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JUR 5710 Institutions and Procedures

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  1. JUR 5710 Institutions and Procedures Minority Rights Maria Lundberg , NCHR

  2. International law and the protection of minority rights • Part of contemporary international human rights law. • Based on the fundamental premise of human rights law: that all persons are equal in dignity and rights, Article 1 of the Universal Declaration of Human Rights. • Aim: making it possible for all individuals which have a different culture or ethnicity, religion or language from the majority in a State to enjoy their own identity, while enjoying all rights in equality Maria Lundberg , NCHR

  3. The core elements of protection of identity • Include the right for members of minorities to • a) organise themselves as a group, • b) to use their own language, to practice their own religion or beliefs and to be able to preserve, to reproduce and to develop their own culture, and therefore • c) to control or have a significant impact on the content of the education of their new generations, and • d) to be able to effectively influence political decisions affecting themselves • e) to participate in and benefit from development Maria Lundberg , NCHR

  4. Four justifications of minority protection in international law • Basis for the legal protection of the rights of persons belonging to ethnic, national, religious and linguistic minorities • international human rights law • and the right to development • a human rights based approach to development • sustainable human development • international criminal law • maintenance of peace and stability • the protection of world cultural heritage. Maria Lundberg , NCHR

  5. Four Parts of Minority Rights • Protection of physical existence • Protection and promotion of cultural or social identity • Ensuring non-discrimination and equality • Ensuring effective participation in public life Maria Lundberg , NCHR

  6. International instruments (1) • Universal instruments addressing minority/indigenous rights: • Article 27 of the International Covenant on Civil and Political Rights, ICCPR (1966) • Article 30 of the Convention on the Rights of the Child, CRC (1986) • The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Minority Declaration (1992) • UNESCO Convention Against Discrimination in Education (1960) • ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989) • The UN Declaration on the Rights of Indigenous Peoples (2007) Maria Lundberg , NCHR

  7. International instruments (2) • Persons belonging to minorities shall enjoy all human rights in equality and dignity • Article 1 of the Universal Declaration of Human Rights (UDHR) • The rule of non-discrimination • Direct and indirect discrimination • Positive action and special measures Maria Lundberg , NCHR

  8. Regional instruments: Europe • Council of Europe: • European Charter for Regional and Minority Languages (1992) • Framework Convention for the Protection of National Minorities (1995) • Organisation for Security and Cooperation in Europe, OSCE: • Copenhagen Document of the Human Dimension CSCE (1990) and other Maria Lundberg , NCHR

  9. International Supervision (1) • UN Charter based organs • General Assembly • Human Rights Council • Special procedures • Independent Expert on Minority Issues, Gay MacDougall • Security Council • International Court of Justice State representatives, experts and judges consider human rights performance Maria Lundberg , NCHR

  10. International Supervision (2) • International treaties provides for: • Treaty bodies – experts • Advisory bodies – experts • Political bodies – State representatives • International Courts – judges In general, experts consider state performance in accordance with a treaty Maria Lundberg , NCHR

  11. Historical basis • From 16th and 17th century in Europe: part of different peace settlements. • The League of Nations - minority protection became the compensation for those groups which were not granted national self-determination and independent statehood Maria Lundberg , NCHR

  12. Historical basis (2) • The United Nations (UN): • Non-discrimination in the UN Charter • Non-discrimination in the UDHR • GA Res. 217/C (III) ”Fate of Minorities” • Article 27 of the ICCPR provides 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 other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language Maria Lundberg , NCHR

  13. Definition of minorities (1) • Never any agreement among states • Special rapporteur Caportorti’s definition in application of Article 27 ICCPR (1979): • A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members –being nationals of the State – posses ethnic, religious or linguistic characteristics differing from the rest of of the population and show, if only implicitly, a sense of solidarity directed towards preserving their culture, traditions, religion or language. Maria Lundberg , NCHR

  14. Definition of minorities (2) • Developments: • Non-citizens • Indigenous peoples • ”New minorities” • Subjective criteria emphasized • Multiple identities • One suggestion: An association of persons seeking a specified end which differs from that sought by the numerical majority (John Packer, 1999) Maria Lundberg , NCHR

  15. Non-discrimination (1) • the state shall ensure the rights contained in the relevant conventions to everyone (all persons on the territory/jurisdiction) without discrimination of any kind, based on grounds such as race, colour, sex, language, national, ethnic or social origin. Maria Lundberg , NCHR

  16. Non-discrimination (2) • European Court of Human Rights have developed criteria for an absence of objective and reasonable justification for a distinction in treatment in equal situations : • the justification must be assessed in relation to the aim and the effects of the measure under consideration, with due regard being given to the principles which normally prevails in democratic societies; • the aim must be a legitimate one; • there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised. (in Case relating to certain Aspects of the Laws on the Use of Languages in Education in Belgium, Ser. A, No. 6, Vol. XVI, Judgment of 23 July 1968, p. 34) Maria Lundberg , NCHR

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

  18. Convention on the Elimination of All forms of Racial Discrimination,1965 • Article 2.2 : States shall, when 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. • Cf. Convention on the Elimination of All Forms of Discrimination Against Women,1979, Art. 4. Maria Lundberg , NCHR

  19. Obligation to Differentiate • In the practice of the European Court of Human Rights: differences in otherwise similar situations are said to justify differences in treatment and significant differencesmay even require appropriate accommodation • Thlimmenos v. Greece (Application no. 34369/97), Judgment of 6 April 2000, para. 44: • The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without objective and reasonable justification fail to treat differently persons whose situation is significantly different • Cf. Protocol 12 to the ECHR Maria Lundberg , NCHR

  20. Equality for persons belonging to minorities • A notion of “full and effective “ equality should include measures to: • Prevent discrimination by the State or private parties • Remedy conditions which cause or help to perpetuate discrimination • Promote and protect the identity and development of different groups, including minority groups Maria Lundberg , NCHR

  21. UNESCO Convention against Discrimination in Education (1960) • Earliest containing reference to minority rights: • in this context of private schools that the Convention affirms that States shall recognise: • the right of members of national minorities to carry on their own educational activities, including the maintenance of schools and, depending on the educational policy of each State, the use or the teaching of their own language Maria Lundberg , NCHR

  22. UN Minority Declaration of 1992, • UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities contributes to the development of standards on minority rights by • stating the rights of persons belonging to minorities in a positive language, (compare with Article 27 ICCPR) • stating that States have the obligation to adopt measures to ensure the enjoyment of minority rights (Article 4), • stating that States have the obligation to protect and promote the existence and identity of minorities as groups (Article 1), • stating the right of effective participation (Article 2) • stating that the rights can be exercised either individually or collectively (Article 3), and • elaborating that the legitimate interests of minorities shall be taken into account in State policy and programmes (Article 5). Maria Lundberg , NCHR

  23. UN Declaration on the Rights of Indigenous Peoples (2007) • Self-determination • Autonomy as internal self-determination • Effective Participation • Decision-making: Free, prior and informed consent • Land rights • Restitution or Compensation for loss of land Maria Lundberg , NCHR

  24. Charter for Regional or Minority Languages of 1992 • Recognition of the importance of regional and minority languages for the common cultural heritage in Europe. • The Convention provides a system of alternative undertakings to protect regional or minority languages. Maria Lundberg , NCHR

  25. Framework Convention for the Protection of National Minorities • Council of Europe • First legally binding instrument specifically for minority protection • Rights exercised individually as well as collectively • Aim is threefold: • 1. enhancing respect for the ethnic, cultural, linguistic and religious identity of persons belonging to national minorities • 2. creating appropriate conditions enabling persons belonging to national minorities to express, preserve and develop their identity, and • 3. creating a climate of tolerance and dialogue. Maria Lundberg , NCHR

  26. Framework Convention for the Protection of National Minorities • Rights which are part of general human rights law, including the right to freedom of expression, association, assembly and freedom of thought conscience and religion. • Measures to prevent discrimination • Measures to preserve and promote conditions for identity • Measures to promote intercultural dialogue • International measures of co-operation in these fields Maria Lundberg , NCHR

  27. Framework Convention for the Protection of National Minorities • The measures to preserve and promote conditions for the enjoyment of the minorities’ own identity are of different kinds. They can be organised according to the fields to which they apply: • Measures for the protection of minority groups • Measures for the effective participation in public life by members of minorities • Measures for the use of minority languages • Measures for education of members of minorities • Measures for the access and use of media by members of minorities • Measures for the practice religion by members of minorities • Measures for the enjoyment of culture by the members of minorities Maria Lundberg , NCHR

  28. The right to self-determination • Collective or group aspects of minority rights have been strengthened by linking interpretation of Article 27 (and other rights) to Article 1 of the ICCPR: • This right is of “particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights”, Gen. Comment No.12 (1984), para.1 Maria Lundberg , NCHR

  29. The right to self-determination • The right of “all peoples” to self-determination has • (1) a political dimension “freely determine their political status” and • (2) a resource dimension, pursue their “economic, social and cultural development”. • Internal external aspects Maria Lundberg , NCHR

  30. The right to self-determination • UN Declaration on Indigenous Rights • Art. 3: Indigenous peoples have the right to self-determination. • Art. 4: Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. Maria Lundberg , NCHR

  31. ILO Convention169 concerning Indigenous and Tribal Peoples • Article 1 includes a definition • Subjective element • Article 1, para. 3 stipulates that “the use of the term “peoples” in this Convention shall not be construed as having implications as regards to the rights which may attach to the term under international law.” Maria Lundberg , NCHR

  32. ILO Convention169 … • Rights to participate in decision-making is reflected in Articles 6 and 7 including “their representative institutions” and setting the priorities for the determination of their own future • Land rights of indigenous peoples are defined in Articles 13-19 Maria Lundberg , NCHR