Minority rights in international law

Human Rights Quarterly

Volumn 19, Issue 3, 1997, Pages 666-685

  Pejic, Jelena ^a,b,c,d,e  

^a Lawyers' Committee for Human Rights   (United States)

^b Columbia University Law School ^*  (United States)

^c Dept Pub Intl Law and Intl Rel   (Macedonia)

^d Och Spine at New York Presbyterian Hospitals   (United States)

^e UNIVERSITY OF BELGRADE   (Serbia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0343494873     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.1997.0032     Document Type: Article

References (93)

1. See generally Thomas M. Franck, Postmodern Tribalism and the Right to Secession, in PEOPLES AND MINORITIES IN INTERNATIONAL LAW 3 (Catherine Brölmann et al. eds., 1993) (using the term postmodern tribalism).
2. Id. at 4.
3. See OLDRICH ANDRYSEK, REPORT ON THE DEFINITION OF MINORITIES (SIM Special No. 19, Netherlands Institute of Human Rights 1989).
4. Regional attempts were just as unfruitful. No legally binding regional human rights instrument makes any reference to minority rights, much less defines them. The only exception is the European Convention on Human Rights and Fundamental Freedoms (ECHR) which, in Article 14, prohibits "association with a national minority" as a ground for discrimination. European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 14, opened for signature 4 Nov. 1950, Eur. T.S. No. 5, 213 U.N.T.S. 221 (entered into force 3 Sept. 1953). It has often been pointed out that Article 14 has "no independent existence of its own," because it can be invoked only when one of the individual rights for which the ECHR or its Protocols provide has been violated. See Ferdinando Albanese, Ethnic and Linguistic Minorities in Europe, in 11 Y.B. OF EUR. L. 325 (1991); cf. CHRISTIAN HILLGRUBER AND MATTHIAS JESTAEDT, THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE PROTECTION OF NATIONAL MINORITIES (1994) (providing a different view on the ECHR's scope, based on the case law of the European Court of Human Rights). More recently, two treaties were adopted within the Council of Europe: the Framework Convention for the Protection of National Minorities, Council of Europe, Framework Convention for the Protection of National Minorities, opened for signature 1 Feb. 1995, Council of Europe Parliamentary Assembly, reprinted in 16 HUM. RTS. L.J. 98 (1995) [hereinafter Framework Convention], and the European Charter for Regional or Minority Languages, Council of Europe, European Charter for Regional or Minority Languages, opened for signature 5 Nov. 1992, Eur. T.S. No. 148 (1992), reprinted in COUNCIL OF EUROPE, EXPLANATORY REPORT - EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES 41 (1993). Neither defines what a minority is nor has come into force. The former, which was opened for signature in 1995, has so far garnered four ratifications out of the necessary twelve. See Jean-Bernard Marie, International Instruments Relating to Human Rights: Classification and Status of Ratifications as of 1 January 1996, 17 HUM. RTS. L.J. 61, 71 (1996). The latter, which was opened for signature in 1992, has been ratified by three out the required five states. See id.
5. Regional attempts were just as unfruitful. No legally binding regional human rights instrument makes any reference to minority rights, much less defines them. The only exception is the European Convention on Human Rights and Fundamental Freedoms (ECHR) which, in Article 14, prohibits "association with a national minority" as a ground for discrimination. European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 14, opened for signature 4 Nov. 1950, Eur. T.S. No. 5, 213 U.N.T.S. 221 (entered into force 3 Sept. 1953). It has often been pointed out that Article 14 has "no independent existence of its own," because it can be invoked only when one of the individual rights for which the ECHR or its Protocols provide has been violated. See Ferdinando Albanese, Ethnic and Linguistic Minorities in Europe, in 11 Y.B. OF EUR. L. 325 (1991); cf. CHRISTIAN HILLGRUBER AND MATTHIAS JESTAEDT, THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE PROTECTION OF NATIONAL MINORITIES (1994) (providing a different view on the ECHR's scope, based on the case law of the European Court of Human Rights). More recently, two treaties were adopted within the Council of Europe: the Framework Convention for the Protection of National Minorities, Council of Europe, Framework Convention for the Protection of National Minorities, opened for signature 1 Feb. 1995, Council of Europe Parliamentary Assembly, reprinted in 16 HUM. RTS. L.J. 98 (1995) [hereinafter Framework Convention], and the European Charter for Regional or Minority Languages, Council of Europe, European Charter for Regional or Minority Languages, opened for signature 5 Nov. 1992, Eur. T.S. No. 148 (1992), reprinted in COUNCIL OF EUROPE, EXPLANATORY REPORT - EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES 41 (1993). Neither defines what a minority is nor has come into force. The former, which was opened for signature in 1995, has so far garnered four ratifications out of the necessary twelve. See Jean-Bernard Marie, International Instruments Relating to Human Rights: Classification and Status of Ratifications as of 1 January 1996, 17 HUM. RTS. L.J. 61, 71 (1996). The latter, which was opened for signature in 1992, has been ratified by three out the required five states. See id.
6. Regional attempts were just as unfruitful. No legally binding regional human rights instrument makes any reference to minority rights, much less defines them. The only exception is the European Convention on Human Rights and Fundamental Freedoms (ECHR) which, in Article 14, prohibits "association with a national minority" as a ground for discrimination. European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 14, opened for signature 4 Nov. 1950, Eur. T.S. No. 5, 213 U.N.T.S. 221 (entered into force 3 Sept. 1953). It has often been pointed out that Article 14 has "no independent existence of its own," because it can be invoked only when one of the individual rights for which the ECHR or its Protocols provide has been violated. See Ferdinando Albanese, Ethnic and Linguistic Minorities in Europe, in 11 Y.B. OF EUR. L. 325 (1991); cf. CHRISTIAN HILLGRUBER AND MATTHIAS JESTAEDT, THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE PROTECTION OF NATIONAL MINORITIES (1994) (providing a different view on the ECHR's scope, based on the case law of the European Court of Human Rights). More recently, two treaties were adopted within the Council of Europe: the Framework Convention for the Protection of National Minorities, Council of Europe, Framework Convention for the Protection of National Minorities, opened for signature 1 Feb. 1995, Council of Europe Parliamentary Assembly, reprinted in 16 HUM. RTS. L.J. 98 (1995) [hereinafter Framework Convention], and the European Charter for Regional or Minority Languages, Council of Europe, European Charter for Regional or Minority Languages, opened for signature 5 Nov. 1992, Eur. T.S. No. 148 (1992), reprinted in COUNCIL OF EUROPE, EXPLANATORY REPORT - EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES 41 (1993). Neither defines what a minority is nor has come into force. The former, which was opened for signature in 1995, has so far garnered four ratifications out of the necessary twelve. See Jean-Bernard Marie, International Instruments Relating to Human Rights: Classification and Status of Ratifications as of 1 January 1996, 17 HUM. RTS. L.J. 61, 71 (1996). The latter, which was opened for signature in 1992, has been ratified by three out the required five states. See id.
7. Regional attempts were just as unfruitful. No legally binding regional human rights instrument makes any reference to minority rights, much less defines them. The only exception is the European Convention on Human Rights and Fundamental Freedoms (ECHR) which, in Article 14, prohibits "association with a national minority" as a ground for discrimination. European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 14, opened for signature 4 Nov. 1950, Eur. T.S. No. 5, 213 U.N.T.S. 221 (entered into force 3 Sept. 1953). It has often been pointed out that Article 14 has "no independent existence of its own," because it can be invoked only when one of the individual rights for which the ECHR or its Protocols provide has been violated. See Ferdinando Albanese, Ethnic and Linguistic Minorities in Europe, in 11 Y.B. OF EUR. L. 325 (1991); cf. CHRISTIAN HILLGRUBER AND MATTHIAS JESTAEDT, THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE PROTECTION OF NATIONAL MINORITIES (1994) (providing a different view on the ECHR's scope, based on the case law of the European Court of Human Rights). More recently, two treaties were adopted within the Council of Europe: the Framework Convention for the Protection of National Minorities, Council of Europe, Framework Convention for the Protection of National Minorities, opened for signature 1 Feb. 1995, Council of Europe Parliamentary Assembly, reprinted in 16 HUM. RTS. L.J. 98 (1995) [hereinafter Framework Convention], and the European Charter for Regional or Minority Languages, Council of Europe, European Charter for Regional or Minority Languages, opened for signature 5 Nov. 1992, Eur. T.S. No. 148 (1992), reprinted in COUNCIL OF EUROPE, EXPLANATORY REPORT - EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES 41 (1993). Neither defines what a minority is nor has come into force. The former, which was opened for signature in 1995, has so far garnered four ratifications out of the necessary twelve. See Jean-Bernard Marie, International Instruments Relating to Human Rights: Classification and Status of Ratifications as of 1 January 1996, 17 HUM. RTS. L.J. 61, 71 (1996). The latter, which was opened for signature in 1992, has been ratified by three out the required five states. See id.
8. Regional attempts were just as unfruitful. No legally binding regional human rights instrument makes any reference to minority rights, much less defines them. The only exception is the European Convention on Human Rights and Fundamental Freedoms (ECHR) which, in Article 14, prohibits "association with a national minority" as a ground for discrimination. European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 14, opened for signature 4 Nov. 1950, Eur. T.S. No. 5, 213 U.N.T.S. 221 (entered into force 3 Sept. 1953). It has often been pointed out that Article 14 has "no independent existence of its own," because it can be invoked only when one of the individual rights for which the ECHR or its Protocols provide has been violated. See Ferdinando Albanese, Ethnic and Linguistic Minorities in Europe, in 11 Y.B. OF EUR. L. 325 (1991); cf. CHRISTIAN HILLGRUBER AND MATTHIAS JESTAEDT, THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE PROTECTION OF NATIONAL MINORITIES (1994) (providing a different view on the ECHR's scope, based on the case law of the European Court of Human Rights). More recently, two treaties were adopted within the Council of Europe: the Framework Convention for the Protection of National Minorities, Council of Europe, Framework Convention for the Protection of National Minorities, opened for signature 1 Feb. 1995, Council of Europe Parliamentary Assembly, reprinted in 16 HUM. RTS. L.J. 98 (1995) [hereinafter Framework Convention], and the European Charter for Regional or Minority Languages, Council of Europe, European Charter for Regional or Minority Languages, opened for signature 5 Nov. 1992, Eur. T.S. No. 148 (1992), reprinted in COUNCIL OF EUROPE, EXPLANATORY REPORT - EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES 41 (1993). Neither defines what a minority is nor has come into force. The former, which was opened for signature in 1995, has so far garnered four ratifications out of the necessary twelve. See Jean-Bernard Marie, International Instruments Relating to Human Rights: Classification and Status of Ratifications as of 1 January 1996, 17 HUM. RTS. L.J. 61, 71 (1996). The latter, which was opened for signature in 1992, has been ratified by three out the required five states. See id.
9. Regional attempts were just as unfruitful. No legally binding regional human rights instrument makes any reference to minority rights, much less defines them. The only exception is the European Convention on Human Rights and Fundamental Freedoms (ECHR) which, in Article 14, prohibits "association with a national minority" as a ground for discrimination. European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 14, opened for signature 4 Nov. 1950, Eur. T.S. No. 5, 213 U.N.T.S. 221 (entered into force 3 Sept. 1953). It has often been pointed out that Article 14 has "no independent existence of its own," because it can be invoked only when one of the individual rights for which the ECHR or its Protocols provide has been violated. See Ferdinando Albanese, Ethnic and Linguistic Minorities in Europe, in 11 Y.B. OF EUR. L. 325 (1991); cf. CHRISTIAN HILLGRUBER AND MATTHIAS JESTAEDT, THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE PROTECTION OF NATIONAL MINORITIES (1994) (providing a different view on the ECHR's scope, based on the case law of the European Court of Human Rights). More recently, two treaties were adopted within the Council of Europe: the Framework Convention for the Protection of National Minorities, Council of Europe, Framework Convention for the Protection of National Minorities, opened for signature 1 Feb. 1995, Council of Europe Parliamentary Assembly, reprinted in 16 HUM. RTS. L.J. 98 (1995) [hereinafter Framework Convention], and the European Charter for Regional or Minority Languages, Council of Europe, European Charter for Regional or Minority Languages, opened for signature 5 Nov. 1992, Eur. T.S. No. 148 (1992), reprinted in COUNCIL OF EUROPE, EXPLANATORY REPORT - EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES 41 (1993). Neither defines what a minority is nor has come into force. The former, which was opened for signature in 1995, has so far garnered four ratifications out of the necessary twelve. See Jean-Bernard Marie, International Instruments Relating to Human Rights: Classification and Status of Ratifications as of 1 January 1996, 17 HUM. RTS. L.J. 61, 71 (1996). The latter, which was opened for signature in 1992, has been ratified by three out the required five states. See id.
10. Regional attempts were just as unfruitful. No legally binding regional human rights instrument makes any reference to minority rights, much less defines them. The only exception is the European Convention on Human Rights and Fundamental Freedoms (ECHR) which, in Article 14, prohibits "association with a national minority" as a ground for discrimination. European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 14, opened for signature 4 Nov. 1950, Eur. T.S. No. 5, 213 U.N.T.S. 221 (entered into force 3 Sept. 1953). It has often been pointed out that Article 14 has "no independent existence of its own," because it can be invoked only when one of the individual rights for which the ECHR or its Protocols provide has been violated. See Ferdinando Albanese, Ethnic and Linguistic Minorities in Europe, in 11 Y.B. OF EUR. L. 325 (1991); cf. CHRISTIAN HILLGRUBER AND MATTHIAS JESTAEDT, THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE PROTECTION OF NATIONAL MINORITIES (1994) (providing a different view on the ECHR's scope, based on the case law of the European Court of Human Rights). More recently, two treaties were adopted within the Council of Europe: the Framework Convention for the Protection of National Minorities, Council of Europe, Framework Convention for the Protection of National Minorities, opened for signature 1 Feb. 1995, Council of Europe Parliamentary Assembly, reprinted in 16 HUM. RTS. L.J. 98 (1995) [hereinafter Framework Convention], and the European Charter for Regional or Minority Languages, Council of Europe, European Charter for Regional or Minority Languages, opened for signature 5 Nov. 1992, Eur. T.S. No. 148 (1992), reprinted in COUNCIL OF EUROPE, EXPLANATORY REPORT - EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES 41 (1993). Neither defines what a minority is nor has come into force. The former, which was opened for signature in 1995, has so far garnered four ratifications out of the necessary twelve. See Jean-Bernard Marie, International Instruments Relating to Human Rights: Classification and Status of Ratifications as of 1 January 1996, 17 HUM. RTS. L.J. 61, 71 (1996). The latter, which was opened for signature in 1992, has been ratified by three out the required five states. See id.
11. U.N. CHARTER, signed 26 June 1945, 59 Stat. 1031, T.S. 993 (entered into force 24 Oct. 1945).
12. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), 3 U.N. GAOR (Resolutions, part 1) at 71, U.N. Doc. A/810 (1948), reprinted in 43 AM. J. INT'L L. SUPP. 127 (1949).
13. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), 3 U.N. GAOR (Resolutions, part 1) at 71, U.N. Doc. A/810 (1948), reprinted in 43 AM. J. INT'L L. SUPP. 127 (1949).
14. Francesco Capotorti, The Protection of Minorities under Multilateral Agreements on Human Rights, in MINORITIES IN NATIONAL AND INTERNATIONAL LAWS 218, 227 (Satish Chandra ed., 1985) (citing U.N. Doc. A/Res/21 7(III) C).
15. Id. At its first session, held in 1947, the Subcommission had in fact taken up the issue of minority protection, defining it as the protection of groups which are not dominant in a country and which, while as a rule expecting to be treated on a footing of equality with the majority, in some degree want different treatment designed to preserve the basic features which distinguish them from the majority of the population. Id. at 227-28. This definition is today only of historical significance, but should be noted as a rudimentary effort to define what a minority is.
16. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, 999 U.N.T.S. 171 (entered into force 23 Mar. 1976), C.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966) [hereinafter ICCPR]. The 1992 U.N. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, which was meant to provide clarification of ICCPR Article 27, also contains no definition. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted 18 Dec. 1992, G.A. Res. 47/135 Annex, U.N. Doc. A/Res/47/135/Annex (1992) [hereinafter U.N. Declaration on Minorities].
17. ICCPR, supra note 9, art. 27.
18. France's explanation for this action may be found in its initial and second periodic reports submitted to the Human Rights Committee (HRC) under Article 40 of the ICCPR: "Since the basic principles of public law prohibit distinctions between citizens on grounds of origin, race or religion, France is a country in which there are no minorities and, as stated in the declaration made by France, Article 27 is not applicable as far as the Republic is concerned." Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: France, U.N. GAOR, Hum. Rts. Comm., 26 Aug. 1987, ¶ 540, U.M. Doc. CCPR/C/46/Add.2 (1987); see also Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: France, U.N. GAOR, Hum. Rts. Comm., 10 May 1982, U.M. Doc. CCPR/C/22/Add.2 (1982). In a later review of individual complaints submitted against France under the first Optional Protocol, the HRC held that France's declaration upon accession to the Covenant must be considered a binding reservation. Report of the Human Rights Committee to the General Assembly: Communication No. 220/1987, adopted 8 Nov. 1989, 45 U.N. GAOR Supp. (No. 40) at 118, U.N. Doc. A/45/40, Vol. II (1989); Report of the Human Rights Committee to the General Assembly: Communication No. 222/1987, adopted 8 Nov. 1989, 45 U.N. GAOR Supp. (No. 40) at 125, 133, U.N. Doc. A/45/40, Vol. II (1989).
19. France's explanation for this action may be found in its initial and second periodic reports submitted to the Human Rights Committee (HRC) under Article 40 of the ICCPR: "Since the basic principles of public law prohibit distinctions between citizens on grounds of origin, race or religion, France is a country in which there are no minorities and, as stated in the declaration made by France, Article 27 is not applicable as far as the Republic is concerned." Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: France, U.N. GAOR, Hum. Rts. Comm., 26 Aug. 1987, ¶ 540, U.M. Doc. CCPR/C/46/Add.2 (1987); see also Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: France, U.N. GAOR, Hum. Rts. Comm., 10 May 1982, U.M. Doc. CCPR/C/22/Add.2 (1982). In a later review of individual complaints submitted against France under the first Optional Protocol, the HRC held that France's declaration upon accession to the Covenant must be considered a binding reservation. Report of the Human Rights Committee to the General Assembly: Communication No. 220/1987, adopted 8 Nov. 1989, 45 U.N. GAOR Supp. (No. 40) at 118, U.N. Doc. A/45/40, Vol. II (1989); Report of the Human Rights Committee to the General Assembly: Communication No. 222/1987, adopted 8 Nov. 1989, 45 U.N. GAOR Supp. (No. 40) at 125, 133, U.N. Doc. A/45/40, Vol. II (1989).
20. France's explanation for this action may be found in its initial and second periodic reports submitted to the Human Rights Committee (HRC) under Article 40 of the ICCPR: "Since the basic principles of public law prohibit distinctions between citizens on grounds of origin, race or religion, France is a country in which there are no minorities and, as stated in the declaration made by France, Article 27 is not applicable as far as the Republic is concerned." Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: France, U.N. GAOR, Hum. Rts. Comm., 26 Aug. 1987, ¶ 540, U.M. Doc. CCPR/C/46/Add.2 (1987); see also Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: France, U.N. GAOR, Hum. Rts. Comm., 10 May 1982, U.M. Doc. CCPR/C/22/Add.2 (1982). In a later review of individual complaints submitted against France under the first Optional Protocol, the HRC held that France's declaration upon accession to the Covenant must be considered a binding reservation. Report of the Human Rights Committee to the General Assembly: Communication No. 220/1987, adopted 8 Nov. 1989, 45 U.N. GAOR Supp. (No. 40) at 118, U.N. Doc. A/45/40, Vol. II (1989); Report of the Human Rights Committee to the General Assembly: Communication No. 222/1987, adopted 8 Nov. 1989, 45 U.N. GAOR Supp. (No. 40) at 125, 133, U.N. Doc. A/45/40, Vol. II (1989).
21. France's explanation for this action may be found in its initial and second periodic reports submitted to the Human Rights Committee (HRC) under Article 40 of the ICCPR: "Since the basic principles of public law prohibit distinctions between citizens on grounds of origin, race or religion, France is a country in which there are no minorities and, as stated in the declaration made by France, Article 27 is not applicable as far as the Republic is concerned." Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: France, U.N. GAOR, Hum. Rts. Comm., 26 Aug. 1987, ¶ 540, U.M. Doc. CCPR/C/46/Add.2 (1987); see also Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: France, U.N. GAOR, Hum. Rts. Comm., 10 May 1982, U.M. Doc. CCPR/C/22/Add.2 (1982). In a later review of individual complaints submitted against France under the first Optional Protocol, the HRC held that France's declaration upon accession to the Covenant must be considered a binding reservation. Report of the Human Rights Committee to the General Assembly: Communication No. 220/1987, adopted 8 Nov. 1989, 45 U.N. GAOR Supp. (No. 40) at 118, U.N. Doc. A/45/40, Vol. II (1989); Report of the Human Rights Committee to the General Assembly: Communication No. 222/1987, adopted 8 Nov. 1989, 45 U.N. GAOR Supp. (No. 40) at 125, 133, U.N. Doc. A/45/40, Vol. II (1989).
22. ICCPR, supra note 9, art. 27.
23. Id.
24. Capotorti was appointed Special Rapporteur in 1971. His mandate made special reference to analyzing the concept of minority. See FRANCESCO CAPOTORTI, SPECIAL RAPPORTEUR OF THE SUB-COMMISSION ON PREVENTION OF DISCRIMINATION AND PROTECTION OF MINORITIES, STUDY ON THE RIGHTS OF PERSONS BELONGING TO ETHNIC, RELIGIOUS AND LINGUISTIC MINORITIES, U.N. Doc. E/ CN.4/Sub.2/384/Rev.1, U.N. Sales No. E.78.XIV.1 (1979).
25. Id. ¶ 568. Capotorti's definition was followed in 1985 by that of Special Rapporteur Jules Desehenes, which also deserves to be mentioned. In his study presented to the Subcommission, Deschenes defined a minority as: A group of citizens of a State, constituting a numerical minority and in a non-dominant position in that State, endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim is to achieve equality with the majority in fact and in law. Jules Desehenes, Promotion, Protection and Restoration of Human Rights at the National, Regional and International Levels, ¶ 181, U.N. Doc. E/CN.4/Sub.2/1985/31 (1985).
26. See MANFRED NOWAK, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS, CCPR COMMENTARY 487-88 (1993).
27. Id. at 488.
28. Articles 13 and 25 are exceptions to this comment.
29. General Comment No. 15, adopted 22 July 1986, 27 U.N. GAOR, Hum. Rts. Comm., 696th mtg., U.N. Doc. CCPR/C/21/Rev.1 (1989) reprinted in NOWAK, supra note 16, at 861.
30. Id.
31. General Comment No. 23, adopted 6 Apr. 1994, 50 U.N. GAOR, Hum. Rts. Comm., 1314th mtg., U.N. Doc. CCPR/C/21/Rev.1/Add.5 (1994), reprinted in 15 HUM. RTS. L.J. 234 (1994).
32. NOWAK, supra note 16, at 483.
33. Id. at 490.
34. HUM. RTS. L.J., supra note 21, at 235.
35. Id.
36. See Advisory Opinion of 31 July 1930, 1930 PCIJ (ser. A/B), No. 17, at 22.
37. The debate on whether Article 27 also applies to indigenous peoples deserves to be mentioned in this context. It is submitted that indigenous peoples can be included provided they fulfill the already outlined criteria used to define a minority. However, two points need to be stressed. First, there is no doubt that due to specific historical circumstances, as well as their current condition, many indigenous peoples might require measures of special protection far exceeding those enabled by Article 27. Second, it should not be overlooked that indigenous peoples often reject being categorized as a minority and regard themselves as peoples within the meaning of Article 1 of the Covenant. See Catherine Brölmann & Marjoleine Zieck, Indigenous Peoples, in PEOPLES AND MINORITIES IN INTERNATIONAL LAW, supra note 1, at 187, 195.
38. NOWAK, supra note 16, at 491.
39. Id.
40. Framework Convention, supra note 4.
41. The U.N. Declaration on Minorities is not helpful in this regard. Article 1, which specifies that states shall protect the existence and identity of minorities, seems to adopt a collective approach. However, all the other provisions refer to "persons belonging to minorities." U.N. Declaration on Minorities, supra note 9.
42. See PATRICK THORNBERRY, INTERNATIONAL LAW AND THE RIGHTS OF MINORITIES 174 (1991).
43. See Natan Lerner, The Evolution of Minority Rights in International Law, in PEOPLES AND MINORITIES IN INTERNATIONAL LAW, supra note 1, at 77, 90-91 (reviewing scholarly opinion on this issue).
44. THORNBERRY, supra note 32, at 173.
45. Convention Against Discrimination in Education, adopted 14 Dec. 1960, 429 U.N.T.S. 93 (entered into force 22 May 1962), reprinted in RICHARD LILLICH, INTERNATIONAL HUMAN RIGHTS INSTRUMENTS 330.1 (1990).
46. Convention Against Discrimination in Education, adopted 14 Dec. 1960, 429 U.N.T.S. 93 (entered into force 22 May 1962), reprinted in RICHARD LILLICH, INTERNATIONAL HUMAN RIGHTS INSTRUMENTS 330.1 (1990).
47. International Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 Dec. 1965, 660 U.N.T.S. 195 (entered into force 4 Jan. 1969) [hereinafter CERD].
48. Convention on the Prevention and Punishment of the Crime of Genocide, 9 Dec. 1948, 78 U.N.T.S. 277 (entered into force 12 Jan. 1951) (entered into force for U.S. 23 Feb. 1989).
49. Declaration on Race and Racial Prejudice, adopted 1978, UNESCO, 20th Sess., reprinted in ALBERT BLAUSTEIN ET AL., HUMAN RIGHTS SOURCEBOOK 340 (1987).
50. Declaration on Race and Racial Prejudice, adopted 1978, UNESCO, 20th Sess., reprinted in ALBERT BLAUSTEIN ET AL., HUMAN RIGHTS SOURCEBOOK 340 (1987).
51. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, adopted 25 Nov. 1981, G.A. Res. 36/55, 36 U.N. GAOR Supp. (No. 51) at 171, U.N. Doc. A/36/51 (1982), reprinted in RICHARD LILLICH, INTERNATIONAL HUMAN RIGHTS INSTRUMENTS 490.1 (1990).
52. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, adopted 25 Nov. 1981, G.A. Res. 36/55, 36 U.N. GAOR Supp. (No. 51) at 171, U.N. Doc. A/36/51 (1982), reprinted in RICHARD LILLICH, INTERNATIONAL HUMAN RIGHTS INSTRUMENTS 490.1 (1990).
53. U.N. Declaration on Minorities, supra note 9.
54. CSCE/OSCE texts need to be mentioned not only because of their consistent attention to minority rights but also because, today, the OSCE comprises almost a third of the states in the world covering a vast geographic area.
55. See, e.g., ICCPR, supra note 9, art. 2.
56. See, e.g., id. art. 26.
57. It should be remembered that the term "racial discrimination" as used in the convention also includes discrimination on an ethnic basis. CERD, supra note 36.
58. Capotorti, supra note 7, at 238.
59. Id.
60. Id. at 239.
61. Convention Against Discrimination in Education, supra note 35, art. 5, ¶ 1 (c).
62. Id. art. 2, ¶ b.
63. U.N. Declaration on Minorities, supra note 9, art. 2, ¶ 2.
64. Id. art. 2, ¶ 3.
65. Id. art. 5, ¶ 1. Pursuant to Article 5, paragraph 2, states are also obliged to plan and implement programs of international cooperation with "due regard" to the legitimate interests of persons belonging to minorities. Id. art. 5, ¶ 2.
66. Conference on Security and Cooperation in Europe: Final Act (Helsinki Accord), signed 1 Aug. 1975, 73 Dep't State Bull. 323 (1975), reprinted in 14 I.L.M. 1292 (1975).
67. Conference on Security and Cooperation in Europe: Final Act (Helsinki Accord), signed 1 Aug. 1975, 73 Dep't State Bull. 323 (1975), reprinted in 14 I.L.M. 1292 (1975).
68. Conference on Security and Co-operation in Europe: Document of the Copenhagen Meeting of the Conference on the Human Dimension, adopted 29 June 1990, ¶ ¶ 30-40, reprinted in 29 I.L.M. 1305 (1990) [hereinafter Document of the Copenhagen Meeting].
69. Conference on Security and Co-operation in Europe: Document of the Copenhagen Meeting of the Conference on the Human Dimension, adopted 29 June 1990, ¶ ¶ 30-40, reprinted in 29 I.L.M. 1305 (1990) [hereinafter Document of the Copenhagen Meeting].
70. See MERJA PENTIKAINEN, HUMAN RIGHTS COMMITMENTS WITHIN THE CSCE PROCESS: NATURE, CONTENTS AND APPLICATION IN FINLAND 24 (2d ed. 1994). A CSCE Meeting of Experts on National Minorities was convened in Geneva in 1991 pursuant to a decision taken at the CSCE Paris Summit held the previous year. Due to a changed political climate (influenced in no small measure by the conflict in the former Yugoslavia), the Report adopted in Geneva, when compared to the Copenhagen Document, failed to make advances.
71. Document of the Copenhagen Meeting, supra note 54, ¶ 31.
72. Id.
73. Id. ¶ 32.
74. Id. ¶ 34.
75. Id. ¶ 35.
76. Id.
77. The Framework Convention is disappointing when compared to the scope and specificity of the obligations laid down in the Copenhagen Document. Even the Parliamentary Assembly of the Council of Europe assessed the Framework Convention as "weakly worded" and "vague." See European Parliamentary Assembly, Recommendation 1255 on the Protection of the Rights of National Minorities, adopted 31 Jan. 1995, reprinted in 16 HUM. RTS. L.J. 113 (1995).
78. The Framework Convention is disappointing when compared to the scope and specificity of the obligations laid down in the Copenhagen Document. Even the Parliamentary Assembly of the Council of Europe assessed the Framework Convention as "weakly worded" and "vague." See European Parliamentary Assembly, Recommendation 1255 on the Protection of the Rights of National Minorities, adopted 31 Jan. 1995, reprinted in 16 HUM. RTS. L.J. 113 (1995).
79. In recent years, the Committee has frequently resorted to requesting emergency reports in situations of extremely serious human rights violations within a state party to the Covenant. This procedure was first used in the case of the former Yugoslavia. See Manfred Nowak, The Activities of the UN Human Rights Committee: Developments from 1 August 1992 to 31 July 1995, 16 HUM. RTS. L.J. 377 (1995).
80. Eighty-four out of 130 have acceded as of July 1995. Id. at 377-78.
81. Lovelace v. Canada, Comm. No. 24/1977, discussed in NOWAK, supra note 16, at 496.
82. See generally HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 347-455 (1996) (describing how the "1503 procedure," working groups, and special rapporteurs are used within the UN system).
83. Conference on Security and Co-operation in Europe: Concluding Document of the Vienna Meeting, adopted 15 Jan. 1989, reprinted in 10 HUM. RTS. L.J. 270 (1989).
84. Conference on Security and Co-operation in Europe: Concluding Document of the Vienna Meeting, adopted 15 Jan. 1989, reprinted in 10 HUM. RTS. L.J. 270 (1989).
85. Conference on Security and Co-operation in Europe: Document of the Moscow Meeting of the Conference on the Human Dimension, adopted 3 Oct. 1991, reprinted in 30 I.L.M. 1670 (1991).
86. Conference on Security and Co-operation in Europe: Document of the Moscow Meeting of the Conference on the Human Dimension, adopted 3 Oct. 1991, reprinted in 30 I.L.M. 1670 (1991).
87. See Jane Wright, The OSCE and the Protection of Minorities, 18 HUM. RTS. Q. 190, 198-200 (1996).
88. See Arie Bloed, The Human Dimension of the OSCE: More Words than Deeds?, 6 Helsinki Monitor No. 4, at 24 (1995).
89. The post of High Commissioner on National Minorities was established at the 1992 CSCE Helsinki Summit Meeting. Max van der Stoel, a former Dutch foreign minister was named High Commissioner in December 1992. See Conference on Security and Co-operation in Europe: Declaration and Decisions from Helsinki Summit, 31 I.L.M. 1395 (1992).
90. See Konrad Huber, The CSCE and Ethnic Conflict in the East, 2 RFE/RL Research Report No. 31, at 30 (1993).
91. See Max van der Stoel, The OSCE High Commissioner on National Minorities, 3 OSCE ODIHR Bulletin No. 3, at 40 (1995) extracted from ORGANIZATION FOR SECURITY AND CO-OPERATION IN EUROPE HIGH COMMISSIONER ON NATIONAL MINORITIES, THE ROLE OF THE HIGH COMMISSIONER ON NATIONAL MINORITIES IN OSCE CONFLICT PREVENTION (Rob Zaagman ed., June 1995).
92. See Max van der Stoel, The OSCE High Commissioner on National Minorities, 3 OSCE ODIHR Bulletin No. 3, at 40 (1995) extracted from ORGANIZATION FOR SECURITY AND CO-OPERATION IN EUROPE HIGH COMMISSIONER ON NATIONAL MINORITIES, THE ROLE OF THE HIGH COMMISSIONER ON NATIONAL MINORITIES IN OSCE CONFLICT PREVENTION (Rob Zaagman ed., June 1995).
93. Proposals to adopt an additional protocol to the European Convention on Human Rights dealing with the rights of minorities have been shelved. Instead, a protocol on human rights in the cultural field, which would also address the cultural rights of persons belonging to minorities, is under discussion. See Heinrich Klebes, Introduction, 16 HUM. RTS. L.J. 92, 97 (1995).