Human rights are established to protect the rights of the individual vis-à-vis the state. Frequently the most vulnerable persons in need of protection belong to groups/minorities that in one way or another distinguish themselves from the rest of society, e.g., by means of language, religion, ethnicity and culture. Throughout history minorities have suffered at the hands of oppressive majorities, enduring discrimination, land seizures, expulsion, forced assimilation and even genocide, and active repression by governments aiming at cultural unity has often resulted in loss of identity and culture. One of the difficult challenges governments face in an increasingly homogenised world is to strike a balance between legitimate concerns of marginalised minorities and those of the ruling majority.
Before the 19th century, protection set out for minorities was primarily concerned with religious minorities. In the Treaty of Berlin of 1878, for instance, the Balkan states joining the Concert of Europe were required to respect the freedom of religion inside their borders; those states would only be recognised under international law if religious freedom was respected for the Muslims in Bulgaria and Montenegro and for the Jews in Romania and Serbia.
In the wake of the First World War it became clear that existing arrangements provided insufficient protection for national minorities, but the Covenant establishing the League of Nations (1919) did not contain any general provision ensuring the rights of minorities. Protection was to be achieved through the adoption of treaties dealing with specific situations and endorsed by the major powers, but efforts to this end were not fruitful for various reasons.
After the Second World War, a different approach prevailed whereby the protection of individual rights and the prevention of discrimination were seen as effective methods of protection. Increasing emphasis on democracy and human rights has led to greater attention to the protection of the rights of minorities. Furthermore, national minority rights have become less of a taboo. Before, governments worried that granting rights to minorities would affect their territorial integrity, but after the end of the Cold War, the issue of the rights of minorities has became a priority area in many international fora, most notably the UN, the CoE and the OSCE. Increasingly, efforts are undertaken and ways are sought to protect the culture, traditions and identities of minorities, while at the same time ensuring equal treatment of all nationals and the territorial integrity of states.
In the international instruments on minorities there is no uniform definition of the term ‘minority’. The former OSCE High Commissioner on National Minorities, Mr. Max van der Stoel, provided useful points of reference in 1994:
The existence of a minority is a question of fact and not of definition. [...] First of all, a minority is a group with linguistic, ethnic or cultural characteristics, which distinguish it from the majority. Secondly, a minority is a group which usually not only seeks to maintain its identity but also tries to give stronger expression to that identity. (Address at the opening of the OSCE Minorities Seminar in Warsaw,1994).
Further, Mr. van der Stoel referred to the Copenhagen Document of 1990 which states that ‘to belong to a national minority is a matter of a person’s individual choice’ and indicated that he followed a pragmatic approach, stating that he knows a minority when he sees one. It should be noted that the lack of definition of the term remains subject to debate; for instance, while ratifying the CoE Framework Convention for the Protection of National Minorities, several states have made declarations wherein they set forth their own definitions of national minorities; other states have denounced such declarations. It is clear that in many instances a sharp distinction cannot be made between national and other minorities. These other minorities may include foreigners living in a country whose nationality they do not have, and ‘modern minorities’, such as migrants. This section concentrates on national minorities.
Under the auspices of the UN, neither the Charter nor the UDHR make any specific reference to the issue of ethnic, religious, or linguistic minorities; but in 1946, the Sub-Commission for the Prevention of Discrimination and Protection of Minorities (later Sub-Commission on the Promotion and Protection of Human Rights, now defunct) provided limited scope of attention to issues relating to national minorities.
In 1948, the Convention on the Prevention and Punishment of the Crime of Genocide was adopted, extending protection to minorities or groups; furthermore the UNESCO Convention against Discrimination in Education (1960), as well as CERD (1965), provided protective clauses extending to minorities. It was with the adoption of the ICCPR (1966) that the issue of national minorities received explicit attention. Article 27 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 practice their own religion, or to use their own language.
The Human Rights Committee has explained the scope of Article 27 in its General Comment 23 on the rights of minorities. A number of other rights in the ICCPR may be particularly relevant to minorities, along with the general protections that apply to all individuals, such as Articles 12 and 26. While there is no single article of the ICESCR dealing specifically with the subject of national minorities, there are several articles of particular interest to minorities, such as Articles 6, 7, 12, 13, 14 and 15. Additionally, Article 30 CRC extends to children the provision of Article 27 ICCPR regarding the right to enjoy one’s culture, practice one’s religion, and use one’s own language.
Of the UN human rights treaties, it is worth stressing the importance of CERD. The application of CERD is not limited to what is traditionally thought as ‘racial discrimination’; it is much broader. In fact, ‘racial discrimination’ is defined as ‘any distinction exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’ (emphasis added). The CERD Committee has consistently considered discrimination against minorities in its examination of states’ periodic reports.
In 1960, the UNGA adopted the ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’, which stipulated that ‘all peoples enjoy the right of self-determination’. However, the UN has never defined the term ‘peoples’. One may still ponder whether a minority should be considered a ‘people’ as this is a central question; an affirmative answer would imply that minorities are entitled to the rights of peoples, particularly the right of self-determination. The Declaration also stipulated that ‘disruption of national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the UN’. Article 2(4) of the Charter contains the relevant provision in this respect.
Until recently, little progress had been made in international fora regarding a specific, comprehensive instrument for the protection of minorities. In the UN context, a plan was already conceived in 1978 to draft a declaration on the protection of minorities. An open-ended Working Group was established that year under the aegis of the UN Commission on Human Rights but it was not until 1992 that the Working Group produced the ‘Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities’ adopted by the UNGA in December 1992 (Resolution 47/135). In comparison to some other documents dealing with national minorities, for instance CSCE documents (see below), the Declaration sets out limited standards of protection.
It is in the context of OSCE that most progress has been made in standard setting on the protection of persons belonging to national minorities. The Final Act of Helsinki (1975) contains an explicit reference to national minorities under Principle VII:
The Participating States on whose territory national minorities exist will respect the right of persons belonging to such minorities to equality before the law, will afford them the full opportunity for the actual enjoyment of human rights and fundamental freedoms and will, in this manner, protect their legitimate interests in this sphere.
The Document of the Copenhagen Meeting of the Conference on the Human Dimension (1990) contains a catalogue of rights of persons belonging to national minorities, setting out that: ‘The Participating States recognise that the questions relating to national minorities can only be satisfactorily resolved in a democratic political framework based on the Rule of Law, with a functioning independent judiciary.’ The Document sets out non-discrimination for persons belonging to national minorities and provides that states shall adopt necessary measures to ensure the rights of minorities. It stipulates that no disadvantage may arise from a person’s choice to belong to a national minority and that persons have a right to ‘preserve and develop their ethnic, cultural, linguistic or religious identity and to maintain and develop their culture in all its aspects, free of any attempts at assimilation against their will.’ Furthermore, the Document sets out that states ‘will protect the ethnic, cultural, linguistic and religious identity of national minorities on their territory and create conditions for the promotion of that identity.’ The Copenhagen document stimulated discussions in other fora such as the UN and the CoE.
In the European context, the CoE Framework Convention for the Protection of National Minorities is the most comprehensive international instrument dealing specifically with minority protection. The Convention was adopted on 10 November 1994 by the Committee of Ministers and had, by March 2009, been ratified by 39 states. The Framework Convention is based upon the commitments concerning the protection of national minorities contained in the Copenhagen Document and other OSCE (then CSCE) documents with a view ‘to transforming, to the greatest possible extent, these political commitments into legal obligations’. The word ‘Framework’ indicates that the principles contained in the instrument are not directly applicable in the domestic legal orders of the states parties to the Convention, but will have to be implemented through national legislation and appropriate governmental policies. The Framework Convention sets out some general principles, covering a wide range of issues: non-discrimination; promotion of effective equality; promotion of the conditions regarding the preservation and development of culture, religion, language and traditions; freedoms of assembly, association, expression, thought, conscience and religion; access to and use of media; linguistic freedoms; education; trans-frontier contacts and co-operation; participation in public, economic, cultural and social life; and prohibition of forced assimilation.
The Convention categorically states that it ‘does not imply the recognition of collective rights’ and that the emphasis is placed on the protection of ‘persons belonging to’ national minorities. However, in the Preamble to the Convention and Section 1 Article 1 reference is made both to ‘persons belonging to national minorities’ and to minorities as such. Like the OSCE, the Convention links the protection of national minorities to the issue of peace and security. The Preamble states that: ‘the upheavals of European history have shown that the protection of national minorities is essential to stability, democratic security and peace in this continent.’ However, this does not mean that minority issues unrelated to peace and security fall outside its scope, as may be seen in the mandate of the OSCE High Commissioner on National Minorities (see below). Another instrument in the CoE framework worth mentioning in regard to minorities’ protection is the European Charter for Regional or Minority Languages (1992), whose purpose is to protect languages ‘that are traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State’s population; and different from the official languages of that State’ (Article 1). The main aim of the Charter is to afford protection to existing regional and minority languages, such as Breton, Catalan, Lower Saxon and Frisian. The Charter itself excludes from its scope dialects of the official language(s) of the State or languages of migrants (Article 1). The Charter does not provide for individual or community protection, and states themselves indicate what languages they consider minority languages. The Charter entered into force in March 1998, and by March 2009, it had been ratified by 24 states.
Furthermore, although the European Convention does not contain a specific provision for the protection of minority rights, many articles of the ECHR can be resorted to in connection with minority issues, e.g.: Article 5 (the right to liberty and security of person), Article 8 (privacy and family life), Article 11 (freedom of peaceful assembly and association) and Article 2 First Protocol (the right to education).
Under the auspices of the UN many different bodies can be charged with supervising compliance with human rights obligations relating to the rights of national minorities for example:
The procedures before the Human Rights Committee on the basis of Articles 26 and 27 ICCPR (see, e.g., Ballantyne et al. v. Canada and Waldman v. Canada) (see II§1.C.1).
The procedure before the CERD Committee (see II§1.C.1). - The 1503 procedure (see I§6.C).
The Forum on Minority Issues.
The Independent Expert on Minority Issues.
The Forum on Minority Issues was established by the Human Rights Council, replacing the Working Group of Minorities (Resolution 6/15) in 2007. The forum is to provide a platform for promoting dialogue and co-operation on issues pertaining to national or ethnic, religious and linguistic minorities, providing thematic contributions and expertise to the work of the Independent Expert on Minority Issues (see below). The Forum shall identify and analyse best practices, challenges, opportunities and initiatives for the further implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. The Independent Expert guides the work of the Forum and shall report on the thematic recommendations of the Forum to the Human Rights Council. The Forum held its first session in 2008 resulting in the adoption of its first Recommendation, setting out principles regarding ‘Minorities and the right to education’ (A/HRC/10/11/Add.1). The Forum made recommendations concerning, inter alia, the meaning of effective and equal access to quality education, requirements for an effective education strategy and the content and delivery of curricula.
The UN Independent Expert on Minority Issues was created by the former Commission on Human Rights (Resolution 2005/79). The mandate, assumed by the Human Rights Council, complements and enhances the work of other UN bodies and mechanisms that address minority rights and minority issues, including the treaty monitoring bodies. The Independent Expert shall consult directly with governments, NGOs and other civil society actors and may undertake country visits.
Several minority cases have been brought before the supervisory mechanisms of the ECHR, especially as regards language rights. Plans to draw up a protocol to the ECHR protecting minority rights have so far not led to concrete results.
In the OSCE framework, the question of minority rights has been the subject of the Vienna mechanism. Hungary has used the mechanism, for instance, with respect to the Hungarian minority in Romania and Austria has used it with respect to the Kurdish minority in Turkey. In addition, the Moscow mechanism has been used by Russia with regard to the Russian minority in Estonia, and by The United Kingdom, acting on behalf of the EU, with regard to the former Yugoslavia.
Most important in relation to the protection of national minorities within the OSCE framework is the establishment, during the CSCE Follow-up Conference in Helsinki (1992), of the function of High Commissioner on National Minorities. The High Commissioner’s mandate involves the use of preventative or quiet diplomacy to ease tensions between national minorities and states parties and if possible to resolve the underlying issues. If attempts to de-escalate tensions should fail, the Commissioner shall alert the OSCE by issuing a notification entitled ‘early warning’. Only once has a situation so escalated, when the High Commissioner raised the alarm about inter-ethnic tensions in Macedonia, resulting from the large influx of Kosovo Albanian refugees (see I§6.D).
In relation to the European Charter for Regional or Minority Languages, states are obliged to report on their policy on regional and minority languages. The CoE Committee of Ministers, assisted by a Committee of Experts (Articles 1517), then determines whether a violation has taken place. Assistance is thus provided indirectly to minorities who wish, for instance, to support the preservation and public use of their language in schools. The support is indirect, because the Charter imposes a number of obligations on the contracting parties, which are not clearly formulated in terms of rights of (persons belonging to) national minorities.
The CoE Committee of Ministers supervises the implementation of the Framework Convention for the Protection of National Minorities, assisted by an expert Advisory Committee. States are required to report regularly, providing information on legislative and other measures taken to give effect to the principles of the Convention. The Advisory Committee examines the reports and may conduct country visits. Following its examination of a state’s report the Advisory Committee adopts an Opinion which is transmitted to the state concerned and the Committee of Ministers. The Committee of Ministers then adopts a resolution containing conclusions and recommendations to the state in question which are made public together with any comments of the state. This procedure has provided important insights into several issues relating to national minorities. The Advisory Committee has also recently begun to publish thematic commentaries on minority issues, which interpret the extent of the obligations imposed by the Convention. In 2008, a ‘Commentary on the Effective Participation of Persons belonging to National Minorities in Cultural, Social and Economic life and in Public Affairs’ was published. It posited, inter alia, that political parties formed on ethnic or religious grounds should be exempted from any threshold requirements that may apply with regard to parliamentary seats.
Although the treatment of national minorities has improved in many countries, practices of governments vary greatly. The different approaches depend very much on the actual situation, the identity of the minority, and its position in society. Some governments maintain an approach whereby assimilation of the various population groups is emphasised, a policy that might enhance state identity and can coincide with a government policy underlining individual rights and equal treatment. Such an approach, however, entails the risk that minority identity is neglected or even suppressed. Other governments maintain an approach whereby the gradual establishment of a multicultural society is the point of departure. Such an approach may entail the risk of disintegration or of undermining societal cohesion. Nevertheless, many states have been able to find successful and durable solutions for minority questions.