHistorical basis

• From 16th and 17th century in From 16th and 17th century in Europe: part of different peace Europe: part of different peace settlements.settlements.

• The League of Nations - minority The League of Nations - minority protection became the compensation protection became the compensation for those groups which were not for those groups which were not granted national self-determination granted national self-determination and independent statehoodand independent statehood



Historical basis (2)Historical basis (2)

• The United Nations (UN):The United Nations (UN):• Non-discrimination in the UN CharterNon-discrimination in the UN Charter• Non-discrimination in the UDHRNon-discrimination in the UDHR

– GA Res. 217/C (III) ”Fate of Minorities”GA Res. 217/C (III) ”Fate of Minorities”

• Article 27 of the ICCPR provides Article 27 of the ICCPR provides In those States in which ethnic, religious or In those States in which ethnic, religious or linguistic minorities exist, persons belonging linguistic minorities exist, persons belonging to such minorities to such minorities shall not be denied the shall not be denied the right, in community with other members of right, in community with other members of their group, to enjoy their own culture, to their group, to enjoy their own culture, to profess and practice their own religion, or to profess and practice their own religion, or to use their use their ownown language language



Definition of minorities Definition of minorities (1)(1)

• Never any agreement among statesNever any agreement among states• Special rapporteur Caportorti’s definition in Special rapporteur Caportorti’s definition in

application of Article 27 ICCPR (1979):application of Article 27 ICCPR (1979):• A group numerically inferior to the rest of the A group numerically inferior to the rest of the

population of a State, in a non-dominant population of a State, in a non-dominant position, whose members –being nationals of position, whose members –being nationals of the State – posses ethnic, religious or the State – posses ethnic, religious or linguistic characteristics differing from the linguistic characteristics differing from the rest of of the population and show, if only rest of of the population and show, if only implicitly, a sense of solidarity directed implicitly, a sense of solidarity directed towards preserving their culture, traditions, towards preserving their culture, traditions, religion or language.religion or language.



Definition of minorities Definition of minorities (2)(2)

• Developments:Developments:– Non-citizensNon-citizens– Indigenous peoplesIndigenous peoples– ””New minorities”New minorities”– Subjective criteria emphasizedSubjective criteria emphasized– Multiple identitiesMultiple identities

– One suggestion: An association of persons One suggestion: An association of persons seeking a specified end which differs from that seeking a specified end which differs from that sought by the numerical majority (John Packer, sought by the numerical majority (John Packer, 1999)1999)



Non-discrimination (1)Non-discrimination (1)

• the state shall ensure the rights the state shall ensure the rights contained in the relevant contained in the relevant conventions to everyone (all persons conventions to everyone (all persons on the territory/jurisdiction) without on the territory/jurisdiction) without discrimination of any kind, based on discrimination of any kind, based on grounds such as race, colour, sex, grounds such as race, colour, sex, language, national, ethnic or social language, national, ethnic or social origin. origin.



Non-discrimination (2)Non-discrimination (2)• European Court of Human Rights have developed European Court of Human Rights have developed

criteria for criteria for an absence of objective and an absence of objective and reasonable justification for a distinction in reasonable justification for a distinction in treatment in equal situationstreatment in equal situations : :

– the justification must be assessed in relation to the aim the justification must be assessed in relation to the aim and the effects of the measure under consideration, with and the effects of the measure under consideration, with due regard being given to the principles which normally due regard being given to the principles which normally prevails in democratic societies;prevails in democratic societies;

– the aim must be a legitimate one;the aim must be a legitimate one;– there must be a reasonable relationship of proportionality there must be a reasonable relationship of proportionality

between the means employed and the aim sought to be between the means employed and the aim sought to be realised. (in Case realised. (in Case relating to certain Aspects of the Laws relating to certain Aspects of the Laws on the Use of Languages in Education in Belgiumon the Use of Languages in Education in Belgium, Ser. A, , Ser. A, No. 6, Vol. XVI, Judgment of 23 July 1968, p. 34)No. 6, Vol. XVI, Judgment of 23 July 1968, p. 34)



Positive measuresPositive measures

• The principles of equality and non-The principles of equality and non-discrimination require states to discrimination require states to adopt positive measures, sometimes adopt positive measures, sometimes called affirmative action, in order to called affirmative action, in order to diminish or eliminate conditions diminish or eliminate conditions which cause or help to perpetuate which cause or help to perpetuate prohibited discrimination (see CCPR prohibited discrimination (see CCPR General Comment 18. para. 10).General Comment 18. para. 10).



Convention on the Convention on the Elimination of All forms of Elimination of All forms of Racial Discrimination,1965Racial Discrimination,1965

• Article 2.2Article 2.2 : : States shall, when States shall, when circumstances so warrant, take in the circumstances so warrant, take in the social, economic, cultural and other fields, social, economic, cultural and other fields, special and concrete measures to special and concrete measures to ensure the adequate development and ensure the adequate development and protection of certain racial groups or protection of certain racial groups or individuals belonging to them,individuals belonging to them, for the for the purpose of guaranteeing them the purpose of guaranteeing them the full and full and equal enjoyment of human rights and equal enjoyment of human rights and fundamental freedomsfundamental freedoms..

• Cf. Convention on the Elimination of All Forms of Discrimination Against Cf. Convention on the Elimination of All Forms of Discrimination Against

Women,1979, Art. 4Women,1979, Art. 4..



Obligation to Obligation to DifferentiateDifferentiate

• In the practice of the European Court of Human In the practice of the European Court of Human Rights: Rights: differences in otherwise similar differences in otherwise similar situationssituations are said to justify differences in are said to justify differences in treatment and treatment and significant differencessignificant differences may even may even requirerequire appropriate accommodation appropriate accommodation

• Thlimmenos v. Greece (Application no. Thlimmenos v. Greece (Application no. 34369/97), Judgment of 6 April 2000, para. 44: 34369/97), Judgment of 6 April 2000, para. 44:

• The right not to be discriminated against in the The right not to be discriminated against in the enjoyment of the rights guaranteed under the enjoyment of the rights guaranteed under the Convention is also violated when States without Convention is also violated when States without objective and reasonable justification objective and reasonable justification fail to fail to treat differentlytreat differently persons whose situation is persons whose situation is significantlysignificantly different different – Cf. Protocol 12 to the ECHRCf. Protocol 12 to the ECHR



Equality for persons Equality for persons belonging to minoritiesbelonging to minorities

• A notion of “full and effective “ A notion of “full and effective “ equality should include measures toequality should include measures to::– Prevent discrimination by the State Prevent discrimination by the State

or private partiesor private parties– Remedy conditions which cause or Remedy conditions which cause or

help to perpetuate discriminationhelp to perpetuate discrimination– Promote and protect the identity Promote and protect the identity

and development of different and development of different groups, including minority groupsgroups, including minority groups



UNESCO Convention UNESCO Convention against Discrimination in against Discrimination in

EducationEducation (1960) (1960)• Earliest containing reference to minority Earliest containing reference to minority

rights:rights:• in this context of private schools that the in this context of private schools that the

Convention affirms that States shall Convention affirms that States shall recognise:recognise:

• the right of members of national minorities the right of members of national minorities to carry on their own educational activities, to carry on their own educational activities, including the maintenance of schools and, including the maintenance of schools and, depending on the educational policy of each depending on the educational policy of each State, the use or the teaching of their own State, the use or the teaching of their own languagelanguage



UN Minority Declaration of UN Minority Declaration of 1992,1992,

• UN Declaration on the Rights of Persons Belonging to UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities National or Ethnic, Religious and Linguistic Minorities contributes to the development of standards on minority contributes to the development of standards on minority rights byrights by

• stating the rights of persons belonging to minorities in a stating the rights of persons belonging to minorities in a positive language, (compare with Article 27 ICCPR) positive language, (compare with Article 27 ICCPR)

• stating that States have the obligation to adopt measures to stating that States have the obligation to adopt measures to ensure the enjoyment of minority rights (Article 4), ensure the enjoyment of minority rights (Article 4),

• stating that States have the obligation to protect and promote stating that States have the obligation to protect and promote the existence and identity of minorities as groups (Article 1), the existence and identity of minorities as groups (Article 1),

• stating the right of effective participation (Article 2)stating the right of effective participation (Article 2)• stating that the rights can be exercised either individually or stating that the rights can be exercised either individually or

collectively (Article 3), and collectively (Article 3), and • elaborating that the legitimate interests of minorities shall be elaborating that the legitimate interests of minorities shall be

taken into account in State policy and programmes (Article 5).taken into account in State policy and programmes (Article 5).



UN Declaration on the UN Declaration on the Rights of Indigenous Rights of Indigenous

Peoples (2007)Peoples (2007)• Self-determination Self-determination

– Autonomy as internal self-determinationAutonomy as internal self-determination

• Effective ParticipationEffective Participation• Decision-making: Free, prior and Decision-making: Free, prior and

informed consentinformed consent• Land rightsLand rights• Restitution or Compensation for loss Restitution or Compensation for loss

of landof land



Charter for Regional or Charter for Regional or Minority Languages of 1992Minority Languages of 1992• Recognition of the importance of Recognition of the importance of

regional and minority languages for regional and minority languages for the common cultural heritage in the common cultural heritage in Europe. Europe.

• The Convention provides a system of The Convention provides a system of alternative undertakings to protect alternative undertakings to protect regional or minority languages.regional or minority languages.



Framework Convention for Framework Convention for the Protection of National the Protection of National

MinoritiesMinorities• Council of EuropeCouncil of Europe• First legally binding instrument specifically for First legally binding instrument specifically for

minority protectionminority protection• Rights exercised individually as well as Rights exercised individually as well as

collectivelycollectively• Aim is threefold:Aim is threefold:

– 1. enhancing respect for the ethnic, cultural, linguistic 1. enhancing respect for the ethnic, cultural, linguistic and religious identity of persons belonging to national and religious identity of persons belonging to national minoritiesminorities

– 2. creating appropriate conditions enabling persons 2. creating appropriate conditions enabling persons belonging to national minorities to express, preserve belonging to national minorities to express, preserve and develop their identity, andand develop their identity, and

– 3. creating a climate of tolerance and dialogue.3. creating a climate of tolerance and dialogue.




MinoritiesMinorities• Rights which are part of general human Rights which are part of general human

rights law, including the right to freedom of rights law, including the right to freedom of expression, association, assembly and expression, association, assembly and freedom of thought conscience and religion.freedom of thought conscience and religion.

• Measures to prevent discriminationMeasures to prevent discrimination• Measures to preserve and promote Measures to preserve and promote

conditions for identityconditions for identity• Measures to promote intercultural dialogueMeasures to promote intercultural dialogue• International measures of co-operation in International measures of co-operation in

these fieldsthese fields




MinoritiesMinorities• The measures to preserve and promote conditions for the The measures to preserve and promote conditions for the

enjoyment of the minorities’ own identity are of different enjoyment of the minorities’ own identity are of different kinds. They can be organised according to the fields to kinds. They can be organised according to the fields to which they apply:which they apply:

• Measures for the protection of minority groupsMeasures for the protection of minority groups• Measures for the effective participation in public life by Measures for the effective participation in public life by

members of minoritiesmembers of minorities• Measures for the use of minority languagesMeasures for the use of minority languages• Measures for education of members of minoritiesMeasures for education of members of minorities• Measures for the access and use of media by members of Measures for the access and use of media by members of

minoritiesminorities• Measures for the practice religion by members of Measures for the practice religion by members of

minoritiesminorities• Measures for the enjoyment of culture by the members of Measures for the enjoyment of culture by the members of

minoritiesminorities



The right to self-The right to self-determination determination

• Collective or group aspects of minority Collective or group aspects of minority rights have been strengthened by linking rights have been strengthened by linking interpretation of Article 27 (and other interpretation of Article 27 (and other rights) to Article 1 of the ICCPR: rights) to Article 1 of the ICCPR:

• This right is of “particular importance This right is of “particular importance because its realization is an essential because its realization is an essential condition for the effective guarantee and condition for the effective guarantee and observance of individual human rights and observance of individual human rights and for the promotion and strengthening of for the promotion and strengthening of those rights”, Gen. Comment No.12 those rights”, Gen. Comment No.12 (1984), para.1(1984), para.1



The right to self-The right to self-determinationdetermination

• The right of “all peoples” to self-The right of “all peoples” to self-determination has determination has

– (1) a political dimension “freely (1) a political dimension “freely determine their political status” and determine their political status” and

– (2) a resource dimension, pursue their (2) a resource dimension, pursue their “economic, social and cultural “economic, social and cultural development”.development”.

– Internal external aspectsInternal external aspects



The right to self-The right to self-determinationdetermination

• UN Declaration on Indigenous RightsUN Declaration on Indigenous Rights• Art. 3: Art. 3: Indigenous peoples have the Indigenous peoples have the

right to self-determination. right to self-determination. • Art. 4: Indigenous peoples, in exercising Art. 4: Indigenous peoples, in exercising

their right to self-determination, have their right to self-determination, have the right to autonomy or self-the right to autonomy or self-government in matters relating to their government in matters relating to their internal and local affairs, as well as internal and local affairs, as well as ways and means for financing their ways and means for financing their autonomous functions.autonomous functions.



ILO Convention169 ILO Convention169 concerning Indigenous and concerning Indigenous and

Tribal PeoplesTribal Peoples• Article 1 includes a definitionArticle 1 includes a definition• Subjective elementSubjective element• Article 1, para. 3 stipulates that “the Article 1, para. 3 stipulates that “the

use of the term “peoples” in this use of the term “peoples” in this Convention shall not be construed Convention shall not be construed as having implications as regards to as having implications as regards to the rights which may attach to the the rights which may attach to the term under international law.” term under international law.”



ILO Convention169 …ILO Convention169 …

• Rights to participate in decision-Rights to participate in decision-making is reflected in Articles 6 and 7 making is reflected in Articles 6 and 7 includingincluding

““their representative institutions”their representative institutions”

andand

setting the priorities for the setting the priorities for the determination of their own future determination of their own future

• Land rights of indigenous peoples are Land rights of indigenous peoples are defined in Articles 13-19 defined in Articles 13-19

Documents

26 September 2008: Minority rightsMaria Lundberg, NCHR1 JUR 5710 Institutions and Procedures Minority Rights