Introduction

The United Nations Convention on the Rights of the Child (‘CRC’) is a very rich human rights treaty. It covers most of the traditional civil and political rights and economic, social and cultural rights tailored to the child as a person with evolving capacities and with full respect for the responsibilities, rights and duties of parents. In addition, the CRC contains various provisions for the protection of children from all forms of violence and abuse (Article 19), economic exploitation, (commercial) sexual exploitation, abduction, and sale or traffic (Article 32–39). Other articles provide for the protection of refugee children (Article 22) and of children with disabilities (Article 23).

The CRC is applicable to every human being below the age of eighteen years in the 193 states that ratified this Convention. They have committed themselves to respect and ensure the rights set forth in the CRC to each child within their jurisdiction without discrimination of any kind (Article 2). This means that children belonging to minorities have the right to the full enjoyment of the rights enshrined in the CRC. The CRC is not a minority-specific human rights instrument but it does contain some unique references to minority groups, in particular to indigenous children.

In this chapter, I shall present and discuss the monitoring activities of the CRC Committee charged with the task of examining the progress made by states parties in achieving the realisation of their obligations under the CRC, including the difficulties they are facing in this regard (Articles 43 and 44).

Introduction

The International Covenant on Civil and Political Rights (‘ICCPR’) is the only human rights treaty that has universal coverage both geographically and in respect of its personal scope, and that includes a specific provision on the rights of minorities, or to be more exact, on the rights of members of minorities. Here the Covenant differs also from the Universal Declaration of Human Rights, which does not include a clause on minorities. This can be explained by its emphasis on the universality of human rights but also with reference to the partly negative experiences of the minority protection arrangements under the League of Nations.

The closest counterpart to the minority rights clause in Article 27 of the ICCPR in other human rights treaties is Article 30 in the Convention on the Rights of the Child, which closely follows the wording of the ICCPR provision but which focuses upon children. While Article 27 ICCPR does not explicitly address the situation of indigenous peoples, the text of Article 30 CRC does. It should also be acknowledged that Article 27 has served as a source of inspiration for the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities.

Textually, ICCPR Article 27 is a rather modest provision in that it primarily addresses the negative obligation of states not to deny members of minorities the right to enjoy their culture, to profess and practice their religion or to use their own language:

Introduction

In line with the theme of a book concerning synergies in minority protection, this chapter sets out to analyse the strands of the European Court of Human Rights jurisprudence which might enable the identification of synergies with developments under other instruments. In the first part of the chapter, the jurisprudential developments in relation to the synergy topics identified elsewhere will be evaluated, more specifically an increasing attention to the principle of substantive equality (in relation to minorities), to the participatory rights of members of minorities, as well as to the need for minority language rights and educational rights, while exhibiting extra attention to the particularly vulnerable position of the Roma (Gypsies).

The second part of the chapter will then go on to discuss case law relevant to the broad underlying theme of the above-mentioned synergies, namely special attention for the minority phenomenon and the specific (protection) needs of persons belonging to minorities, including in terms of general (not minority-specific) human rights.

In the pre-1995 case law of the supervisory organs of the ECHR, little or no attention was paid to the special needs of minorities. While the Court seems increasingly aware of the especially vulnerable position of minorities, and adopts important theoretical approaches with considerable potential for minority protection, the actual protection flowing from the case law is far from consistently positive.

Introduction

Created in 1995 under the auspices of the Sub-Commission on the Promotion and Protection of Human Rights (‘Sub-Commission’), the Working Group on Minorities (‘WGM’) has the unique global mandate of promoting and protecting the rights of minorities. Its primary normative framework is the non-binding Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (‘Declaration’), adopted by the General Assembly in 1992. While designed to facilitate a ‘more comprehensive handling’ of the Sub-Commission's mandate in protecting minorities, the WGM appreciates that progressive interpretations of non-discrimination clauses or minority-sensitive readings of human rights provide significant minority protection.

As part of the broader UN human rights system, the WGM is cognisant of how the work of other human rights bodies, like the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) Committee, buttresses minority protection. It has urged states to make the Article 14 ICERD declaration, allowing individuals and groups to raise communications with the ICERD Committee. The Article 27 International Covenant on Civil and Political Rights (‘ICCPR’) jurisprudence is particularly relevant, as are socio-economic rights like the right to culture in the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’). The WGM has urged governments to ratify these and other human rights treaties and recommended that the High Commissioner of Human Rights' (‘HCHR’) office continues to train minority representatives in how to utilise general human rights procedures; international financial institutions are encouraged to supply training on minority issues in relation to Millennium Development Goals (‘MDGs’) related programmes.

Introduction

The issue of minorities in Africa remains controversial and problematic. The notion of who constitutes a minority in countries that were arbitrarily constructed as a result of the colonial imperatives of former European empires remains contested. This historical context does not negate the existing challenge of ensuring minority protection on the continent. This chapter will briefly discuss the signing of the African Charter on Human and Peoples' Rights. It will outline some of the provisions contained in the Charter, particularly with reference to peoples. Even though the African Charter is non-minority-specific in the sense that it refers to ‘peoples’, this chapter will argue that there are provisions within the Charter that are relevant to minorities. It will then assess the creation of the African Commission on Human and Peoples' Rights, as a supervisory mechanism to implement and monitor the legal provisions of the Charter and its practice. The chapter will evaluate the recent developments in the practice of the African Commission by examining the case of the Ogoni people in Nigeria and the Katanga region of former Zaire (present day Democratic Republic of the Congo). An assessment of the potential synergy between the African Charter and other international minority protection instruments will be discussed throughout the chapter. The creation of the African Court as an institution that will complement the supervisory role of the Commission with a protective mandate will be highlighted.

Introduction

The European Charter for Regional or Minority Languages (the ‘Charter’) is a Council of Europe treaty that was opened for signature on 5 November 1992, and which came into force on 1 March 1998. Twenty-three states have ratified the Charter and a further eleven have signed it.

Strictly speaking, the Charter is not a minority-specific instrument at all, and its origins and purpose differ in important respects from the Council of Europe's Framework Convention for the Protection of National Minorities (the ‘Framework Convention’) and other minority-specific provisions. Strictly speaking, it is not a human rights instrument either; as we shall see, the text of the Charter does not create any individual or collective rights for speakers of regional or minority languages, a point made clear in the Charter's Explanatory Report. Rather, as its title suggests, the Charter focuses on languages themselves, and the consequences of this are important, and will also be considered further, below. However, it is also important to note that the formal position just described tells only part of the story. Languages are spoken by people, and any attempt to protect a language will have implications for those who speak it, a point that is acknowledged in the Explanatory Report. As we shall see, the provisions of the Charter are of considerable importance for members of certain minorities, and the implementation of the Charter may in some cases imply the creation of a legislative framework and even of certain rights.

Introduction

Since the beginning of the 1990s, the institution of the OSCE High Commissioner on National Minorities (the ‘High Commissioner’) has acquired a considerable prestige in the area of conflict prevention. Even though the High Commissioner is primarily, or even exclusively, aiming at the prevention of conflicts relating to national minority issues, it is obvious that a major tool for the High Commissioner to achieve his aims is monitoring and promoting a proper implementation of minority rights. Nevertheless, the security-oriented perspective of the High Commissioner cannot be overlooked, as it implies that he is – according to his mandate at least – only active in minority situations where serious tensions exists. It also implies that, as a conflict prevention instrument, the High Commissioner only considers a limited number of minority problems, whereas other minority problems which ‘don't have the potential to develop into a conflict’ fall outside the scope of his mandate.

The purpose of this chapter is to consider how far the High Commissioner has contributed over the years to a further strengthening and development of minority rights standards. Did the activities of the High Commissioner indeed lead to the development of new standards, or did they contribute to a further elaboration or clarification of existing standards? In another study, the first author of this chapter has explored the High Commissioner's role in relation to citizenship issues and concluded that the High Commissioner in the 1990s indeed contributed considerably to developing certain criteria which he used to monitor developments within specific countries.

Introduction

The United Nations Educational, Scientific and Cultural Organisation (‘UNESCO’) is well known for its activities that promote the right to education, the freedom of expression and the cultural rights of individuals and groups. Member states of UNESCO have also adopted Conventions and recommendations that aim at the promotion and protection of the human rights that fall within the organisation's mandate. One of these Conventions deals with the right to education. The Convention Against Discrimination in Education (‘CADE’) was adopted in 1960. It is rather obscure, owing to its relatively small number of states parties, its weak supervisory system and the difficulty of getting access to Convention documents. According to its preamble, the main purpose of the Convention is to proscribe any form of discrimination in education and to promote equality of opportunity and treatment for all in education. In addition to provisions that lay down in detail general obligations of states parties to realise the purposes of the treaty, the Convention recognises the right of members of national minorities to carry on their own educational activities. After discussing the features of the Convention and its monitoring procedure, this chapter will analyse the meaning of the minority rights provision and ask whether that provision has been given substance by the Committee on Conventions and Recommendations. This is the body that monitors implementation of the Convention's provisions by UNESCO member states.

During the last fifteen to twenty years, several new instruments and monitoring and dialogue institutions and procedures have been added to the international minority protection regime. It now amounts to more than fifty instruments and some dozen monitoring and dialogue institutions with minority-specific provisions. In addition, members of minorities are entitled to the equal enjoyment of all human rights and equal access to all implementation and monitoring procedures designed for human rights in general. Indeed, there has been a steady increase in the application of general human rights instruments for the protection of members of minority groups, and an increasing sensitivity to the needs of such persons. Hence, the reference to a minority protection regime rather than merely minority rights is most appropriate.

The expansion of the minority protection regime has occurred relatively quickly, but it has been uneven and unorganised, with a variety of motivations behind the steps taken and with the involvement of several international organisations. Imposing minority rights on third states is distinctly easier than committing to them internally. Double standards appear in the foreign policies of states and these may also impact on international responses. Much of the recent attention has been security-oriented, with a focus on the prevention of violent conflict in the short term, but the interest of states in minority rights tends to drop as soon as the threat of serious violence recedes, even when discriminatory patterns and practices persist.

Introduction

Raphael Lemkin first proposed the term ‘genocide’ in his seminal 1944 study on Nazi occupation policies. Lemkin's interest in the subject dated to his days as a student at Lvov University, when he intently followed attempts to prosecute the perpetrators of the massacres of the Armenians. Lemkin created the term ‘genocide’ from two words, genos, which means race, nation or tribe in ancient Greek, and caedere, meaning to kill in Latin. Lemkin suggested the following definition:

Lemkin called for the development of ‘provisions protecting minority groups from oppression because of their nationhood, religion, or race’. Noting that ‘genocide’ referred to the destruction of a nation or of an ethnic group, he described it as ‘an old practice in its modern development’.

Introduction

‘Synergy’ is a word which conveys a range of meanings, and the particular ways in which it is understood for the purposes of this collection will be explored in this introduction. In our view, the notion of ‘synergy’ is particularly relevant to the protection of minorities in international law, owing to the diversity of relevant instruments and international institutions, and we shall therefore precede our discussion of the notion of ‘synergy’ with a broad summary of the most important developments in relation to minority protection, both at a global and at a regional level. We shall conclude with a consideration of the limits of the synergies explored in this collection, and with a speculation, informed by the contributions to this collection, on the future prospects for synergies in minority protection.

Broad developments in relation to minority protection at global and regional level

The broad history of the development of protection for minorities in international law is generally well known. So, too, are the limitations of the various mechanisms for minority protection which have existed at each stage in this development. Prior to the First World War, such protection as existed in international law was generally ad hoc, based primarily on bilateral treaties in response to particular conflicts or potential conflicts involving kin-groups or co-religionists. It was also usually limited in scope, and included only limitations on discrimination, a right to respect for freedom of religion, and, in some cases, a limited right to freedom of expression – or at least a freedom to use a minority language without restriction in private life.

Introduction

The United Nations International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’) was adopted by the General Assembly of the United Nations on 21 December 1965, and entered into force on 4 January 1969. As of 21 April 2008, the ICERD has been ratified or acceded to by 173 states. The ICERD is the only international instrument specifically directed at racial discrimination. It is a comprehensive and legally binding instrument, and has procedures for implementation; indeed, the ICERD was the first United Nations human rights treaty which provided for a monitoring mechanism, namely, the Committee on the Elimination of Racial Discrimination (‘CERD/C’). The ICERD is based on the principles of equality and non-discrimination, which are set out clearly in the Charter of the United Nations.

In this chapter, the ICERD and the work of the CERD/C will be examined with a view to identifying their relevance to the protection of minorities, and to identifying any synergies, whether substantive or procedural, with other instruments and in the work of other relevant treaty bodies and international organisations.

Scope of application of ICERD: the concept of racial discrimination

The concept of ‘racial discrimination’ is central to the operation of the ICERD. ‘Racial discrimination’ is defined broadly in Article 1(1) as follows:

Introduction

Asia-Pacific is among the most diverse regions of the world. In Papua New Guinea, the population of 4 million use some 700 languages, and some countries officially recognise more than fifty minority groups within their territory, including in the People's Republic of China and Vietnam. Successful practices in the region exist with measures at the national and sub-national levels to protect human rights, including minority rights, of persons belonging to minorities. That policies on minority issues have affected social and political stability is noted in several regions in Indonesia (West Papua, West and Central Kalimantan, Sulawesi and the Malukas), in Myanmar (especially involving the Karen and Shan minorities), in the Mindanao region in the Philippines, and by flows to Cambodia of persons belonging to indigenous groups from the Central Highlands of Vietnam. Other examples include social unrest in the south of Thailand, ethnic tensions in Fiji and the Solomon Islands, and situations in the People's Republic of China (e.g. the Uighurs in Xinjiang). The associated challenges of integrating diversity in states in the Asia-Pacific have to date not resulted in effective sub-regional instruments and institutions tasked to multilaterally address, monitor and assist on minority issues; there are no regional human rights or conflict-prevention mechanisms similar to those established in Africa, the Americas and Europe. However, while less prone to liberal institutionalism, there are indications of emerging sub-regional normative and procedural frameworks in the Asia-Pacific.

Introduction

In contrast with the International Covenant on Civil and Political Rights (the ‘ICCPR’) discussed in Chapter 2, its twin, the International Covenant on Economic, Social and Cultural Rights (the ‘ICESCR’ or simply ‘the Covenant’) contains no explicit reference to minorities. This is surprising, given that the concern of the ICESCR with cultural protection would more immediately bring minority protection concerns to mind. In the absence of an explicit reference to minorities, the initial question arises of whether the ICESCR is relevant to minority protection and what kind of protection the ICESCR grants.

Persons belonging to minorities and minority groups would appear to be, by their very nature, likely victims of the violations of the rights which the ICESCR enshrines. The importance of the inclusion of the minority concept under the Covenant would further reside in the fact that especially economic and social aspects of minority protection remain the least developed, both conceptually and in practice. Hence, from a human rights perspective, these are the aspects which demand a higher degree of attention and reference points as to their interpretation.

From the perspective of cultural protection, aspects of human rights protection which normally feature in international minority protection standards, such as the protection of language and educational rights and of national, ethnic, religious and linguistic identity are sometimes comprised in definitions of culture. However, even the term ‘culture’ is not clear-cut, but has been attributed a variety of meanings.