The OSCE HCNM and the FCNM in the context of other approaches towards minorities
and indigenous peoples.
Anna Meijknecht ([email protected])Anna Meijknecht ([email protected])Tilburg University, The NetherlandsTilburg University, The Netherlands
16 June 2010, Galway16 June 2010, Galway
Outline
OSCE OSCE HCNMHCNM STRUGGLESTRUGGLE PARADOXPARADOX APPROACHES ---- Extra: COEAPPROACHES ---- Extra: COE EFFECTEFFECT
The OSCE High Commissioner on
National Minorities (HCNM)
http://http://www.osce.org/hcnmwww.osce.org/hcnm
OSCE Area
56 Participating States56 Participating States Comprehensive and cooperative approach:Comprehensive and cooperative approach:
* three dimensions of security → political/military; * three dimensions of security → political/military; economic/environmental; human dimensioneconomic/environmental; human dimension
all 56 States enjoy equal status → decisions are taken all 56 States enjoy equal status → decisions are taken by consensus on a politically, not legally binding by consensus on a politically, not legally binding basisbasis
OSCE Documents
Helsinki Final Act (1975)Helsinki Final Act (1975) Madrid Concluding Document (1983)Madrid Concluding Document (1983) Vienna Concluding Document (1989)Vienna Concluding Document (1989) Copenhagen DocumentCopenhagen Document (1990) (1990) Charter of Paris for a new Europe (1990) Charter of Paris for a new Europe (1990) Moscow Document (1991)Moscow Document (1991) Geneva Expert MeetingGeneva Expert Meeting on National Minorities on National Minorities
(1991)(1991) Helsinki DocumentHelsinki Document ‘ ‘Challenges of ChangeChallenges of Change’’
(1992)(1992)
High Commissioner on National Minorities
Mandate
To provide ‘To provide ‘early warningearly warning’ and, as appropriate, ’ and, as appropriate, ‘‘early actionearly action’ at the earliest possible stage in ’ at the earliest possible stage in regard to tensions involving national minority regard to tensions involving national minority issues which have not yet developed beyond an issues which have not yet developed beyond an early warning stage, but, in the judgment of the early warning stage, but, in the judgment of the HCNM, have the potential to develop into a HCNM, have the potential to develop into a conflict within the OSCE areaconflict within the OSCE area
Early warning: two functions
1) To try to 1) To try to contain and de-escalatecontain and de-escalate tensions;tensions;
2) Alerting the OSCE Permanent Council 2) Alerting the OSCE Permanent Council whenever such tensions threaten to develop whenever such tensions threaten to develop to a level at which he cannot contain them to a level at which he cannot contain them with the means at his disposalwith the means at his disposal
Characteristics
Independence and ImpartialityIndependence and Impartiality ConfidentialityConfidentiality Cooperative attitudeCooperative attitude Non-confrontationalNon-confrontational
Working Methods
Country visitsCountry visits Initiating and maintaining dialogueInitiating and maintaining dialogue Project workProject work Recommendations:Recommendations: - country specific - country specific - general- general
HCNM Guidelines also main themes of HCNM involvementalso main themes of HCNM involvement)) Hague Recommendations regarding Hague Recommendations regarding EducationalEducational Rights of National Rights of National
Minorities (1996)Minorities (1996) Oslo Recommendations on the Oslo Recommendations on the LinguisticLinguistic Rights of National Rights of National
Minorities (1998)Minorities (1998) Lund Recommendations on the Lund Recommendations on the Effective ParticipationEffective Participation of National of National
Minorities in Public Life (1999)Minorities in Public Life (1999) Guidelines on the Use of Minority Languages in the Guidelines on the Use of Minority Languages in the Broadcast MediaBroadcast Media
(2003)(2003) Recommendations on Recommendations on PolicingPolicing in Multi-Ethnic Societies (2006) in Multi-Ethnic Societies (2006) BolzanoBolzano/Bozen/Bozen Recommendations on National Minorities Recommendations on National Minorities in in InterInter
-State Relations-State Relations (2008) (2008)
Limitations mandate
HCNM will not consider national minority issues HCNM will not consider national minority issues in the State of which he is a national or involving in the State of which he is a national or involving a national minority to which he belongs; only if all a national minority to which he belongs; only if all parties agree;parties agree;
HCNM will not consider situations involving HCNM will not consider situations involving organized acts of terrorism;organized acts of terrorism;
HCNM will not consider individual cases.HCNM will not consider individual cases.
Future for the OSCE / HCNM?
Influence EU accession / Copenhagen Influence EU accession / Copenhagen CriteriaCriteria
More attention to racism, xenophobia and More attention to racism, xenophobia and anti-Semitism? anti-Semitism?
Attention for issues of ‘new’ minorities?Attention for issues of ‘new’ minorities? Cooperation!!Cooperation!!
CONCLUSION?CONCLUSION?
THE STRUGGLE OF STATES WITH MINORITIES AND IP
WHO/WHAT?WHO/WHAT?
WHY?WHY?
HOW? - approachesHOW? - approaches
WHO? - paradox - processWHO? - paradox - process
RESULT? RESULT?
HOW? Diff. Approaches Assimilation Assimilation IntegrationIntegration
Paradox of minority protectionParadox of minority protection Internationalization (LoN ect. )Internationalization (LoN ect. ) - process of minority protection- process of minority protection International standardsetting (how?)International standardsetting (how?) Granting Rights (what kind?)Granting Rights (what kind?) Protection of language or culture Protection of language or culture
Paradox of minority protection
Sovereign states, who themselves Sovereign states, who themselves pose the greatest danger to pose the greatest danger to minorities and indigenous minorities and indigenous peoples, are entrusted with their peoples, are entrusted with their protectionprotection
InternationalizationInternationalization
PROCESS OF MINORITY PROTECTION
1) (LoN, VN, CoE, EU, OSCE, OAS, ASEAN etc.)1) (LoN, VN, CoE, EU, OSCE, OAS, ASEAN etc.) Development of standardsDevelopment of standards
Adoption of documentAdoption of document RatificationRatification 2) (States)2) (States)
Implementation:Implementation: ConstitutionConstitution
National legislationNational legislation Policy measuresPolicy measures
RegionalRegional LocalLocal
3) Community 3) Community Minority (individuals): Minority (individuals): ““realityreality””
DIFFERENT APPROACHES
UN : individualUN : individual HRC : indivdual +HRC : indivdual + UNESCO: DiversityUNESCO: Diversity HCNM: preventionHCNM: prevention COE: Margin of appreciationCOE: Margin of appreciation INDIGENOUS PEOPLES: collectiveINDIGENOUS PEOPLES: collective
UNITED NATIONS
UN renounced the notion of group rights UN renounced the notion of group rights and group identity. and group identity.
No reference to minorities in UDHRNo reference to minorities in UDHR Instead: human rightsInstead: human rights Article 27 ICCPRArticle 27 ICCPR Other relevant UN Conventions?Other relevant UN Conventions?
Human Rights Committee
HRC monitors the implementation of the ICCPR:HRC monitors the implementation of the ICCPR: State reports (art. 40 ICCPR)State reports (art. 40 ICCPR) Inter-State complaints procedure (art. 41 ICCPR)Inter-State complaints procedure (art. 41 ICCPR) Optional Protocol Optional Protocol to the ICCPR established the to the ICCPR established the
individual complaints procedureindividual complaints procedure General Comments (e.g. No. 23)General Comments (e.g. No. 23)
Article 27ICCPR In those states in which ethnic, religious, or In those states in which ethnic, religious, or
linguistic minorities exist, persons linguistic minorities exist, persons belonging to such minorities shall not be belonging to such minorities shall not be denied the right, in community with the denied the right, in community with the other members of the group, to enjoy their other members of the group, to enjoy their own culture, to profess and practice their own culture, to profess and practice their own religion, or to use their own language. own religion, or to use their own language.
UNESCO
Cultural DiversityCultural DiversityHeritageHeritageLanguage. Language.
httphttp://://wwwwww..unescounesco..orgorg/culture//culture/ichich/index./index.phpphp??pgpg=00206=00206
The OSCE The OSCE
High Commissioner on High Commissioner on National Minorities (HCNM)National Minorities (HCNM)
The Council of Europe and Minority Rights
The ECHR - Art. 14The ECHR - Art. 14 The European Charter for Regional or The European Charter for Regional or
Minority LanguagesMinority Languages (in force 1998) (in force 1998)
The Framework Convention for the The Framework Convention for the Protection of National MinoritiesProtection of National Minorities(in force 1998)(in force 1998)
Minority Case Law ECHR
ArticlesArticles Linguistic minoritiesLinguistic minorities Religious MinoritiesReligious Minorities RomaRoma Significance?Significance?
The European Charter for Regional or Minority Languages
Purpose: culturalPurpose: cultural DefinitionsDefinitions Scope: traditionally used within a state’s Scope: traditionally used within a state’s
territory. No dialects or languages of territory. No dialects or languages of migrantsmigrants
A la carte commitmentsA la carte commitments Reporting systemReporting system
Framework Conventionfor the protection of National Minorities
http://www.http://www.coecoe..intint/t//t/dghldghl/monitoring/minorities/1_/monitoring/minorities/1_AtGlanceAtGlance/PDF_/PDF_MapMinoritiesMapMinorities__bilbil..pdfpdf
Why?: “essential to stability, democratic Why?: “essential to stability, democratic security and peace in this continent’’.security and peace in this continent’’.
Ratifications: also non-COE members!Ratifications: also non-COE members!
Specific features of the framework convention
Relation to Human Rights (Case-law ECHR)Relation to Human Rights (Case-law ECHR) No definitionNo definition No collective rightsNo collective rights Difference FC-Convention Difference FC-Convention Programme-type provisionsProgramme-type provisions Not directly applicableNot directly applicable Margin of appreciation (art. 14) Margin of appreciation (art. 14)
Framework Convention a Mockery?
Arguments pro / contra FCArguments pro / contra FC Success or failure FC depends on Success or failure FC depends on
its supervision / monitoring its supervision / monitoring mechanismmechanism
DIFFERENT APPROACHES
UN : individualUN : individual HRC : indivdual +HRC : indivdual + UNESCO: DiversityUNESCO: Diversity HCNM: preventionHCNM: prevention COE: Margin of appreciationCOE: Margin of appreciation INDIGENOUS PEOPLES: collectiveINDIGENOUS PEOPLES: collective
WHAT ABOUT INDIGENOUS PEOPLES?
Approach: Treaties with Indigenous PeoplesTreaties with Indigenous Peoples
history, terra nullius, colonization, treatieshistory, terra nullius, colonization, treaties Treaties on Indigenous PeoplesTreaties on Indigenous Peoples
definitions, international documentsdefinitions, international documents Cooperation with Indigenous PeoplesCooperation with Indigenous Peoples
instruments and forainstruments and fora
Thus: A COME BACKThus: A COME BACK
Representative of the International Treaty Council: ‘‘Within our Indigenous Nations, the collective Within our Indigenous Nations, the collective
good of the peoples is paramount over the rights good of the peoples is paramount over the rights of the individual. That is not to say that the rights of the individual. That is not to say that the rights of the individual are not respected. On the of the individual are not respected. On the contrary, the rights of the individual are contrary, the rights of the individual are respected as long as they do not take away from respected as long as they do not take away from the collective good of the People. This premise is the collective good of the People. This premise is the very key to the survival of not only our the very key to the survival of not only our Peoples, but the survival of the planet as a whole. Peoples, but the survival of the planet as a whole. The huge problems in this world with the The huge problems in this world with the environment are caused in most part by environment are caused in most part by individuals who are not respecting the right to individuals who are not respecting the right to life of peoples as a whole.’life of peoples as a whole.’
Relevant Documents
Article 27 ICCPRArticle 27 ICCPR ILO Conv. (107) 169: Convention ILO Conv. (107) 169: Convention
ConConccerning Indigeerning Indigennous and ous and Tribal Peoples in IndTribal Peoples in Indeependent pendent CountriesCountries
http://www.http://www.unhchrunhchr..chch/html/menu3/b/62./html/menu3/b/62.htmhtm UN Declaration on the Rights of UN Declaration on the Rights of
Indigenous Peoples 2007Indigenous Peoples 2007 http://www.un.org/http://www.un.org/esaesa//socdevsocdev//unpfiiunpfii/en/drip.html/en/drip.html
III. Cooperation with Indigenous Peoples UNDRIPUNDRIP UN Special Rapporteur on the UN Special Rapporteur on the
Situation of Human Rights and Situation of Human Rights and Fundamental Freedoms of Fundamental Freedoms of Indigenous PeopleIndigenous People
UN Permanent Forum on UN Permanent Forum on Indigenous IssuesIndigenous Issues
EFFECT?EFFECT?
PROCESS OF MINORITY PROTECTION
1) (LoN, VN, CoE, EU, OSCE, OAS, ASEAN etc.)1) (LoN, VN, CoE, EU, OSCE, OAS, ASEAN etc.) Development of standardsDevelopment of standards
Adoption of documentAdoption of document RatificationRatification 2) (States)2) (States)
Implementation:Implementation: ConstitutionConstitution
National legislationNational legislation Policy measuresPolicy measures
RegionalRegional LocalLocal
3) reality3) reality Community (Ind. Peoples)Community (Ind. Peoples)
Minority (individuals) Minority (individuals)
Effect? ASSESSMENT? ANY PROBLEMS? ASSESSMENT? ANY PROBLEMS?
League of Nations - historyLeague of Nations - history UN- HRC? - pressureUN- HRC? - pressure OSCE? – unknown….OSCE? – unknown…. COE- FCNM? – definitionCOE- FCNM? – definition EU? - ?? Roma??EU? - ?? Roma?? UNESCO? – nice work, sophisticated, diversityUNESCO? – nice work, sophisticated, diversity ASEAN? - non-interference, diversityASEAN? - non-interference, diversity INDIGENOUS PEOPLES – UNPFII, IACHR – INDIGENOUS PEOPLES – UNPFII, IACHR –
implementationimplementation Vote?Vote?
SOLUTION?
UN Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People
Professor Rodolfo Stavenhagen (Mexico) 2001-Professor Rodolfo Stavenhagen (Mexico) 2001-2008. Now: James Anaya (USA) 2008. Now: James Anaya (USA)
http://http://airtrustairtrust..wordpresswordpress.com/.com/dvddvd// (chapter 6) (chapter 6) MandateMandate The Special Rapporteur's mandate is:The Special Rapporteur's mandate is: · To gather information and communications from all relevant · To gather information and communications from all relevant
sources – including governments, indigenous peoples and their sources – including governments, indigenous peoples and their communities and organisations – on violations of human rights communities and organisations – on violations of human rights and fundamental freedoms of indigenous peoples.and fundamental freedoms of indigenous peoples.
· To formulate recommendations and proposals on measures · To formulate recommendations and proposals on measures and activities to prevent and remedy violations of the basic and activities to prevent and remedy violations of the basic human rights and fundamental freedoms of indigenous peoples.human rights and fundamental freedoms of indigenous peoples.
· To work in close contact with other special rapporteurs, · To work in close contact with other special rapporteurs, special representatives, working groups and independent special representatives, working groups and independent experts experts
To investigate specific human rights complaints. To investigate specific human rights complaints.
Conclusions?
Struggle solved?Struggle solved? FOR STATES: YES…no….FOR STATES: YES…no…. FOR MINORITIES/ INDIGENOUS FOR MINORITIES/ INDIGENOUS
PEOPLES? PEOPLES? 3 STAGES….why, who, how.. (answers 3 STAGES….why, who, how.. (answers
known?)known?) KEYWORDS FOR NEXT STAGE ?KEYWORDS FOR NEXT STAGE ?
The European The European Union and Union and
Minority RightsMinority Rights
EU approach?
(Stick and) Carrot?(Stick and) Carrot? Double standards?Double standards?
External policy: Accession
Copenhagen 1993 Copenhagen 1993 Agenda 2000+Annual ReportsAgenda 2000+Annual Reports Association AgreementsAssociation Agreements
Internal EU policy:
Article 6 par. 2 TEU Article 6 par. 2 TEU Article 12 and 13 TECArticle 12 and 13 TEC Race-equality Directive 2000/43/EC and Race-equality Directive 2000/43/EC and
employment Directive 2000/78/ECemployment Directive 2000/78/EC Article 151 TECArticle 151 TEC Artt. 21 and 22 European Charter of Artt. 21 and 22 European Charter of
Fundamental Rights (diversity)Fundamental Rights (diversity)
Article 1-a Lissabon Treaty
The Union is founded on the values of respect for The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the human dignity, freedom, democracy, equality, the rule of law, respect for human rights, rule of law, respect for human rights, including including the rights of persons beloning to national the rights of persons beloning to national minorities.minorities. These values are common to the These values are common to the Member States in a society in which pluralism, Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. and equality between women and men prevail.
Conclusion
EU: refers to standards as developed by EU: refers to standards as developed by other international organizations: Council other international organizations: Council of Europe and OSCE of Europe and OSCE
EU: no instrument on minority protection at EU: no instrument on minority protection at community level: only indirectly: non-community level: only indirectly: non-discriminationdiscrimination
Both pre-accession and post-accession Both pre-accession and post-accession monitoring is requiredmonitoring is required
