1. States Parties condemn racial
discrimination and undertake to pursue by all appropriate means and without
delay a policy of eliminating racial discrimination in all its forms and
promoting understanding among all races, and, to this end:
(a) Each State
Party undertakes to engage in no act or practice of racial discrimination
against persons, groups of persons or institutions and to en sure that all
public authorities and public institutions, national and local, shall act in
conformity with this obligation;
(b) Each State Party undertakes not to
sponsor, defend or support racial discrimination by any persons or
organizations;
(c) Each State Party shall take effective measures to review
governmental, national and local policies, and to amend, rescind or nullify any
laws and regulations which have the effect of creating or perpetuating racial
discrimination wherever it exists;
(d) Each State Party shall prohibit and
bring to an end, by all appropriate means, including legislation as required by
circumstances, racial discrimination by any persons, group or organization;
(e) Each State Party undertakes to encourage, where appropriate,
integrationist multiracial organizations and movements and other means of
eliminating barriers between races, and to discourage anything which tends to
strengthen racial division.
2. States Parties shall, when the circumstances
so warrant, take, in the social, economic, cultural and other fields, special
and concrete measures to ensure the adequate development and protection of
certain racial groups or individuals belonging to them, for the purpose of
guaranteeing them the full and equal enjoyment of human rights and fundamental
freedoms. These measures shall in no case en tail as a con sequence the
maintenance of unequal or separate rights for different racial groups after the
objectives for which they were taken have been achieved.
Article 4 states:
States Parties
condemn all propaganda and all organizations which are based on ideas or
theories of superiority of one race or group of persons of one colour or ethnic
origin, or which attempt to justify or promote racial hatred and discrimination
in any form, and undertake to adopt immediate and positive measures designed to
eradicate all incitement to, or acts of, such discrimination and, to this end,
with due regard to the principles embodied in the Universal Declaration of Human
Rights and the rights expressly set forth in article 5 of this Convention, inter
alia:
(a) Shall declare an offence punishable by law all dissemination of
ideas based on racial superiority or hatred, incitement to racial
discrimination, as well as all acts of violence or incitement to such acts
against any race or group of persons of another colour or ethnic origin, and
also the provision of any assistance to racist activities, including the
financing thereof;
(b) Shall declare illegal and prohibit organizations, and
also organized and all other propaganda activities, which promote and incite
racial discrimination, and shall recognize participation in such organizations
or activities as an offence punishable by law;
(c) Shall not permit public
authorities or public institutions, national or local, to promote or incite
racial discrimination.
Additional rights which refer to minorities include:
International Covenant on Economic, Social and Cultural Rights article 13 provides:
1. The States Parties to the present
Covenant recognize the right of everyone to education. They agree that education
shall be directed to the full development of the human personality and the sense
of its dignity, and shall strengthen the respect for human rights and
fundamental freedoms. They further agree that education shall enable all persons
to participate effectively in a free society, promote understanding, tolerance
and friendship among all nations and all racial, ethnic or religious groups, and
further the activities of the United Nations for the maintenance of peace.
2. The States Parties to the present Covenant recognize that, with a view to
achieving the full realization of this right:
(a) Primary education shall be
compulsory and available free to all;
(b) Secondary education in its
different forms, including technical and vocational secondary education, shall
be made generally available and accessible to all by every appropriate means,
and in particular by the progressive introduction of free education;
(c)
Higher education shall be made equally accessible to all, on the basis of
capacity, by every appropriate means, and in particular by the progressive
introduction of free education;
(d) Fundamental education shall be
encouraged or intensified as far as possible for those persons who have not
received or completed the whole period of their primary education;
(e) The
development of a system of schools at all levels shall be actively pursued, an
adequate fellowship system shall be established, and the material conditions of
teaching staff shall be continuously improved.
3. The States Parties to the
present Covenant undertake to have respect for the liberty of parents and, when
applicable, legal guardians to choose for their children schools, other than
those established by the public authorities, which conform to such minimum
educational standards as may be laid down or approved by the State and to ensure
the religious and moral education of their children in conformity with their own
convictions.
4. No part of this article shall be construed so as to
interfere with the liberty of individuals and bodies to establish and direct
educational institutions, subject always to the observance of the principles set
forth in paragraph I of this article and to the requirement that the education
given in such institutions shall conform to such minimum standards as may be
laid down by the State.
The
Committee on Economic, Social and Cultural Rights has issued a general comment
on the interpretation of article 13
The Convention on the Rights of the Child Article 30, the UNESCO Convention against Discrimination in Education Article 5 and the UNESCO Declaration on Race and Racial Prejudice Article 5 all refer indirectly to NMs. Important although soft law is the United Nations Declaration on the Rights of Persons Belonging to National or ... Ethnic, Religious and Linguistic Minorities.
It is at the OSCE level that most progress has been achieved so far, various documents are of interest:
Document of the
Copenhagen Meeting of the Conference on the Human Dimension of the CSCE
Report
of the CSCE meeting of experts on national minorities Geneva, 1991
The
Hague Recommendations regarding the Education Rights of National
Minorities
The
Oslo Recommendations regarding the Linguistic Rights of National
Minorities
The
Lund Recommendations on the Effective Participation of National Minorities in
Public Life 1999
The Council of Europe has also been active in the field:
European
Charter for Regional or Minority Languages ETS no. 148, 1992
Rights of national minorities
Recommendation Doc. 8943 23 January 2001The Framework
Convention for the Protection of National Minorities ETS no. 157, 1995
is
the first legally binding multilateral instrument devoted to the protection of
minorities.
The evaluation
of the adequacy of the implementation of this Framework Convention by the
Parties is carried out by the Committee of Ministers, assisted by the Advisory
Committee which examines the State reports, which will be made public by the
Council of Europe upon receipt from the State Party, and prepares an opinion on
the measures taken by that Party. The
opinions of the Advisory Committee can be found at
Within the European Union some
texts are relevant as the Arfé Resolution on a Community charter of regional
languages and cultures and on a Charter of rights of ethnic minorities 16
October 1981
the
Kuijpers Resolution on the languages and cultures of regional and ethnic
minorities in the European Community 30 October 1987
and the Killilea Resolution on
linguistic and cultural minorities in the European Community
9 February 1994
Definition (PDF
Doc.)
No definition of minorities is contained in any of the international instruments dealing with the subject. Both in the United Nations system in general and in the Working Group on Minorities in particular, attempts at definition have constantly run up against the dynamic reality of social events, moreover the term "minorities" designates a very diverse and motley range of human groups.
According to the working definition drafted in the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, (now called the Sub-Commission on the Promotion and Protection of Human Rights), a minority is primarily a "non-dominant" group in society and, secondly, one that possesses some distinguishing feature of an "ethnic, linguistic or religious" nature or pertaining to national origin, which differentiates it in one or several ways from the rest of the population, that is assumed to be in the majority or dominant. Thus, a minority is a demographically smaller segment of the population which has some distinctive feature. Traditionally it has been accepted that the existence of a minority depends on a combination of one or more objective elements with one subjective element, namely the members' awareness of belonging to a minority. Thus the existence of a minority is not "static", since it always depends on the will of its members, on their will to continue to form a group distinct from the majority, and on their capacity to recreate their own identity.
Collective Vs. Individual
Rights: In most international instruments this recognition of communal
rights was balanced by a significant protection for individuals. The 1990 OSCE
Copenhagen document refers to "persons belonging to national minorities" when
addressing their rights and further states that "to belong to a NM is a matter
of a person's individual choice and no disadvantage may arise from the exercise
of such choice". The Framework Convention refers to "every person belonging to a
national minority". In Article 3 it clearly states that "persons belonging to
national minorities may exercise the rights and enjoy the freedoms flowing from
the principles enshrined in the present framework Convention individually as
well as in community with others". The UN Declaration on the Rights of Persons
Belonging to National or Ethnic or Religious Minorities (General Assembly
Resolution 47/135, annex, 47 U.N. GAOR Supp. (No. 49) at 210, U.N. Doc. A/47/49
(1993)) also refers to "persons belonging to…" and in its article 3(1) states
that "Persons belonging to minorities may exercise their rights, including those
set forth in the present Declaration, individually as well as in community with
other members of their group, without any discrimination".
International instruments protect the rights of the members of minorities rather than the rights of the minority as a whole. Art. 27 of the ICCPR thus provides that "persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their culture (…)." The Human Rights Committee General Comment No. 18 , 3.1 and 6.2 makes clear that this article "relates to rights conferred on individuals as such" and protects "individual rights." Thus any violation of art. 27 can only be claimed under the 1st optional protocol to the ICCPR i.e. by way of Individual complaint. Lubricon Lake Band - HRC held that a collective complaint is inadmissible. Similarly, as said above, the European Framework Convention for the Protection of National Minorities only grants rights to "persons belonging to national minorities."
Domestic laws quota systems expressed in percentages of population: in some domestic legislation, the enjoyment of some of the rights is conditioned to a quota system expressed in percentages of population, (especially when it comes to the use of the minority language or education). It is true that the Framework Convention also conditions the enjoyment of certain aspects of the rights by providing that: " in areas inhabited by persons belonging to national minorities traditionally or in substantial numbers…" (see articles 10 on minority language; 14 on minority language and education), but the condition does not refer only to the number of inhabitants but also to the fact that a NM was traditionally installed in an area. The only exception is contained in article 11, in relation to display of traditional local names, street names and other topographical indications where it only requires "substantial numbers" inhabiting the area.
Requirement of citizenship:(see Doc.) Restricting the protection of minority rights to citizens is contrary to the prevailing interpretation of the concept of minorities, which hold s that citizenship is not a requirement to belonging to a minority (See the Human Rights Committee General Comment No. 18 (Article 27) (1994), 5.1 and 5.2).
Discrimination and affirmative action: (see Doc.) provisions prohibiting discrimination and allowing affirmative action are central to the protection of minorities and should be included in domestic laws.
Further, discrimination has been prohibited in a number of international instruments that deal with most, if not all, situations in which minority groups and their individual members may be denied equality of treatment. Discrimination is prohibited on the grounds of, inter alia, race, language, religion, national or social origin, and birth or other status. Important safeguards from which individual members of minorities stand to benefit include recognition as a person before the law, equality before the courts, equality before the law, and equal protection of the law, in addition to the important rights of freedom of religion, expression and association.
Non-discrimination provisions are contained in the United Nations Charter of 1945 (arts. 1 and 55), the Universal Declaration of Human Rights of 1948 (art. 2) and the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights of 1966 (art. 2). Such provisions also appear in a number of specialized international instruments, including: ILO Convention concerning Discrimination in Respect of Employment and Occupation No. 111 of 1958 (art. 1); International Convention on the Elimination of All Forms of Racial Discrimination of 1965 (art. 1); UNESCO Convention against Discrimination in Education of 1960 (art. 1); UNESCO Declaration on Race and Racial Prejudice of 1978 (arts. 1, 2 and 3); Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief of 1981 (art. 2); and the Convention on the Rights of the Child of 1989 (art. 2).
Non-discrimination clauses are also included in all of the basic regional human rights documents, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Social Charter and the Framework Convention on National Minorities (Council of Europe), the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the OSCE (Organization for Security and Cooperation in Europe); the American Convention on Human Rights (Organization of American States); and the African Charter on Human and Peoples' Rights (Organization of African Unity).
Positive versus negative
rights: international instruments granting rights to individuals belonging
to minorities have usually cautious formulations setting out positive rights.
Generally the Rights that are expressed in negative terms in international
instruments.
For example art. 9 of the European Framework Convention provides that "the parties shall ensure, within the framework of their legal systems, that persons belonging to a national minority are not discriminated against in their access to the media. (…) The Parties shall not hinder the creation and the use of printed media by persons belonging to national minorities."
Some Rights that are expressed in positive but relatively weak or restricted terms in international instruments, for example art. 14 of the European Framework Convention provide that "In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the Parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language."
Participation in public bodies:(see Doc.) (see Doc.)Whilst the minority group needs to be able to preserve its own culture and promote its own identity and institutions, which requires self-segregation in part, it also needs to be able to participate in the political life of the State. There is some provisions in international instruments on participation of minorities in public affairs, in the political life of the State, particularly with respect to matters affecting its culture, identity and institutions. Exclusion from participation in the political processes of the State would be contrary to those standards. The Framework Convention in its Article 4 states that: "The Parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority", it further provides that "the Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them"(article 15). Article 2(3) of the UN Declaration on the Rights of Persons Belonging to National or Ethnic or Religious Minorities (1993) states that "Persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation".
Although the ECHR contains no minority rights provision and therefore there is no direct way for members of minority groups to claim minority rights in Strasbourg, the jurisprudence of the Strasbourg organs has been to include within national minorities all those groups that would be termed minorities under the 1992 Declaration (There is case law recognising the Roma as a national minority - Cyprus v Turkey, App.No. 25781/94, European Commission of Human Rights, adopted on 4 June 1999). There is some case law referring to exclusion of minorities from participation in the political processes of the State (See KPD v FRG, the German Communist Party case, App.No.250/57, 1 Yb.ECHR 222 (1957), which, by analogy, must imply the right to political participation in normal circumstances. See also United Communist Party of Turkey (TBKP) v Turkey, European Court of Human Rights, 133/1996/752/951, 30 January 1998, where the Court held, at para.45, that democracy was the only form of governance contemplated in the ECHR. In similar vein, Socialist Party v Turkey, European Court of Human Rights, 20/1997/804/1007, 25 May 1998, at para.47, and Stankov and United Macedonian Organisation "ILINDEN" v Bulgaria, supra n10.) . In the Italian Masons case (Grande Oriente D'Italia di Palazzo Giustiniani v Italy.), the applicant, the Grand Order, complained that laws governing regional elections barred members of the Masons from standing; as a result, the Order was a victim of, inter alia, breaches of Articles 11 and 14. The Fourth Section found the case to be admissible, in part because in singling out Masons, Italy had discriminated between that group and other organizations. The relevance of this case to minorities cannot be overestimated.
Thus, it is a generally recognized principle that a government must represent the whole people belonging to the territory without distinction of any kind thereby prohibiting, in particular according to Article 15 of the Framework Convention, a more or less complete blockage of its effective participation in decision-making processes, specially in matters affecting their culture, identity and institutions.
In other words, a system of total exclusion of persons on the ground of national or ethnic origin from representation and participation in executive and judicial bodies gravely infringes fundamental rights. Hence, provisions in domestic laws reserving a certain public office in the executive or judiciary exclusively for the majority without the possibility for minorities to be elected would violate International Standards. (See for instance Article 5 of the Racial Discrimination Convention).
Do minorities have the right
to self determination? (see next page)
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Today, several international human rights instruments refer directly or indirectly to national, ethnic, racial or religious groups, and some include special rights for persons belonging to minorities. Neither the UN Charter or the Universal Declaration of human rights have specific references to the issue.
The International Covenant on Civil and Political Rights (ICCPR) has specific provisions regarding the issue (there is no equivalent in the ECHR, OAS, OAU or ICESCR). The most widely accepted legally-binding provision on minorities is Article 27 of the ICCPR. It confers on persons belonging to minorities the right to national, ethnic, religious or linguistic identity, or a combination thereof, and to preserve the characteristics which they wish to maintain and develop. Although article 27 refers to the rights of minorities in those States in which they exist, its applicability is not subject to official recognition of a minority by a State. Article 27 does not call for special measures to be adopted by States, but States that have ratified the Covenant are obliged to ensure that all individuals under their jurisdiction enjoy their rights; this may require specific action to correct inequalities to which minorities are subjected. It states:
"In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language"
See the Committee on Human Rights General Comment No 23 on Article 27
However, the wording of Article 27 is problematic:
'In those States in which ethnic,
religious or linguistic minorities exist': Some States (e.g. France's
declaration in respect of art. 27 states that the article is inapplicable to
France as under the French Constitution there are no minorities. See T.K. v.
France, HRC, 1987 in which it was held that France's declaration must be treated
as a reservation, thus, France is not bound by Art. 27).
'Minorities
shall not be denied the right. . .' Some states have interpreted this as meaning
that they do not have an obligation to promote minority rights, rather they the
obligation is negative. But - General Comment 23 (50) Regards art. 27 as
imposing positive obligations on and duties on States (para. 6.1) Case law also
points to the fact that art. 27 imposes positive obligations on
States.
The Convention on the Prevention and Punishment of the Crime of Genocide also extends its protection to minority groups. Article II states:
Status and Scope