INTERNATIONAL PROTECTION OF MINORITIES: PAST AND PRESENTINTERNATIONAL PROTECTION OF MINORITIES: PAST AND PRESENT

Julie Ringelheim

15 June 2013

Julie Ringelheim

15 June 2013

OUTLINEI. General Overview of Minority Protection in

International Law

II. Specific Regimes of Minority Protection : OSCE, UN, EU

GENERAL OVERVIEW

1. Definition of Minority2. Evolution of Minority Protection in

International Law3. Security Approach v. Rights Approach4. The Content of Minority Rights

1. DEFINITION OF MINORITY

No binding definition of the minority concept in international law

« I know a minority when I see one » (Max van Der Stoel, first OSCE HCNM).

But : generally agreed that a minority required a combination of subjective and objective elements.

1. DEFINITION OF MINORITY

2 types of Elements:• Objective

National, ethnic, cultural, religious and linguistic characteristics different from the rest of the population

Minority position (numerical)• Subjective

• Will the preserve the group identity.

FR. CAPOTORTI, SPECIAL RAPPORTEUR

« A group, numerically inferior to the rest of the population of a State, in a non-dominant position, whose members - being nationals of the State - possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture. »Study on the Rights of Persons belonging to Ethnic,

Religious and Linguistic Minorities, 1977, UN Sub Commission on the Prevention of Discrimination and Protection of Minorities.

1. DEFINITION OF MINORITY

Contested aspects: Citizenship (what about non-citizens?) Durable ties with the territory (« new

minorities », descendants of recent immigrants) Regional minority (UN HRC: Ballantyne et al. V.

Canada but ACFC) Loyalty to the country of residence? Non-dominant position (what about co-dominant

groups?)

1. DEFINITION OF MINORITY

3 points established by all international bodies dealing with minority protection:

- Existence of a minority is a question of fact, not of law

- Label in domestic order is irrelevant: community, group, indigenous people, etc.

- No arbitrary distinctions

2. EVOLUTION MINORITY PROTECTION IN INTERNATIONAL LAW

A. 1648: Peace of Westphalia Focus on religious minorities Non-systematic protection/no complaint mechanism

B. After WWI: League of Nations Focus on national minorities Bilateral treaties / int’l complaint mechanism

C. After WWII: United Nations Focus on individual human rights Art. 27 ICCPR / art. 30 CRC

D. 1989: End cold war - international codification of minority rights

2. EVOLUTION MINORITY PROTECTION A. RELIGIOUS MINORITIES

1648: Peace of Westphalia

Series of peace treaties that end the 30 years war

Principle established by these treaties: cuius regio, eius religio. Each principe has the right to determine the religion of his own state (Catholicism, Lutherianism or Calvinism).

But : Catholics, Lutherians or Calvinist minorities, who live in a state where their denomination is not the established church, are granted the right to practice their faith.

2. EVOLUTION MINORITY:A. RELIGIOUS MINORITIES

1648: Peace of Westphalia

Other examples of provisions protecting religious minorities between 17th-19th century.

General objective: to establish a modus vivendi between Catholic and Protestant states in Europe.

2. EVOLUTION MINORITY PROTECTION: B. NATIONAL MINORITIES

End of 19th century: rise of ‘national’ minorities

Closely linked to the emergence of the Nation-State and nationalism

Nationalism : new principle of political legitimacy - claims that: All humanity is divided in distinct nations = groups

united by common language, history and traditions Each nation is entitled to constitute its own state.

2. EVOLUTION MINORITY PROTECTION: B. NATIONAL MINORITIES

Consequence: a state is considered legitimate to the extent that it represents a nation.

=> Nationalism postulates the necessity of a congruence between political and cultural borders.

End of 19th century: Nation-State model, based on this principle, had become the dominant paradigm of political organisation in Europe.

2. EVOLUTION MINORITY PROTECTION: B. NATIONAL MINORITIES

Problem: in practice, in many places, the reality did not coincide with the model: Central and Eastern Europe in particular: vast

multi-ethnic Empires (Ottoman, Austro-Hungarian, Russian Empires)

« Appallingly complex patchwork of linguistic and cultural differences » (E. Gellner)

In such context, very difficult to assign each territory to one and only one cultural-linguistic group.

2. EVOLUTION MINORITY PROTECTION: B. NATIONAL MINORITIES

In practice: the principle of nationalities never accepted as a principle of international law.

Borders were not drawn merely according to the location of groups considered as national groups, impossible anyway.

New states emerging in Europe included groups which were not considered part of the nation. => groups termed « national minorities ».

Given influence of nationalist thought : source a instability.

2. EVOLUTION MINORITY PROTECTION: B. NATIONAL MINORITIES

- States could be tempted to realise the homogeneity that the nation-state model postulates: either through forced assimilation of through persecution or expulsion of minorities.

- This, in turn, could stir secessionist claims from minorities or intervention of a kin-state. => Could easily degenerate into war.

- Solution promoted by Great powers : insertion of minority provisions in treaties recognising new states

2. EVOLUTION MINORITY PROTECTION: THE LEAGUE OF NATIONS SYSTEM (1918)

- Culminates end WWI (1918): borders of Europe are reshaped.

- Minority clauses inserted by the Allies in treaties concluded with numerous states, newly created or frontiers modified.

- Novelty: international supervision mechanism set up in the framework of the (newly created) League of Nations.

2. EVOLUTION MINORITY PROTECTION: THE LEAGUE OF NATIONS SYSTEM (1918)

- 1st International Supervisory Mechanism:

- Main role: devolved to the Council of the League of Nations, composed of states’ representatives.

- But: protected minorities were granted a right of petition (= complaint) and information with the Secretary of the LN. The Secretary decided on their admissibility and could transmit them to the Council.

- In case of disagreement, the Council could seize the Permanent Court of International Justice.

2. EVOLUTION MINORITY PROTECTION: THE LEAGUE OF NATIONS SYSTEM (1918)

- Importance of the League of Nations Minority Protection System

- First international supervisory mechanism of minority protection

- First example of an international system designed to protect the rights (some) individuals. Moreover, individuals were granted a right of petition before international institutions.

- PCIJ issued several opinions on minority protection which are still referred to today

2. EVOLUTION MINORITY PROTECTION: THE LEAGUE OF NATIONS SYSTEM (1918)

- Pitfalls of the League of Nations Minority Protection System

- Minority obligations were imposed only on weak or new states (no great powers, not even Germany or Italy were concerned)

- The supervisory mechanism were too dependent on states

- The system proved ineffective to protect minorities from persecution

2. EVOLUTION MINORITY PROTECTION: C. AFTER WWII

- League of nations system of minority protection: totally discredited.

- Dominant idea in 1945: - Now necessary to focus on building an international system of protection of universal and individual rights.

- Specific Minority protection considered as an internal problem.

2. EVOLUTION MINORITY PROTECTION: C. AFTER WWII

- No minority clause in the Universal Declaratino of Human Rights (1948)

- Main achievement in relation to minorities between 1945 and 1989: article 27 of ICCPR

« In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion or to use their own language. »

NB : minority provision with universal coverage.

2. EVOLUTION MINORITY PROTECTION: D. POST-1989

End of cold war

- Fall of communist regimes in Central and Eastern Europe

- Fear of instability linked to national minority issues

- War in Yugoslavia (1991-1995)- Return of the national minority question on the

international agenda

Various initiatives in relation to minority protection taken on the international scene, especially at the European level.

2. EVOLUTION MINORITY PROTECTION: D. POST-1989

1990 CSCE Copenhagen Document

1992 - UN Declaration on the Right of Persons belonging to

National or Ethnic, Religious and Linguistic Minorities

- OSCE High Commissioner on National Minorities- European Charter for Regional and Minority

Languages

1995 Framework Convention on the Protection of National Minorities

2005 UN Independent Expert on Minority Issues

2007 UN Declaration on Indigenous Peoples

3. SECURITY V. RIGHTS APPROACH Motivations of states for taking action at international

level to protect minorities have always been mixed: as much (if not more) linked to security concerns as to humanitarian or rights concerns

Preamble of Framework Convention« Considering that the upheavals of European history have

shown that the protection of national minorities is essential to stability, democratic security and peace in this continent

Considering that a pluralist and genuinely democratic society should not only respect the ethnic, cultural, linguistic and religious identity of each person belonging to a national minority, but also create appropriate conditions enabling them to express, preserve and develop this identity »

4. CONTENT OF MINORITY RIGHTS

Two pillars:1. Formal equality and general human rights :

must enjoy general human rights on an equal footing with the majority

2. Right to identity: right to express and preserve their distinct identity (language, religion, cultural traditions). Where necessary, this may require special measures to ensure substantive equality with the majority.

PERMANENT COURT OF INTERNATIONAL JUSTICE, ADVISORY OPINION ON MINORITY SCHOOLS IN ALBANIA, 1935

« The idea underlying the treaties for the protection of minorities is to secure for certain elements incorporated in a State, the population of which differs from them in race, language or religion, the possibility of living peaceably alongside that population and cooperating amicably with it, while at the same time preserving the characteristics which distinguish them from the majority, and satisfying the ensuring special needs. In order to attain this object, two things were regarded as particularly necessary, and have formed the subject of provisions in these treaties.

PERMANENT COURT OF INTERNATIONAL JUSTICE, ADVISORY OPINION ON MINORITY SCHOOLS IN ALBANIA, 1935

« The first is to ensure that nationals belonging to racial religious or linguistic minorities shall be placed in every respect on a footing of perfect equality with other nationals of the State. The second is to ensure for the minority elements suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics.

These two requirements are indeed closely interlocked, for there would be no true equality between a majority and minority if the latter were deprived of its own institutions, and were consequently compelled to renounce that which constitutes the very essence of its being as a minority. »

4. CONTENT OF MINORITY RIGHTS: INDIVIDUAL, COLLECTIVE OR GROUP RIGHTS? Rights recognised at international level in

relation to minorities are individual rights (rights of persons belonging to minorities)

Collective rightsRights given to individuals in their capacity of

members of a certain group Different from Group rights

Rights which are granted to groups as suchGroup is the legal subject/bearer of the rightE.g.: autonomy granted to some minorities in

domestic law; UN Declaration on the Rights of Indigenous Peoples

NB: terminology used not always consistent.