Recent developments in the UN Human Rights Committee's approach to minorities, with a focus on effective participation

International Journal on Minority and Group Rights

Volumn 12, Issue 1, 2005, Pages 25-41

  Verstichel, Annelies ^a  

^a UNIVERSITY OF LEUVEN   (Belgium)

Author keywords

[No Author keywords available]

Indexed keywords

ETHNIC MINORITY; HUMAN RIGHTS; UNITED NATIONS;

EID: 18944379657     PISSN: 13854879     EISSN: None     Source Type: Journal    
DOI: 10.1163/1571811053890362     Document Type: Article

References (68)

1. 1992 UN Declaration on Minorities: Article 2: "2. Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life. 3. 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. 4. Persons belonging to minorities have the right to establish and maintain their own associations." Article 4: "5. States should consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development in their country."
2. 1995 Coe Framework Convention for the Protection of National Minorities, Article 15: "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."
3. 1990 CSCE Copenhagen Document, paragraph 35: "The participating States will respect the right of persons belonging to national minorities to effective participation in public affairs, including participation in the affairs relating to the protection and promotion of the identity of such minorities. The participating States note the efforts undertaken to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities by establishing, as one of the possible means to achieve these aims, appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities and in accordance with the policies of the State concerned."
4. A. Spiliopoulou Åkermark, Justifications of Minority Protection in International Law (Kluwer Law International, The Hague, 1997) p. 131.
5. Most cases deal with the effective participation of minorities in public affairs, with the exception of Ilmari Länsman et al. v. Finland and Mahuika et al. v. New Zealand, which deal with the participation of indigenous people in the decision-making processes regarding (culturally significant) economic activities. One reason is the overall tendency in international minority protection mechanisms to neglect the effective participation of minorities in social, economic and cultural life and to focus on the effective participation of minorities in public affairs, especially in political life. See for example the opinions of the Advisory Committee of the Coe Framework Convention for the Protection of National Minorities (A. Verstichel, 'Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities', 2 European Yearbook of Minority Issues (2002/3) pp. 191-194), the documents of the UN Working Group on Minorities and the activities of the OSCE High Commissioner on National Minorities (para. 35 of the Copenhagen Document only mentions effective participation of minorities in public affairs). A second reason is that the ICCPR only provides for civil and political rights. However, the HRC can also deal with socio-economic and cultural matters through Article 26 - the general non-discrimination article - on the basis of established HRC jurisprudence (e.g., Zwaan-De Vries v. Netherlands, 9 April 1987, HRC, no. 182/1984, CCPR/C/29/D/182/ 1984). An example of a relevant case is Mümtaz Karakurt v. Austria (29 April 2002, HRC, no. 965/2000, CCPR/C/74/D/965/2000) in which a violation of Article 26 was found. A Turkish employee could not be elected to a work-council of a private company in Austria. The distinction on the basis of nationality (Austrian/EEA nationals and other nationals) was found not to be reasonable. The case is not discussed in this article, as the inclusion of the so-called "new minorities" in the definition of minorities is still controversial in international law. However, the evolving point of view in international organisations is to drop the citizenship requirement for the enjoyment of rights by minorities and to substitute it by other criteria (e.g. geographic concentration of minorities). Until Protocol 12 of the ECHR has entered into force, Article 26 ICCPR offers added value compared to the ECHR.
6. J.G.A. Diergaardt et al. v, Namibia, 25 July 2000, HRC, no. 760/1997, CCPR/C/69/D/760/1997, para. 10.3.
7. Mahuika et al. v. New Zealand, 27 October 2000, HRC, no. 547/ 1993, CCPR/C/70/D/547/1993, para. 9.2.
8. See Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada , 26 March 1990, HRC, no. 167/1984, CCPR/C/38/D/167/1984, and General Comment 23(50) on Article 27, para, 3.1.
9. Gillot v. France, 15 July 2002, HRC, no. 932/2000, CCPR/C /75/ D/932/2000, paras. 13.4 and 13.16.
10. J.G.A. Diergaardt et al. v. Namibia, supra note 6, Concurring Opinion.
11. See e.g., K. Henrard, Devising an Adequate System of Minority Protection. Individual Human Rights, Minority Rights and the Right to Self-Determination (Kluwer Law International, The Hague, 2000) p. 8.
12. The double track of minority protection was expounded first by the Permanent Court of International Justice in its Advisory Opinion regarding Minority Schools in Albania in 1935. This double track is also taken up by the United Nations, already during the first session (1947) of the UN Sub-Commission.
13. Neither it was in the travaux préparatoires, nor in the 1996 General Comment 57 on Article 25 CCPR (only a small reference to minority languages in para. 12: "Information and materials about voting should be available in minority languages.").
14. See e.g., Ch. Tomuschat, 'Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights', in Bernhardt, R. et al. (eds), Völkerrecht als Rechtsordnung: Internationale Gerichtsbarkeit - Menschenrechte - Festschrift für Hermann Mosler (Springer, Berlin, 1983) pp. 949-979.
15. The proposal E/CN.4/21, Annex A (Secretariat) of Article 46 (now 27): "In States inhabited by a substantial number of persons of a race, language or religion other than those of the majority of the population, persons belonging to such ethnic, linguistic or religious minorities shall have the right to establish and maintain, out of an equitable proportion of any public funds available for the purpose, their schools and cultural and religious institutions and to use their own language before the courts and other authorities and organs of the state and in the press and in public assembly."
16. This will not be elaborated upon this in this article, as the importance for the legal interpretation of Article 27 CCPR is marginal. Surely if nations do not object and, moreover, comply with the reporting requests, over time the Committee's interpretation will be accepted as a customary interpretation of the article. Some examples can be given. In 1992 the HRC asked the delegation of Peru what measures had been taken to ensure "effective participation by minority groups in the political process" and whether there was any representation in Congress. (A /47/40 (1992), para. 322). In 1993, the Croatian delegation reported that under the Law on Election to the Croatian Parliament a national minority comprising more than eight percent of the population of the Republic had to be proportionally represented in parliamentary, governmental and judicial bodies. In addition special autonomous status had been granted to "national and ethnic communities in those districts of Croatia where their members represented over 50 percent of the population". (A/48/40 (1993), para. 337) The Committee recognized the efforts made by the Croatian government but expressed at the same time its concern about the harassment of ethnic Serbs and also regarding the preamble of the Croatian Constitution, where it is stated that Croatia is "the national state of the Croat nation and a state of members of other nations and minorities" (A/48/40 (1993), paras. 357 and 360). In 2001, the Committee mentions again its concern with the legal framework and recommends that this should more full secure and articulate "the rights of members of ethnic, religious and linguistic minorities in national, regional and local representative and executive bodies, as well as their rights in social, cultural and economic fields of public and private life... as the starting point to enhance the practical enjoyment by members of minorities of their rights under the Covenant". (A/56/40 (Vol. II) (2001), para. 22)
17. The interpretation by the HRC that a particular way of life associated with the use of land resources, can be protected under Article 27 CCPR as an essential part of the enjoyment of an ethnic group's culture, goes back to the case Kitok v. Sweden, 27 July 1988, HRC, no. 197/ 1985, CCPR/C/33/D/197/1985. It appears to be an extension of the scope of this article (Article 27 seemingly lacking an economic dimension). However, according to Henrard, supra note 11, p. 161, this reading of Article 27 CCPR by the members of the HRC can also be related to the right to identity of minorities enshrined in Article 27 CCPR. A broad reading of the explicit rights in the article can, according to her, be said to be in line with the (broader) ratio legis of the article. Analogously, a certain political dimension of the right to identity of minorities could be included in Article 27 CCPR's sphere of application. This is, according to me, an interpretation on the edge of stretching the argument too far.
18. There has also been a communication based on Article 26 CCPR, to denounce a constitutional arrangement to ensure that all minorities are adequately represented in the legislature: Gobin v. Mauritius . The system foresaw eight additional seats for candidates who were not directly elected, but belonged to "the appropriate community" (Hindu, Muslim, Sino-Mauritian or general) so as to ensure an adequate representation of all ethnic and religious communities. The author, who had more votes than a candidate from the same constituency who received the seat because he belonged to a community which was not yet adequately represented, claimed that the constitutional provision was discriminatory, because the criteria on which the decision was taken were based on race and religion. The communication was found inadmissible, because it was submitted five years after the elections without reasonable explanation of this delay. Gobin v. Mauritius, 20 August 2001, HRC, Admissibility Decision, no. 787/1997, CCPR/C/72/D/787/1997.
19. The future will show whether one of the two evolutions mentioned earlier in the article, namely the importance of Article 1 for the interpretation of Articles 25, 26 and 27 CCPR, will become established case law.
20. Marshall et al. (the Miqmaq tribal society) v. Canada, 4 November 1991, HRC, no. 205/1986, CCPR/C/43/D/205/1986.
21. A.D. v. Canada, 29 July 1984, HRC, no. 78/1980, A/39/49 (1984), paras. 3 and 7.3. The communication was found inadmissible, because the author had not proven that he was properly authorized to act as a representative of the Miqmaq tribe and had also failed to prove that he was personally a victim of the alleged violation.
22. Lovelace v. Canada, 30 July 1981, HRC, no. 24/1977, A/36/40 (1981)
23. and Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada, supra note 8.
24. See Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada, supra note 8, and General Comment 23(50) on Article 27, para. 3.1. (At issue was the leasing of the Band's traditional territory without its consent.) The Declaration on the Rights of Indigenous People is still at a drafting stage, while the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities was adopted in 1992.
25. Miqmaq tribal society v. Canada, supra note 20, para. 5.5.
26. See e.g., G. Alfredsson and A. de Zayas, 'Minority Rights: Protection by the United Nations', 14 Human Rights Law Journal (1993) pp. 1-9.
27. B. Graefrath, 'Miqmaq-Entscheidung des Menschenrechtenausschusses', 4 Neue Justiz (1994) pp. 151-152.
28. Barsh, R.L., 'Indigenous People in the 1990s: From Object to Subject of International Law?', 7 Harvard Human Rights Journal (1994) p. 80, footnote 218.
29. Ignatane v. Latvia, 25 July 2001, HRC, no. 884/1999, CCPR /C/ 72/D/884/1999.
30. Ibid., para. 7.4.
31. Ibid., para. 7.2.
32. The applicant did not present herself as a person belonging to a minority. If she had done so, the HRC would have had an opportunity to express itself on the participatory rights of minorities.
33. The holding states: "The Committee concludes that Mrs. Ignatane has suffered specific injury in being prevented from standing for the local elections in the city of Riga in 1997, because of having been struck off the list of candidates on the basis of insufficient proficiency in the official language
34. (Ignatane v. Latvia, supra note 28, para. 7.5).
35. This decision (together with the pressure exercised by the OSCE organs) seems to have had an impact, as the Latvian parliament adopted two bills by which the requirement of Latvian language proficiency has been abolished for persons standing for elections at the national and municipal levels. (See statement on 10 May 2002 by the OSCE High Commissioner on National Minorities, Rolf Ekéus, in which he welcomes the adoption of the two bills, www.osce.org/news/ generate.php3?news_id=2449).
36. Podkolzina v. Latvia, 9 April 2002, ECHR, no. 46726/99, .
37. Ibid., para. 34.
38. Ibid., para. 36.
39. Ibid., para. 42.
40. Ibid., para. 41.
41. A recent exception is Nachova and others v. Bulgaria, 26 February 2004, ECHR, nos. 43577/98 and 43579/98, . The ECtHR found a violation of Articles 2 (right to life) and 14 (non-discrimination) in this case about two Roma, which were shot dead by the police after having escaped from detention.
42. J.G.A. Diergaardt et al. v. Namibia, supra note 6. The authors also alleged a violation of Article 27, on the ground that the confiscation by the state of all property collectively owned by the community, robbed the community of the basis of its economic livelihood, which in turn was the basis of its cultural, social and ethnic identity. According to the HRC, this did not constitute a violation of Article 27. I will not go into this, as it is not the topic of this article.
43. J.G.A. Diergaardt et al. v. Namibia, supra note 6, para. 3.2.
44. Ibid., para. 10.8.
45. This resounds M. Brems, Die politische Integration ethnischer Minderheiten (Peter Lang, Frankfurt am Main, 1995) p. 55: "Bis auf das Recht auf Selbstbestimmung gem. Art. 1 IPBPR enthält der Menschenrechtpakt ausschließlich Individualrechte. Das Recht auf politischen Partizipation einer Volksgruppe stellt jedoch ein Kollektivrecht dar. Somit ergeben sich aus den Art. 27 und 25 IPBRP keine völkerrechtlichen Pflichten für die Vertragsstaaten, den Minderheiten als Gruppe eine politische Partizipation in irgendeiner Form zu verschaffen."
46. J.G.A. Diergaardt et al. v. Namibia, supra note 6, para. 3.2.
47. On the internal dimension of the right to self-determination (as opposed to its external dimension, namely secession), see amongst others Brems, supra note 42, namely secession)
48. H. Hannum, Autonomy, Sovereignty and Self-determination: the Accommodation of Conflicting Rights (Philadelphia, University of Pennsylvania, 1996),
49. Henrard, supra note 11,
50. P. Thornberry, 'The Democratic or Internal Aspect of the Right to Self-Determination with some Remarks on Federalism', in Ch. Tomuschat (ed.), Modern Law of Self-Determination (Dordrecht, Martinus Nijhoff, 1993), pp. 101-138
51. and A. Rosas, 'Internal Self-Determination', in Ch. Tomuschat (ed.), Modern Law of Self-Determination (Dordrecht, Martinus Nijhoff, 1993), pp. 225-251.
52. See also CERD, General Recommendation XXI on the right to self-determination, (Forty-eight session, 1996), para. 4: "The right to self-determination of peoples has an internal aspect, that is to say, the rights of all peoples to pursue freely their economic, social and cultural development without outside interference. In that respect there exists a link with the right of every citizen to take part in the conduct of public affairs at any level, as referred to in article 5 (c) of the International Convention on the Elimination of All Forms of Racial Discrimination. In consequence, Governments are to represent the whole population without distinction as to race, colour, descent or national or ethnic origin."
53. Gillot v. France, supra note 9.
54. Ibid., para. 13.16.
55. Ilmari Länsman et al. v. Finland, 26 October 1994, HRC, no. 511/1992, CCPR/C/52/D/511/1992.
56. Ibid., para. 9.6.
57. Ibid., para. 9.5.
58. See also Jouni E. Länsman et al. v. Finland, 22 November 1996, HRC, no. 671/1995, CCPR/C/58/D/617/1995, para. 10.4.
59. Mahuika et al. v. New Zealand, supra note 7.
60. Moreover, they claimed a violation of Article 14(1) CCPR, because of the statutory discontinuation of the pending law suits, based on the settlement.
61. Mahuika et al. v. New Zealand, supra note 7, para. 9.5. In a later communication, Äärelä and Näkkäläjärvi v. Finland, the State Party, Finland, used this argument, namely that the affected persons, the Sami reindeer herders, were consulted in the development of the logging plans. Accordingly, the State Party argued that the interests of forestry and reindeer husbandry had been properly weighed. However, the HRC paid no attention to this argument.
62. Äärelä and Näkkäläjärvi v. Finland, 24 October 2001, HRC, no. 779/1997, CCPR/C/73/D/779 /1997, para. 4.6
63. Confirming its views in I. Länsman et al. v. Finland supra note 47, para. 9.3.
64. See the introduction of this article: the 1990 CSCE (now OSCE) Copenhagen Document on the Human Dimension, paragraph 35, the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Articles 2.2, 2.3, 2.4, 2.5 and 4.5 and the 1995 Council of Europe Framework Convention for the Protection of National Minorities in Articles 15 and 16.
65. In Jouni E. Länsman et al. v. Finland, supra note 49, the authors of the communication, Sami reindeer herders, challenged the State Party's (Finland) observation that there was effective participation in the negotiation process. Moreover, on 16 December 1995, the Sami Parliament discussed in general the experiences of Sami consultation in relation to logging plans by the State party forest authorities and adopted a resolution in which it notes that "the present consultation system between the Central Forestry Board and reindeer management does not function in a satisfactory way ...". ( Ibid., para. 7.8). (Ibid., para. 10.5)
66. I. Länsman et al. v. Finland, supra note 47, para. 9.8.
67. and Mahuika et al. v. New Zealand supra note 7, para. 9.9
68. This test is also applied in Äärelä and Näkkäläjärvi v. Finland, supra note 52, para. 7.5.