Double Standards Pertaining to Minority Protection [1 ed.] 9789004189713, 9789004185791

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Double Standards Pertaining to Minority Protection

Studies in International Minority and Group Rights Series Editors

Gudmundur Alfredsson Kristin Henrard

Advisory Board

Han Entzinger, Professor of Migration and Integration Studies (Sociology), Erasmus University Rotterdam, the Netherlands; Baladas Ghoshal, Jawaharlal Nehru University (Peace and Conflict Studies, South and Southeast Asian Studies), New Delhi, India; Michelo Hansungule, Professor of Human Rights Law, University of Pretoria, South Africa; Baogang He, Professor in International Studies (Politics and International Studies), Deakin University, Australia; Joost Herman, Director Network on Humanitarian Assistance the Netherlands, the Netherlands; Will Kymlicka, Professor of Political Philosophy, Queen’s University, Kingston, Canada; Ranabir Samaddar, Director, Mahanirban Calcutta Research Group Kolkata, India; Prakash Shah, Senior Lecturer in Law (Legal Pluralism), Queen Mary, University of London, the United Kingdom; Tove Skutnabb-Kangas, Guest Researcher at the Department of Languages and Culture, University of Roskilde, Denmark; Siep Stuurman, Professor of History, Erasmus University Rotterdam, the Netherlands; Stefan Wolff, Professor in Security Studies, University of Birmingham, the United Kingdom.

VOLUME 1

Double Standards Pertaining to Minority Protection Edited by

Kristin Henrard

LEIDEN • BOSTON 2010

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Double standards pertaining to minority protection / edited by Kristin Henrard. p. cm. -- (Studies in international minority and group rights) Includes bibliographical references and index. ISBN 978-90-04-18579-1 (hardback : alk. paper) 1. Minorities--Legal status, laws, etc. I. Henrard, Kristin. K3242.D68 2010 346.01’3--dc22 2010026428

ISSN 2210-2132 ISBN 978 90 04 18579 1 Copyright 2010 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints BRILL, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.

Contents Introduction to the New Series on Minority and Group Rights .......................ix Notes on Contributors ............................................................................................xi Introduction .............................................................................................................. 1 PART I INSTITUTIONAL FOCUS ‘The EU, Double Standards and Minority Protection’: A Double Redefinition and Future Prospects .......................................................................21 Kristin Henrard The Framework Convention on the Protection of National Minorities and the Law of the European Union.................................................71 Olivier De Schutter Are Some States and Minorities More Equal Than Others? Double Standards and the Work of the OSCE High Commissioner on National Minorities ..............................................................................................117 Natalie Sabanadze and Vincent de Graaf Reducing the Risk of Differential Standards in Minority Protection: The Holistic Approach of the UN Independent Expert on Minority Issues .....................................................................................................145 Anna Meijknecht PART II OLD V. NEW MINORITIES AND MINORITIES WITHIN MINORITIES The Rights of ‘New’ Minorities: Scope and Restrictions Asbjørn Eide ....................................................................................................... 165 Changing Paradigms in the Traditional Dichotomy of Old and New Minorities ..............................................................................................................195 Roberta Medda-Windischer

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Rationalizing the Differentiation between ‘New’ and ‘Old’ Minorities? The Role of the Margin of Appreciation Doctrine in Determining the Scope of Protection of Minority rights ..............................................................219 Yutaka Arai-Takahashi Do Vulnerable Groups within Ethnic, Religious or Linguistic Minorities Need Special Standards? ......................................................................................243 Clive Baldwin Standards to Eliminate Compounded Discrimination: The Case of the Intersectionality of ‘Minorities within Minorities’ Or, why Universal Legal Standards Must Engage with the Concept of Culture ...........................259 Tove H. Malloy Annexes .................................................................................................................297 Selected Documents From International Organisations Pertaining To Minority Protection European Union EU Network of Independent Experts on Fundamental Rights, Thematic Comment no 3: The Protection of Minorities in the European Union, April 2005 ..........................................................................297 Ethnic Minorities in the Labour Market: An Urgent Call for Better Social Inclusion, Report of the High Level Advisory Group of Experts on the Social Integration of Ethnic Minorities and their Full Participation in the Labour Market, 2007 ...................................309 The Bolzano Declaration on the Protection of Minorities in the Enlarged European Union ..............................................................................315 OSCE – HCNM Presentation to HCNM 15 Anniversary The Impact of the Institution of the High Commissioner in the 15 years of its existence and the challenges ahead................................................................321 Keynote speech at the seminar: “European Year of Intercultural Dialogue: The Minority Agenda” ...................................................................326 Welcoming remarks at the Launch and conference of the ‘Bolzano Recommendations on National Minorities in Inter-State Relations’ ........331 Presentation by Knut Vollebaek at the North South Forum 2008 Dialogue and Development: Bringing Communities Together .................336

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Opening Address by Knut Vollebaek to the Conference on Linguistic Rights of National Minorities: Ten Years after the Oslo Recommendations and Beyond: Linguistic Rights in the work of the HCNM: New and Old Challenges in Promoting Comprehensive Security.....................................342 Recommendations on Policing in Multi-Ethnic Societies: February 2006 ...................................................................................................345 UN Independent Expert on Minority Issues (UNIEMI) The First Report of the Independent Expert on Minority Issues, with her analysis of her mandate, her planned methods of work, and areas of priority concern..........................................................................365 The 2009 Report of the Independent Expert on Minority Issues ..............386 Recommendations of the 2008 Forum on Minorities Issues, on Minorities and the Right to Education ....................................................400 Treaty Bodies Recommendations CERD/C General Recommendation No. 25: Gender related dimensions of racial discrimination: 20/03/2000. Gen. Rec. No. 25. (General Comments) ..................................................................................411 The Committee on the Elimination of Racial Discrimination, General Recommendation No. 30: Discrimination Against Non Citizens: 01/10/2004. Gen. Rec. No. 30. (General Comments) ...................................................412 CEDAW General recommendation No. 26 on women migrant workers.............419 Index ......................................................................................................................437

Introduction to the New Series on Minority and Group Rights This Introduction accompanies the first volume in a Series of books entitled Studies in International Minority and Group Rights. The Series Editors are pleased that Martinus Nijhoff Publishers have agreed to the publication of this new Series which will be affiliated with albeit independent from the International Journal of Group and Minority Rights (IJMGR). The Series will have the same scope and subject matter as the Journal, that is the rights of and situations facing minority persons and groups, with the concept ‘minority’ understood in a broad sense. We invite manuscripts with a multidisciplinary approach. However in view of the title of the Series (and its link with the Journal), the legal dimension should be substantial. The Journal is now in its 16th year, and it has recently expanded to four issues of 150 pages each per year. Nevertheless, continued increase in demand for space in the IJMGR, not least special issues devoted to specific topics, has brought about waiting times of up to one year and more. The Series is, in particular, intended to meet this demand for special issues and facilitate the publication of such materials in a more timely fashion. Furthermore, the Series will provide a forum for the publication of monographs, including manuscripts that emerge from doctoral dissertations, postdoctoral research projects, other academic studies, conference reports, compilations of relevant documents and other book-like materials that are likely to be of special interest to the readers of the Series. As with the Journal, volumes in the Series will be peer-reviewed and the usual standards of academic excellence will be upheld. The publication of 1-3 books per year is foreseen. Works of theoretical and practical character, as well as those with multi-disciplinary and inter-disciplinary approaches, are welcome. Gudmundur Alfredsson

Kristin Henrard

Notes on Contributors Kristin Henrard Kristin Henrard is professor minority protection at the Erasmus University of Rotterdam (EUR) as well as associate professor Constitutional Law. She teaches human rights, comparative human rights, minority protection and constitutional law. From February 2005 onwards she has been working on her VIDI- project which was approved by N.W.O. regarding the implications for minority protection of the Race Directive. Since 2005 she is a member of the Young Academy of the Royal Dutch Academy of Sciences. In 2008 she established the Minority Research Network which has an ever growing global and interdisciplinary membership. Since September 2009 she has been promoted to Professor at the EUR. Her main publications pertain to the areas of human rights and minority protection. Olivier De Schutter Olivier De Schutter is professor of human rights law at the University of Louvain (Belgium) and at the College of Europe (Natolin), visiting professor at Columbia University (USA), and the UN Special Rapporteur on the right to food. Between 2002 and 2007, he was the coordinator of the EU Network of independent experts on fundamental rights. Natalie Sabanadze Dr Natalie Sabanadze (Georgia) became a Senior Political Adviser to the OSCE High Commissioner on National Minorities in 2005. Previously she worked as a political analyst in the US Embassy in Georgia and as an editor for the BBC World Service. She holds a Masters Degree in International Relations from the London School of Economics and a PhD from Oxford University in Politics and International Relations. Her academic work has focused on questions of political nationalism, ethnic conflict, and post-communist transition and her thesis dealt with Globalization and Nationalism. Vincent de Graaf Vincent de Graaf works as a Legal Adviser for the OSCE High Commissioner on National Minorities in The Hague. He specialises in European and Public International law and holds law degrees from the Universities of Aix-Marseille, Maastricht and Cambridge. He previously worked for the Legal Service of the European Commission, the Directorate of Legal Affairs of the Netherlands

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Ministry of Foreign Affairs and the Netherlands Council of State in the fields of EU enlargement, human rights, migration and EU law. Anna Meijknecht Anna Meijknecht is a senior researcher at the Center of Transboundary Legal Development at assistant professor at the Department of European and International Law of Tilburg University, the Netherlands. Since 1999 her work focusses on the legal status and the protection of the rights of minorities and indigenous peoples and, more recently, also on land rights and indigenous knowledge. Her publications include ‘Towards International Personality: the Position of Minorities and Indigenous Peoples in International Law’ (Intersentia, 2001) and ‘Minority Protection: Standards and Reality’ (T.M.C. Asser Press, 2004). Asbjorn Eide Asbjørn Eide, is former Director and presently senior fellow of the Norwegian Center for Human Rights at the University of Oslo. He was previously a Director of the International Peace Research Institute in Oslo, a former Secretary-General of the International Peace Research Association, and the author of numerous books and articles on peace and conflict issues and human rights. He has been Torgny Segerstedt Professor at the University of Gøteborg, Sweden and is presently visiting professor at the University of Lund. He was a member from 1981 to 2003 of the United Nations Sub-Commission on Promotion and Protection of Human Rights and from 1995 to 2004 the Chairman of the United Nations Working Group on the Rights of Minorities. Roberta Medda-Windischer Roberta Medda-Windischer, LLM (Essex), PhD (Graz) is an international lawyer specialised in human rights and minority protection. She has gained experience with various international organisations: in Bosnia, for the UN High Commissioner for Refugees, in Albania, for the Organisation for Security and Co-operation in Europe, in Geneva, for the UN Centre for Human Rights, in Strasbourg, for the European Court of Human Rights. Currently, she is Senior Researcher at the Institute for Minority Rights at the European Academy (Eurac). Her research focuses on the protection of minorities in international law and on new minorities stemming from migration. Yutaka Arai-Takahashi Dr. Yutaka Arai LLM (Keio) has optbained his PhD at Cambridge university and is currently Senior Lecturer in International Law at the university of Kent. He has published extensively in the areas of international human rights law

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and international humanitarian law. His most recent work includes The Law of Occupation - Continuity and Change in International Humanitarian Law, and its Interaction with International Human Rights Law (Martinus Nijhoff, 2009). Clive Baldwin Clive Baldwin is Senior Legal Advisor with Human Rights Watch. He previously worked as a lawyer with Bindman and Partners in London, with the AIRE Centre on litigation at the European Court of Human Rights, and with the OSCE Mission in Kosovo. He spent five years as Head of Advocacy at Minority Rights Group International, where he ran a programme of global litigation on behalf of minorities. Tove Malloy Tove H. Malloy is Director of the European Centre for Minority Issues (ECMI) in Flensburg, Germany and Lecturer at the University of Southern Denmark. She specializes in the political aspects of minority rights in international law and IR with a specific focus on the European context. She is the author of National Minority Rights in Europe (OUP 2005) as well as numerous articles on minority rights and minority issues.

Introduction It is an honour to write the introduction to the first book in the new Series on Minority and Group Rights as it launches a new series that focuses on the increasingly important theme and complex problematic concerning minority protection. This volume seems particularly appropriate as first volume because it picks up, addresses and expands thinking about several core questions pertaining to minority protection, while groping with the peculiarities of the minority protection developments in several international organizations each with a distinctive rational and signature. The volume also goes beyond accounts and analysis of positive law and adds perspectives of legal theory and political science, while including the voice and extensive knowledge about national standards and policies of an expert working for human rights NGOs. The volume was triggered by a most interesting seminar on Preventive and Reactive Approaches to Minority Issues at the office of the High Commissioner on National Minorities (HCNM) in 2007, where staff of the HCNM and a few invited academics and representatives of NGOs interacted with the UN Independent Expert on Minority Issues (UNIEMI) and representatives of the EU. Participants were asked to reflect on challenges concerning minority protection in the European Union and its member states and also about the ways in which the experiences and practices of the HCNM and the UNIEMI could be useful as a point of reference, as a model for other actors, the EU more particularly. A recurring theme was the allegation of double standards in minority protection in relation to the EU and more particularly the complaint that the EU was serious about requiring third states and especially candidate states to respect the rights of minorities, while not imposing the same demand on (actual) member states. However, throughout the discussions it also became clear that differential standards play a role in the on-going debate on whether or not immigrants could qualify as (new) minorities. A third possible reason for having special measures or differential standards in relation to minorities concerns the appropriate protection for vulnerable groups within minorities, like women, LGBT (Lesbian, Gays, Bisexuals and Transsexuals), and disabled people. Arguably the ‘differential standards’ concerned have each time a different background, refer to a different kind of differentiation, with a different Kristin Henrard, Double Standards Pertaining to Minority Protection, pp. 1–18. © 2010 Koninklijke Brill NV. Printed in the Netherlands.

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connotation. Be that as it may, addressing allegations of double standards invites critical analysis of the basic rational of international organizations, and how this could impact on possible, potential and actual developments concerning the protection of minorities. Furthermore, studying and evaluating the need, appropriateness or justification of differential standards presupposes considering, understanding and reconsidering the basic tenets of minority protection, what is it about, what are the goals, what are the constraints, to what extent are minority specific rights and policies needed in addition to minority neutral ones, who are the minorities concerned, how is minority protection related to the protection of vulnerable groups within minorities. Regarding the complaint of double standards in relation to the EU, the discrepancy between the internal and the external scenario became painfully clear in relation to demands on candidate countries to ratify the Framework Convention for the Protection of National Minorities. Throughout the monitoring of the accession criteria the Commission used the Framework Convention as central point of reference and explicitly required the candidate countries to ratify that Convention. However, no similar demands were ever made to existing member states. Indeed, it is common knowledge that France, Belgium and Greece are some of the most notorious states refusing to ratify that Convention. The issue of the attributed and hence limited competencies of the EU tends to come up in relation to the absence of internal minority specific standards. Nevertheless, such constraints are not the end of the matter, since minority rights, as human rights generally, need to be respected when one exercises once competences. Hence the broad variety of policies of the EU and more particularly the extent to which they are implemented in a minority conscious way invites close scrutiny. While the double standards complaint has been most strongly formulated in relation to the EU, also the practice of other international organizations has met with allegations of unjustified differential treatment. Indeed, the UN and OSCE standards may be equally directed to all member states, it was felt that the practice of the specialized bodies, more particularly the UN Independent Expert on Minority Issues and the High Commissioner on the Protection of National Minorities did not direct their attention evenly or fairly. The HCNM is at times perceived to be particularly concerned with countries in Eastern Europe, which leads to some indignation in the countries concerned as they feel they are disproportionately targeted. It is important to understand the HCNM’s activities against the background of his mandate which is concerned with conflict prevention rather than human rights as such. Hence, it is understandable that his activities would be targeted to those countries and regions where the tensions between authorities and minorities are

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such that they are more prone to escalate into conflicts. Still it is possible to question whether the assessment of where action is needed to prevent conflicts is done in a fair and balanced way. In relation to the UNIEMI, the complaint was not so much about her focusing on particular countries, while disregarding problems elsewhere. The concern expressed in regard to her work was rather that (at least initially) she was particularly focused on questions of economic participation, poverty and development and not so much on core identity issues pertaining to language, education, way of life, religion etc. At the time the first incumbent UNIEMI had been in action for about two years and was arguably still searching for the most appropriate modus operandi in relation to her broad mandate, both geographically and substantively. In the mean time a rich body of practice and resulting reports has developed and can be studied in depth in order to identify possible discrepancies in focus and attention. Throughout the discussions, it was inevitable that questions of definition surfaced, especially considering the fact that there is still no generally agreed upon, let alone legal definition of the concept ‘minority’. One particular issue about which there is on-going debate and disagreement concerns the position of migrants as possibly ‘new’ (as opposed to traditional or old) minorities. There is a broad variety of positions in this respect. Some would exclude immigrant groups altogether from the qualification of ‘minority’. Consequently they would not concern analogous groups that need to be treated equally. The point is made that immigrants have chosen to come to the country, which would imply a will and readiness to ‘integrate’. However, there is no clear, uniform definition of ‘integration’. Hence everything depends on how one defines integration and more particularly how it relates to ‘assimilation’. In this respect it can be argued that it is not because someone moves for economic and/or political reasons that he/she chooses to give up his or her identity.1 Others see the two categories as closely related, with several similar characteristics and maybe even some overlap in coverage. To the extent that immigrants are not analogous, they can be treated differently, as long as the difference is proportionate to the difference in ‘starting position’. This position would rather point to immigrants as a particular category of minorities with some differentiation in the rights they are entitled to in comparison with 1

A. Verstichel, ‘Personal Scope of Application: an Open, Inclusive and Dynamic Approach – the FCNM as a living instrument’, in A. Verstichel et al (eds.), The Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument, Intersentia 2008, 148.

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traditional minorities. In this respect it is important to keep in mind that the minority specific rights tend to be formulated with several qualifiers, ‘where possible’, ‘where necessary’ and the like. Hence these rights themselves foresee a certain gradation in their actual enjoyment, a certain sliding scale. Duration of residence is arguably considered as one of the relevant factors in this respect as is reflected in (at least) some provisions of the FCNM (where importance is attached to the factor of traditional inhabitation).2 Concerning ‘new’ minorities differentiation in standards and entitlements is rather a mechanism to determine the position of a ‘related phenomenon’ to traditional minorities within the overall minority protection paradigm, incorporating it to some extent. The debate about the position of immigrant groups is triggered by the fact that traditionally states considered it essential that persons belonging to minorities would have the nationality of the country (of residence) concerned. A related requirement which3 was often imposed was having durable ties with, or long lasting (traditional) residence in the state concerned. Francesco Capotorti pointed out in his seminal Study of 1977 on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities pertaining to article 27 ICCPR, the most basic international law provision on minorities and minority protection, that most states had indeed indicated in

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In relation to the related question whether states can limit the scope of application of the FCNM to the so-called traditional settlement area of a minority, the AC tends to underscore that ‘although the Framework Convention attaches importance in a number of its provisions to the criterion of traditional inhabitation of certain areas for protection, the majority of its provisions are designed to apply throughout the territory of the state concerned’ (ACFC, First Opinion on Denmark (2000), para 17). In this respect it is particularly striking that the constitutionally entrenched principle of territoriality in Switzerland (by virtue of which it is for the cantonal authorities to ensure that the traditional confines and the homogeneity of the linguistic regions are maintained) was called into question by the AC. It observed that ‘the present relationship between the principle of territoriality and freedom of language raises specific difficulties from the point of view of the implementation of the Framework Convention. … certain adjustments and more pragmatism could often enable practice to be better reconciled with the obligations flowing from the Framework Convention (ACFC, First Opinion on Switzerland, para 12). Similarly in relation to Italy’s geographical arrangements pertaining to the protection of historical linguistic minorities, the AC warned against too rigid an approach to the current arrangements, pointing out that ‘their extension may in the future be needed to reflect demographic and other changes resulting inter alia from increased mobility’ (ACFC, Second Opinion on Italy, para 27). See infra in the articles of Asbjorn Eide and Roberta Medda-Windischer. F. Capotorti, Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.1, 12. He also points to the fact that aliens traditionally enjoy special protection under international law, not available to citizens of the state

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their responses to his questionnaire to hold on to the nationality requirement.4 It can be noted in that respect that the travaux préparatoires of article 27 are not conclusive on this issue. On the one hand, it has been put forward that the documents concerned, and more particularly interpretative statements made by certain states, confirm the exclusion of aliens from the concept ‘minority’.5 On the other hand, it cannot be disregarded that when an Indian representative explicitly suggested to replace ‘persons’ in article 27 by the word ‘citizens’, this was not accepted by the majority of state representatives and thus not withheld.6 In other words, there seems to have been considerable disagreement about this issue right from the start. In the mean time particular events and experiences have affected perceptions about the validity and/or legitimacy of a nationality requirement. The break up of composite states like the USSR has underscored that states have almost a free hand in how they devise their nationality legislation, while this can have particularly unjust implications for some ethnic minority groups with the nationality of the ‘old’ state that have lived in the same region for decades.7 Furthermore, the increasing awareness of the omni-presence of the Roma in Europe and their qualification as the European minority par excellence, in combination with their nomadic way of life underscore the inappropriateness of a nationality requirement since this is especially difficult to satisfy by nomadic groups.8 The Human Rights Committee in its supervision of article 27 ICCPR has already in 1994 explicitly opted for a broad understanding of the concept ‘minority’, denouncing the need to have the nationality of the state of residence, or long lasting ties with it.9 However, when one scrutinizes the declarations made by states when ratifying the European Framework Convention for the Protection of National Minorities in which they clarify to what groups the Convention will apply to in their territory, it is noticeable that several states still hold on to this requirement.10 Still, the actual practice of a state does not

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and that they consequently have a separate status in law which should be sufficient to answer their distinct position and ensuing needs (ibid.). See also P. Thornberry, International Law and the Rights of Minorities, Clarendon Press 1991, 170. Thornberry 1991,172. M. Nowak, 489. See inter alia J. Theunis, ‘Bescherming van minderheden in de Raad van Europa: Een kaderverdrag maar (voorlopig?) geen aanvullend protocol bij het EVRM’, TBP 1996, 76. The potential effect on minority protection of changes in state borders was clearly noticed and (partially) addressed in the minority treaties of the League of Nations, see J. Deschênes, ‘Qu’ est-ce qu’une minorité?’, Les Cahiers de Droit 1986, 263. See also P.V. Ramaga, ‘The Group Concept in Minority Protection’, H.R.Q. 1993, 580. HRC, General Comment 23, Article 27 (1994), para 5.2. See inter alia the Declaration of Austria, Estonia, Germany, Poland and Switzerland.

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necessarily coincide with a restrictive definition in its Declaration.11 Furthermore, a country can amend its definition of the concept minority from one supervisory cycle to another one.12 The FCNM’s Advisory Committee has gradually but surely adopted the position that citizenship should not be an a priori requirement for the enjoyment of minority rights.13 Nevertheless, the periodic review of the state reports reveals that states with strong convictions about this issue, tend to hold on to that stance, and are not easily persuaded otherwise (by a non-legally binding opinion and recommendation), at least not so far.14 Be that as it may, even if the nationality requirement would be relaxed and even if immigrants would obtain the nationality of the country of residence, there is the requirement of having firm, long-standing and lasting ties with the country of residence which still seems problematic in relation to ‘immigrants’. A lot depends of course on how this requirement would be interpreted: would 20 years be sufficient, or two or three generations? This question in itself seems to indicate the danger of arbitrary distinctions, something the Advisory Committee has been warning against from the beginning.15 The rising migration movements in the world, which seem to go hand in hand with globalization, has led to ever more people settling in different countries than their countries of origin. Furthermore since the 1970s, immigration tends to lead to permanent settlement with the amount of immigrants

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Verstichel 2008, 132–133. In this respect she notes that for example Norway demanded a long term connection with the country in its declaration but it did clarify that non-citizens and even recently arrived immigrants belonging to a recognized minority can take part in activities organized for these minority groups (ibid). See ACFC, Second Opinion on Hungary, ACFC/INF/OP/II(2004)003, para 21. Verstichel 2008, 145. Consider the positions of for example Denmark and Germany in the second cycle. Notwithstanding the absence of an explicit definition of the concept national minority in the FCNM, the Advisory Committee explicitly reserves for itself the right to critically screen the position taken by the contracting states regarding the determination of the scope ratione personae of the Framework Convention. Typically the AC: ‘underlines that in the absence of a definition in the Framework Convention itself, the Parties must examine the personal scope of application to be given to the Framework Convention within their country. … Whereas the Advisory Committee notes on the one hand that Parties have a margin of appreciation in this respect in order to take the specific circumstances prevailing in their country into account, it notes on the other hand that this must be exercised in accordance with general principles of international law and the fundamental principles set out in Article 3. In particular, it stresses that the implementation of the Framework Convention should not be a source of arbitrary or unjustified distinctions. …’: see inter alia AC, Opinion on Norway, 12 September 2002, ACFC/ INF/OP/I(2003)003, para 16–18; AC, Opinion on Moldova, 1 March 2002, ACFC/INF/ OP/I(2003)002, para 17–19.

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actually returning to their country of origin sharply reducing.16 States are thus increasingly confronted with second and third generation migrants, and thus with the ‘durable’ presence of groups with a distinct identity. Hence, at some point the groups concerned can no longer be considered to concern ‘recent immigration’ and over time they should be entitled to similar protection as those for the traditional minorities.17 Considering this ultimate perspective, it seems more reasonable to gradually expand the rights of ‘new’ minorities, in line with the so-called sliding scale approach. This would seem to entail that the longer the groups concerned are around and the more it becomes clear that they will stay, the stronger their rights would become. It can be noted that several states actually treat groups that settle and stay (for several generations) as minorities.18 All in all, the situation and reception of ‘new’ minorities is still rather ambivalent: while there seems to be a trend to recognize that it would be unfair and unjust (and to some extent arbitrary) to completely exclude them from the reach of the concept ‘minority’, there are on-going voices underscoring that immigrants are a different reality than traditional minorities. Still others argue that it is one thing to accept them as a ‘minority’ but quite another to accept that they would be entitled to the same rights as traditional minorities. Clearly, this is and will probably remain for a while to come an area of minority protection law which is in flux. Just as the instruments with minority specific rights do not give an explicit answer to the question whether and to what extent immigrant groups would be entitled to minority rights, is there no explicit clause on how to protect minorities within minorities. The groups most focused upon in this respect

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This does not apply to irregular migration and the mass displacements stemming from emergency situations in countries of origin irregular migration and the mass displacements stemming from emergency situations in countries of origin. Furthermore, it needs to be acknowledged that there is ongoing research on circular or return migration. Circular migration in a global context is used as a triple win discourse promising gains for host countries, home countries and migrants themselves, promising accelerated economic growth, remittances, relative high wages and brain gain, by means of full circles of migration: immigrants should be able to come, go and come back again, without many restrictions and making use of contemporary transnational networks. Return migration is the process by which a migrant returns to their country of origin (usually to stay) after being away for a particular period of time. Verstichel 2008, 149. A. Fenet, ‘Europe et les Minorités’ 85. For a critical reflection on nationality requirements for the qualification ‘minority’ in relation to immigrants, see R. Wolfrum, ‘The Emergence of New Minorities as a Result of Migration’, in C. Brölmann et al (eds.), Peoples and Minorities in International Law, KLI 1993, 160–163.

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concern women, but there is also attention for persons with a handicap or an alternative sexual orientation. Furthermore, there may be dissent within a group on particular tenets of the minority religion, culture etc. The groups concerned are particularly vulnerable and arguably require special protection and/or special attention, at least in two different respects. On the one hand, internal minorities raise questions about how to deal with conflicting fundamental rights and conflicting fundamental interests, more particularly the interests of the ‘group’ and need to protect the group identity versus the interest of the individual belonging to the minority.19 As there are no actual minority group rights, the conflicting interests manifest themselves as conflicting rights of individual members of the minority group. In addition to this problem of conflicting fundamental rights where the tension is located ‘internally’ in the minority, minorities within minorities are also prone to ‘intersectional’ discrimination, where the source of the harm is located ‘externally’. The latter problem of ‘intersectional’ discrimination engages more than one ground of discrimination at the same time and triggers thoughts and strategies on how to combat this kind of discrimination.20 Arguably, the disadvantage suffered by a minority woman or a minority disabled person is more than the sum of the respective instances of discrimination, namely ethnicity & gender and ethnicity & disability respectively, hence requiring special measures of protection. As it stands neither the existing instruments pertaining to the prohibition of discrimination nor the minority specific instruments target as yet this particular form of discrimination. However, there is a growing understanding of the need to address this, both by policy makers (for example in the EU21) and by supervisory mechanisms (for example the Committee on 19

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The argument is made that individual human rights should always take precedence over conflicting group rights. However, to the extent that also these group rights would be considered to qualify as human rights, such an abstract rigid hierarchy seems out of place. Instead, the principles put forward in relation to conflicts between individual human rights should be followed. This would entail that one would need to look for a compromise position which leaves as much as possible both conflicting rights in tact. Care should be taken to avoid in any event that the core of any of the rights concerned is compromised. This type of discrimination is also often referred to as ‘multiple discrimination’ (T. Makkonen, Multiple, compound and intersectional discrimination: bringing the experiences of the most marginalised to the fore, Åbo Akademi 2002, 9–10). However, the latter term can also point to situations in which two or more separate discriminations on distinct grounds take place at the same time (D. Schiek et al (eds.), Materials, Cases and Text on national, supranational and international non-discrimination law, Hart 2007, 171; S. Hannett, ‘Equality at the Intersections: The Legislative and Judicial Failure to Tackle Multiple Discrimination’, Oxford Journal of Legal Studies 2003, 68; Makkonen 2002, 10). In order to avoid confusion, the concept of ‘intersectional discrimination’ is used. Consider inter alia the Proposal for a Council Directive on Implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual

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the Elimination of All Forms of Racial Discrimination22). Be that as it may, a lot of work remains to be done, more particularly to devise the appropriate regulatory framework, adapted to the complex realities of intersectional discrimination, in terms of (inter alia) the model of review and appropriate sanctions. The need for specific strategies to combat intersectional discrimination of particularly vulnerable members of minorities, who concern vulnerable groups in themselves, has been related to ‘triple standards’ in minority protection. In contrast to the double standards saga, triple standards are considered as something that is needed, not something suspect that needs to be justified. While no similar translation has been made concerning the protection of internal minorities, also in this respect it concerns the search for ‘adapted’, ‘special’ protection of these persons. None of the articles systematically addresses the problem of internal minorities as related to the need of protecting them from the pressures of their minority group. Nevertheless the presence of cursory references in at least one article of the edited volume seems to justify a brief exposé in the introduction. Internal minorities bring to the fore the possible tension between group interests (aimed at the protection of the group and the group identity) on the one hand and interests of the individual members that their individual rights are fully respected (protecting their human dignity) on the other. Arguably this potential conflict needs to be addressed in line with the ‘rules’ for conflicts of fundamental rights more generally, such as the conflict between the freedom of expression and the respect for one’s privacy. There is no rigid hierarchy of fundamental rights, as they are in principle equally fundamental and carry a priori equal weight.23 Dealing with conflicts between human rights leads one to the question of legitimate limitations to human rights. Indeed, hardly any fundamental right is absolute and allows for legitimate limitations provided that certain criteria are met. Hence, applying the respective criteria of legitimate limitations to each of the conflicting rights should be helpful to resolve conflicts. While in

22 23

orientation {SEC(2008)2180}{SEC(2008)2181}, explanatory memorandum (between footnotes 12 and 18) and recital 13 (‘In implementing the principle of equal treatment irrespective of religion or belief, disability, age or sexual orientation, the Community should, in accordance with Article 3(2) of the EC Treaty, aim to eliminate inequalities, and to promote equality between men and women, especially since women are often the victims of multiple discrimination’). See the Annex. See also E. Brems, ‘Introduction’, in E. Brems (ed.), Conflicts between Fundamental Rights, Intersentia 2008, 3.

10

Introduction

principle one should have regard to the limitation clause of each fundamental right, some criteria seem to have a more general validity: the limitation needs to pursue a legitimate aim and needs to be proportionate to that legitimate aim. Be that as it may, minority specific rights are special in this regard as these rights do not tend to have an explicit limitation clause. While article 19 FCNM seems to provide a general limitation clause it does not provide guidance for the actual minority rights. Indeed, the FCNM also contains general human rights that are formulated as rights for persons belonging to minorities. Article 19 does explicitly envisage the possibility of limitations, restrictions and derogations to the rights taken up in the FCNM, and then refers back to what is allowed in terms of other international instruments. This makes perfect sense for the rights that have equivalents in the European Convention on Human Rights or the International Covenant on Civil and Political Rights. However, in so far as it would concern the actual minority rights, article 19 does not provide guidance as none of the other minority specific instruments (provisions) contain limitation clauses. It can be argued that the line of thinking developed by the Human Rights Committee in its jurisprudence pertaining to article 27 ICCPR should be followed. This does not provide detailed guidance but does seem to indicate that the Committee considers similar criteria applicable to limitations to minority specific rights as to minority neutral human rights. In Lovelace v Canada the HRC indeed stipulates the need for a reasonable and objective justification for a legitimate limitation to the rights enshrined in article 27 ICCPR.24 This can be translated into a requirement of a legitimate aim and a relationship of proportionality between the limitation and the legitimate aim. The Committee furthermore explicitly acknowledges that the need to protect the identity of the minority group concerned would amount to a legitimate aim, allowing the limitation of the rights of the individual member of the group. Still the proportionality requirement does impose limits to the extent to which this legitimate aim allows limitations to the rights of individual persons belonging to the minority.25 Consequently, it would seem possible to apply the same principles when the conflicting fundamental rights concern persons belonging to minorities. This seems the more appropriate since the conflicting rights concern the individual 24 25

HRC, Lovelace v Canada, communication no 24/1977, 30 July 1981, para 16. Lovelace v Canada, para 17–19. These criteria have also been applied in Kitok v Sweden (communication no197/1985, 27 July 1988), para 9.8 while the Committee argues that the restriction of the right of an individual member of a minority should be ‘necessary for the continued viability and welfare of the minority as a whole’.

Introduction

11

right of one member in relation to the individual right of another member. Still, as was outlined above: there are no ready to go solutions, there is no set system that can mechanically be applied.26 Nevertheless, some guiding principles seem to have emerged. First of all one should try to adopt a compromise position, limiting both rights to some extent, which avoids giving priority to one right over the other. If this is not possible and one needs to make a hard choice, some criteria for prioritization in concreto can be identified, like the distinction between core and periphery and the indirect involvement of other rights, due to the involvement of third parties or to the ‘leverage’ effect of a particular right.27 In the end, it is clear that this can only be determined in concreto, taking into account all relevant circumstances. Nevertheless the position that preferably neither right is sacrificed and that a compromise position should be identified is important both for the goal of effective minority protection and for the need to ensure adequate protection of minorities within minorities. Minority rights would not ipso facto be considered less important than ‘general’ human rights, while minorities within minorities are protected against a disproportionate erosion of their individual human rights, the core of these rights would need to be protected. Sometimes it is put forward that a right to exit would remedy rather far reaching restrictions imposed by a group on its members. However, this begs the question: is exit at all feasible or better realistic. This is also intrinsically related to the question whether the persons concerned want to leave their minority group. Indeed it would be a mistake to disregard the strong intrinsic bond between individual and group identity.28 Obviously, it will often not be straightforward what path the authorities should adopt when they are confronted with tensions between interests of the minority groups on the one hand and interests of some of its members on the other. 26

27 28

Some courts do have formulated a general approach towards conflicts of fundamental rights, like the German Bundesverfassungsgericht and its method of ‘praktische Konkordanz’ (inter alia K. Hesse, Grundzüge des Verfassungsrechts der Bundesrepublics Deutschland, CF Müller, 1978). In relation to others it is possible to identify a set of relevant factors that are often explicitly evaluated in a conflict between two particular rights. The jurisprudence of the European Court of Human Rights in relation to the conflict between the freedom of expression and the right to respect for privacy is a good example, see inter alia K. Henrard, ‘Botsende grondrechten en het EHRM: een pleidooi voor meer zorgvuldige argumentatie en minder ‘margin of appreciation’ voor staten’, in E. Brems et al (eds.) Botsing van Grondrechten, BJU 2008, 43–60. Brems 2008, 5. L. Green, ‘Internal Minorities and their Rights’, in W. Kymlicka (ed), The Rights of Minority Cultures, Clarendon Press 1995, 256–272.

12

Introduction

The selection of articles addresses a broad range of ‘double’ or better ‘differential standards’. They can be roughly divided in two categories: one pertaining to allegations of differential standards in relation to several international organizations, the other one primarily focused on the position and rights of so-called new or immigrant minorities. The complexities concerning the protection of minorities within minorities are touched upon in several of the articles but never in any systematic way. The last two articles do, however, focuses on intersectional discrimination.

Institutional Focus As the complaint of double standards is mostly voiced regarding the EU, it seems appropriate to have two contributions on this topic, especially when they are complementary. Kristin Henrard sets out to redefine the accusation of double standards by putting it into a broader perspective (pertaining to minority protection), while also touching on some additional levels of (seemingly) double standards. Her central argument is that when evaluating the standards of the EU in terms of minority protection and their contribution to minority protection, it is important to make a distinction between minority specific and non-minority specific standards. Arguably the current focus internally seems to be on non-minority-specific standards and policies. The actual contribution to minority protection depends then on their minority conscious implementation. Her contribution analyses the developments in the implementation of the relevant policies while highlighting and clarifying the different degrees to which these non-minority-specific standards are implemented in a minority conscious way. Tracing the developments in this regard and setting out to identify development lines, by linking them to other developments within the EU, as well as understandings and visions about European integration and European identity is arguably important to gauge the status quo and especially the future (potential) of an (emerging) internal minority protection policy for the EU. Notwithstanding various flaws in the current internal minority protection level in the EU, and the doubts about the wholeheartedness of the minority protection policy, arguments can be put forward why in the future more rather than less minority conscious measures can be expected. Olivier de Schutter’s contribution is not written from the perspective of ‘double standards’ but nicely complements Henrard’s evaluation. His contribution can de facto be considered to respond to this complaint by providing a detailed assessment of the actual and especially the possible role of the Framework Convention for the Protection of National Minorities in relation

Introduction

13

to EU law and policy. Since that convention was the reference point of the Commission during the accession monitoring in relation to the criteria ‘respect for the rights of minorities’, it seems appropriate to check whether the EU de facto lives up to the standard it sets candidate countries. De Schutter analyses EU law not only as a potential vehicle for the implementation and development of the FCNM in the EU member states, but also as a potential threat to the effective realization of the goals of the FCNM, against which certain safeguards should be built. Furthermore, he identifies the guidance potential of the FCNM, on an article by article basis, taking into account the ever growing body of supervisory practice in the form of opinions of the Advisory Committee. He does warn against the EU’s development of new standards, by the adoption of legislation implementing the values of the FCNM. The danger would be that the EU may in fact be pre-empting a field which is already taken up by Council of Europe instruments while the standard of protection would not be as strong as those defined by the Council of Europe. The third contribution in the ‘institutional’ part concerns the OSCE’s High Commissioner for the Protection of National Minorities and is written by two members of his staff, Vincent de Graaf and Nathalie Sabanadze. While the HCNM is one of the success stories of the OSCE, the authors acknowledge that its work has not been immune to accusations of pursuing or condoning double standards, especially a selective engagement towards the East, leaving Western countries ‘alone’. This accusation needs to be addressed in terms of the function of the HCNM as conflict prevention instrument, rather than as human rights instrument. The article tried to show that the HCNM’s approach is justified first because security and human rights are closely inter-connected at many different levels and, second, because the question of national minorities is multi-dimensional and requires a comprehensive approach that goes beyond human rights. From the HCNM’s perspective it is essential to understand and address this problem in all its complexity in order to minimize the risk of conflict both within and between States. Arguably this basic approach explains why his activities are concentrated on particular countries in certain regions. Moreover, they argue that this is not at odds with the minority rights framework itself since that calls for a context specific and differentiated approach rather than an “all-or-nothing” catalogue of rigid pre-determined models and entitlements. Finally, the contribution on the UN Independent Expert on Minority Issues underscores the importance of the holistic approach adopted by the first incumbent, exactly to counter or at least reduce the risk of differential standards in minority protection. The UNIEMI received a broad and general mandate when it was established in 2005. The UNIEMI’s activities do full justice to

14

Introduction

the global and broad mandate as she continuously expands her working field both geographically and thematically. Anna Meijknecht criticizes the limited human and financial resources of this special procedure of the UN, since this could threaten over time the maintenance and success of the holistic approach adopted.

Old v new minorities and minorities within minorities No less than three articles address the question of differential standards pertaining to minority protection in relation to the position and rights of immigrant or new minorities. While the first two (Eide and Medda-Windischer) adopt a more academic human rights perspective, Yutaka Arai-Takahashi adopts a more philosophical, legal theoretical perspective and links it to the margin of appreciation doctrine. The two remaining articles identify and evaluate the problem of minorities within minorities and more particularly as a case of intersectional or compound discrimination. While Baldwin adds the important NGO perspective with ample examples of national policies and practices, Tove Malloy brings with her social science perspective another important layer to the edited volume. Eide argues that contemporary international minority rights are based on and are extensions of universal human rights which do not justify general distinctions between ‘old’ or ‘new’ minorities. Most minority rights are in principle applicable to both. Since human rights form the basis for minority rights, states must also ensure that minorities like majorities respect human rights among themselves and towards others. Earlier definitions of ‘minority’ using ‘citizenship’ or ‘traditional’ as a general criterion for the minority concept is no longer tenable. It is recognized, however, that there exists a different opinion holding that protection of minorities, particularly of ‘national minorities’ requires something substantially different from an extended application of human rights. This is brought out particularly in regard to the scope of application given by many State Parties to the European Framework convention for the Protection of National Minorities, many of whom apply the rights therein only to the ‘old’ minorities. His contribution discusses the origin and present status of that distinction and argues that most, though not all, rights even in the Framework Convention on National Minorities correspond to rights contained in universal human rights provisions, but agrees that in some contexts states have stronger obligations towards ‘old’ and settled national minorities than those that can be derived from human rights in general.

Introduction

15

Medda-Windischer develops a related but still distinctive argument in which she sets out to conceptualise a common approach for the protection of old and new minorities, while identifying several (other) factors that might lead to differences in entitlements. She argues that in spite of their differences, old and new minorities are in many respects alike. Hence both categories should be entitled to broadly similar rights (right to existence, recognition, non-discrimination, equality, effective participation in the public life). When reference is made to universal human rights or general norms of minority protection there is therefore no need to distinguish between persons belonging to ethnic, religious or linguistic groups made up of recent immigrants, and historical minorities. Other rights, such as the right to use a minority language in relations with the authorities or the right to street names in the minority language are more specific and their implementation must be differentiated. The difference however is not solely based on the fact that a given group belongs to the ‘old’ or ‘new’ minority category: other factors are relevant and apply without difference to both old and new minorities, such as socio-economic, political and historical factors. Furthermore, the fact that members of a minority live compactly together in a part of the state territory or are dispersed or live in scattered clusters, or the fact that members of a community having distinctive characteristics have long been established on the territory, while others have only recently arrived, are important factors. Yutaka Arai-Takahashi focuses in his account on the differentiation between new and old minorities on the possible role of the margin of appreciation doctrine in determining the scope of protection of minority rights. The paper starts with discussing the nature of the margin of appreciation doctrine, and its application in clarifying indefinite concepts of minority rights and determining specific positive obligations to give effect to rights of minorities. Having obtained insight into the modalities of the margin of appreciation in relation to minority rights regime, theoretical inquiries are undertaken into underlying rationales for differentiating or undifferentiating “old” and “new” minorities. His analysis leads Arai to conclude that the margin of appreciation doctrine can be described as a context-sensitive, policy-standard that helps ensure transitive but steady march towards the formation of “common interpretive culture”. The doctrine can facilitate the piecemeal but conscientious deliberative process of international monitoring bodies, which is predicated on evaluations (a balance of reasons) of appropriate value-factors. In this process, the doctrine finesses the confrontation of the two opposing, dynamic forces immanent in their decision-making policy as regards the minority rights regime: the integrationist trend bolstered by universal values of human

16

Introduction

rights; and the centrifugal force pulling towards distinct values espoused by diverse minority groups. While minorities within minorities has been touched upon by some of the other authors, Baldwin and Malloy address the problem out right, focusing on the position of women (and Baldwin also the LGBT) within particular minority groups. Baldwin gives an overview of the vulnerable position of woman and LGBT within minority groups and the divergent practice of states in this respect. His account of minorities within minorities addresses both the internal oppression and the intersectional discrimination they suffer from ‘external’ sources. He sets out to identify whether the problems encountered by minorities within minorities is due to lacuna in the existing framework and international legal standards (necessitating new standards) or whether the problems can best be addressed by developing and applying the existing standards to meet the particular problems. This is assessed by first: considering the existing framework of minority rights and anti-discrimination in international law, and then looking at specific examples of five key problems for vulnerable groups within minorities and how the existing standards have or have not addressed them. Three of these problems relate to minorities’ apparent claims to be able to discriminate: in the areas of determining their own membership; in the state recognition of personal laws for religious communities which may discriminate on the grounds of gender; and in the right of religious minorities to discriminate on the grounds of sexual orientation. The fourth area is state attempts to restrict headscarves amongst Muslim women in western Europe, in the name of protecting them from what are described as abuses within their religion. The final problem area is how authorities tackle domestic violence in minority communities, as this shows how vulnerable groups within minorities may need special attention. According to Baldwin in addressing the different problems set out above, it does not seem that new actual standards are needed. The long-standing, clear but rarely applied, standard of equality for all regardless of race, gender, sexual orientation or other distinction, should be sufficient in particular when it is understood to mean equality in practice rather than just on paper. In addressing the issues described above though, the standards would benefit from more detail on how to be applied in such situations. As set out above, the specific UN standards for specific vulnerable groups have traditionally said little about intersectional discrimination and vulnerable groups within vulnerable groups, but this is changing. More detailed guidelines on how to deal with issues within the overall standard of equality for all are needed.

Introduction

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Finally, Tove Malloy’s paper seeks to shed light on the complex relation between the human condition causing compounded discrimination of minorities within minorities and international human and minority rights law. It is particularly concerned with the issue of culture in this relationship. First, she gives a brief overview of some of the theoretical issues related to understanding, regulating and adjudicating compounded discrimination. Next, the current international approach to eliminate compound discrimination is analysed. This is followed by a discussion of the problems facing universal legal standard-setting in terms of substantive rights of members of minorities and infringements of these. She puts her analysis in perspective by examining different systems of justice and equality in relation to multiple disadvantage. In the process she addresses the intersectionality of structural and cultural disadvantage as well as the dilemmas that cultural discrimination poses to public governance. Finally she examines some of the possible remedies suggested by scholars to overcome these cultural dilemmas. In concluding, she offers a modest idea of how to mainstream against compounded discrimination in universal legal standard-setting as well as a proposal for how universal legal standards might adopt a richer notion of culture in future standard-setting.

Annexes – selection of international documents At first sight the Annexes may seem rather lengthy. Nevertheless they are considered appropriate as the documents included provide excellent insights about the way in which and extent to which the themes addressed in this edited volume are taken up and reflected in the practice of the relevant supervisory mechanisms. The greatest part of the Annex concerns the practice of the international organizations covered by the first section. The documents selected reveal the reach of the HCNM and UNIEMI’s activities in relation to minority protection, while also revealing their practice in relation to new minorities and internal minorities. At the same time the HCNM documents provide a lucid overview of the approaches adopted by the HCNM, as well as the limits of the ‘pressure’ he can bring to bear on governments while revealing the broad variety of themes that are addressed. The documents taken up for the EU give access/include documents that are not widely circulated or taken into consideration when evaluating the EU’s internal position towards minorities and minority protection. The documents concerned are made by groups of experts, and call (in several degrees of urgency) on the EU to improve its reputation while offering guidance on how this could be done.

18

Introduction

In addition to the information on policies and practices towards new minorities and minorities within minorities that can be gleaned from the aforementioned documents, the Annex also includes several relevant General Comments/Recommendations of two UN treaty bodies, more particularly the Committee on the Elimination of all forms of Racial Discrimination (on gender related dimensions of racial discrimination and on non-citizens) and the Committee on the Elimination of all forms of Discrimination against Women (on women migrant workers). As these supervisory mechanisms concern minority neutral instruments, the protection they offer for vulnerable groups within minorities arguably confirms the importance and potentially important protection that can flow from such instruments for minority protection and the protection of vulnerable groups more generally. It is hoped that this rich volume will invite and stimulate constructive and critical thought on minority protection, while contributing to the on-going debates and discussions. Most of all, I hope this volume will set the scene for a promising new Series.

Part I Institutional Focus

‘The EU, Double Standards and Minority Protection’: A Double Redefinition and Future Prospects Kristin Henrard1 Introduction A complaint of so-called double standards has regularly been voiced in relation to the EU’s policy on minority protection. This contribution sets out to redefine the accusation by putting it into a broader perspective pertaining to minority protection, while also touching on additional levels of (seemingly) double standards. Talk in terms of double standards is not neutral in the sense that it refers to the use of differential standards, it always has a connotation of illegitimacy, or at least unreasonableness. Hence, the addressees of the accusation will feel the need to counter this allegation either by showing that there is actually no differential treatment or by justifying (trying to justify) a difference in treatment. The complaint that the EU adopts double standards regarding minority protection is mostly heard and connected to different approaches externally versus internally. This differentiation became increasingly problematic when it was applied to the enlargement process, and explicit demands of minority protection were included in the accession conditions. In this respect it is important to have a good understanding of what minority protection is all about and what standards can be considered relevant in this respect. This contribution will demonstrate that it is possible to counter the allegation of double standards (external v internal) to some extent by showing that de facto the differential treatment is less stark as it seems at first sight. A central consideration here is the importance of distinguishing between minority specific and non-minority-specific rights (policies and practices) as possible avenues of minority protection. Arguably the current focus internally seems to be on non-minority-specific policies. The actual contribution to minority protection depends then on the implementation, which needs to be ‘minority conscious’. This contribution analyses the developments in the 1

Professor Minority Protection and Associate Professor Constitutional Law, Erasmus University Rotterdam.

Kristin Henrard, Double Standards Pertaining to Minority Protection, pp. 21–70. © 2010 Koninklijke Brill NV. Printed in the Netherlands.

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implementation of these policies while highlighting and clarifying the different degrees to which these non-minority-specific instruments are implemented in a minority conscious way. Tracing the developments in this regard and setting out to identify development lines, by linking it to other developments in the EU as well as understandings and visions about European integration and European identity is arguably important to gauge the status quo and especially the future of an (emerging) internal minority protection policy for the EU. Furthermore the assessment of the implementation of the various nonminority-specific policies demonstrates that internally there are differential standards, more particularly in relation to different groups of ‘minorities’, European citizens and third country nationals being two of the distinctive categories. Allegations of double standards in this respect are not easily countered by negations of differential treatment. The challenge seems rather to lie in the identification of possible justifications or at least explanations for these differences. Arguably, these differentiations can be related to (if not fully justified by) the underlying (restricted) vision of Europe, European identity and developing ideas about (the reach of) European integration. Notwithstanding various flaws in the current internal minority protection level in the EU, and the doubts about the wholeheartedness of the minority protection policy, arguments can be put forward why in the future more rather than less minority conscious measures can be expected.

Overview In order to address allegations about double and thus differential standards in minority protection concerning the EU, it is important to set out the basics of minority protection and reflect on the meaning of the concept ‘minority’. This framework then enables the identification of various layers of differential standards concerning minority protection in the EU. Subsequently the growing awareness about minority protection and its different avenues is traced throughout the monitoring exercise of the accession process. The bulk of the contribution then goes on to analyse the internal implementation of in se minority-neutral policies, distinguishing several strands, while demonstrating their close interrelationship: non-discrimination, social inclusion, integration, human rights and cultural diversity. As it stands, the overall assessment of minority protection in the EU cannot be entirely positive, which seems largely due to a lack of political will flowing from a restricted vision about the goal of European integration (and European identity). It is nevertheless possible to end on a positive note concerning the

‘The EU, Double Standards and Minority Protection’

23

future prospects of internal EU minority protection, in view of the close interrelation with other developments within the Union that can only proceed and get stronger.

1. EU and minority protection at first sight: the basics of minority protection When a complaint is voiced about the EU maintaining double standards on minority protection, the first thing that comes to mind concerns the inclusion of an obligation to respect minority rights in the accession criteria for candidate states2 while no such demands are made towards the ‘existing’ member states. One could broaden this internal versus external double standards by pointing out that the EU also imposes on third states obligations to respect minority rights. When one focuses on minority specific rights, in the sense of rights granted to persons belonging to minorities, this complaint is correct.3 There are in EU law no explicit demands4 on the member states to subscribe to particular 2 3

4

See infra for further information and references. This positive duty to protect minorities and promote diversity needs to be contrasted to the extent to which it is possible to justify certain restrictions to the fundamental (economic) freedoms of the EC Treaty in order to protect particular minorities and (cultural, religious and/or linguistic) diversity within the national territory. The case law of the ECJ demonstrates that the protection of minority rights and diversity are accepted as legitimate aims of measures that entail restrictions on the fundamental freedoms but that the Court is rather strict in its assessment of the required proportionality (eg. C 368/95 Familia press: safeguarding pluralism in Austrian media, para 24; C 379/887, Groener, para 19 and 23; C 281/98 Roman Angonese v Cassa di Risparnio di Bolzano, para 43–44). In line with the protection against discrimination on the basis of EU nationality and the related common market rational, it is equally essential that these special protective measures are not confined to one’s own nationals (C 274/96, Bickel and Franz, para 31). See also the article by Gabriel van Toggenburg, ‘The EU’s ‘linguistic diversity’: Fuel or Brake to the Mobility of Workers’, in: A.P. Morriss & S. Estreicher (eds.), Cross-Border Human Resources, Labor and Employment Issues, Kluwer 2005, especially where he discusses ‘linguistic rights versus linguistic duties: the court between free movement and diversity’, 694–714. It can be noticed though that minority protection issues also played in earlier instances of enlargement, but then of a totally different nature. In the first enlargement the application of Community law was limited to particular territories of the acceding states in order to preserve local identities (and thus also the identity of the minorities living in there territories): see Protocol no 3 on the Channel Islands and the Isle of Man to the Act concerning the Accession to the EC of the Kingdom of Denmark, Ireland, the Kingdom of Norway and the Kingdom of Great Britain and Northern Ireland, article 2 (1972 OJ (L73) and Protocol no 2 on the Faroe Islands, 1972 OJ (L73) 163 article 1. While these special measures also stripped

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minority rights, as they are for example enshrined in the Framework Convention for the Protection of National Minorities (FCNM). Similarly, the ECJ has not (yet) screened the actions of the EU institutions or the member states (when operating in the field of EU law) in terms of compliance with minority specific rights.5 Furthermore, several of the traditional member states have not adopted specific legislation and policies to ensure comprehensive minority protection, some because there would be no minorities in their territory.6 There are even still a few of the ‘older’ member states, like Belgium, France, and Greece, that outright refuse to ratify the FCNM. In this light it is everything but self-evident that during the accession monitoring procedure the candidate countries were obliged to ratify the FCNM, while this convention also turned out to be the central benchmark for the evaluation by the European Commission of policy and legislative developments of these countries in terms of the accession criterion concerning minority protection. In some of these countries there were glaring ethnic conflicts or at least serious tensions between various population groups, and one could understand why the EU would not want volatile states among its member states. Still, especially when this concern would explain the requirement for

5

6

the minorities concerned of important community rights, the special measures adopted during the fourth enlargement in favour of the Sami people and to a lesser extent the Swedishspeaking population of the Aland Islands did not have this negative aspect (see Protocol no 2 on the Island Islands and Protocol no 3 on the Sami People, Act concerning the Conditions of Accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, art. 1–2). The latter measures provided protection of traditional activities, culture and linguistic diversity, while saving the populations concerned from unwanted effects of the Common Market (see inter alia G.N. Toggenburg, ‘Minority Protection in a Supranational Context: Limits and Opportunities’, in G.N. Toggenburg (ed.), Minority Protection and the Enlarged European Union, Open Society Institute 2004, 24). In the latter respect, one could argue that the minority groups obtained exemptions from the general (EU) rules aimed at preserving their separate identity. Arguably this amounts to internal minority protection measures. It should furthermore not be forgotten that the EU got involved in protecting minorities in particular member states on a few occasions, notwithstanding the fact that this was accidental and not expressly aimed at minority protection (that was not THE goal of the action undertaken). The Special Support Program for Peace and Reconciliation in Northern Ireland should be mentioned in this respect, as well as the ‘démarche against Austria after the inclusion of Jorg Haider’s FPO into the coalition government in 2000: see also D. Kochenov, ‘A Summary of Contradictions: An Outline of the EU’s Main Internal and External Approaches to Ethnic Minority Protection’, Boston College International and Comparative Law Review 2008, 18. For a succinct overview of the few ECJ judgments so far where national initiatives to protect minorities were evaluated, set against the economic freedom rights central to the construct of the internal market, see infra (discussing Groener, Bickel/Franz and Angonese). The position of France and Greece are well known in this respect.

‘The EU, Double Standards and Minority Protection’

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candidate states to respect the rights of minorities, it is difficult to understand why this would not also be important for ‘older’ member states. Indeed it cannot be denied that several of them have known and know ethnic minority tensions. In this respect not only the Basque region in Spain comes to mind, or the tensions in Northern Ireland, but also the more latent conflicts in Belgium.7 Acknowledging this discrepancy, it is still possible to take a broader and more nuanced perspective in terms of standards that are imposed on all member states. The perspective is broader, because it is not confined to ‘minority rights’ and considers the broader notion of minority protection. This implies that standards and policies that de facto contribute to minority protection, while not being minority-specific are also included in the evaluation. This simultaneously leads to a more nuanced assessment. There is indeed broad albeit not total agreement that an adequate system of minority protection entails two (interrelated) strands: on the one hand the prohibition of discrimination (in combination with general human rights) and special rights for persons belonging to minorities on the other. More generally these two strands can be redefined as non-minority-specific and minority specific standards respectively. The human rights of special relevance for minorities would then be rights that protect identity characteristics, like the freedom of religion, or rights that protect and promote the expression and manifestation of a minority identity, thus contributing to its consolidation and promotion, like the freedom of expression, of association, the right to education etc.8 The former category would arguably also include policies that are not explicit in terms of human rights but that would contribute to the accommodation of population diversity, and more specifically identity related diversity like linguistic, religious and cultural diversity. The adequacy of a particular system of minority protection is evaluated in terms of the two foundational principles of minority protection, namely the right to respect for identity and substantive equality. Consequently, it matters how these standards, and particularly the non-minority-specific ones, are interpreted in this regard: the prohibition of discrimination should be sufficiently open to substantive equality concerns while sufficiently broad to cover

7

8

See also B. de Witte, ‘The European Community and its Minorities’, 174 in: C. Brölmann (ed.), Peoples and minorities in international law, Martinus Nijhoff 1993, 167–185. See inter alia G. Pentassuglia, ‘Minority Issues as a Challenge in the European Court of Human Rights: A Comparison with the Case Law of the UN HRC’, German Yearbook of International Law 2004, 401–451; See also K. Henrard, ‘A patchwork of ‘successful’ and ‘missed’ synergies in the jurisprudence of the ECHR’, in: K. Henrard & R. Dunbar (eds.), Synergies in Minority Protection, Cambridge University Press 2008, 314–364.

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identity questions and the other minority neutral policies should have adequate regard to identity concerns of persons belonging to minorities. In short this concerns the degree to which these policies are implemented in a minority conscious way. What matters in terms of the double standards complaint is that it is generally understood that also non minority specific instruments and policies can be important for minority protection (depending on their interpretation and implementation). When taking this broader approach to minority protection, there are several non-minority-specific EU policies and even standards imposed on all member states that are relevant in terms of minority protection because they have potential to contribute to minority protection: the non-discrimination policy, the related social inclusion policy, human rights as general principle of EC law, and the cultural and linguistic diversity policy.9 Another policy that needs to be taken into account because of its potential impact on minority protection is the EU’s integration policy. While the EU cannot be equated with a state, it is undeniable that it increasingly develops state like features. Its development of an integration policy aimed at particular groups of persons, instead of the usual focus on ‘European integration’ referring to the integration of the member states, can be understood in that light. There is surprisingly little literature to be found on the meaning of the term ‘integration’, as if it is assumed that the concept integration in itself is clear.10 At most one finds different models of integration, mainly touching on whether or not and the degree to which this would go hand in hand with assimilation.11 9

See also B. de Witte, ‘The Constitutional Resources for an EU Minority Protection Policy’, in: G. Toggenburg (ed.), The protection of Minorities and the enlarged European Union, LGI Books 2004, 107–124; B. de Witte & E. Horvath, ‘The many faces of minority policy in the European Union’, in: K. Henrard & R. Dunbar (eds.), Synergies in Minority Protection, CUP 2008, 368–376; G. Toggenburg, ‘A Rough Orientation through a Delicate Relationship: the European Union’s Endeavours for its Minorities’, in: S. Trifunovska, Minority Rights in Europe: European Minorities and Languages, TMC Asser Press 2001, 205–220; G. Schwellnus, ‘Much ado about nothing? Minority Protection and the EU Charter of Fundamental Rights’, in: Constitutionalism Web-Papers, ConWEB no 5/2001. 10 For an alternative approach, which considers integration as one particular mode of minority incorporation, in addition to separation, assimilation, the millet mode, proceduralism and pluralism, see D. Kostakopoulou, The Future Governance of Citizenship, Cambridge University Press 2008, 173–180. 11 See inter alia S. Carrera, ‘Integration’ as a Process of Inclusion for Migrants? The case of LongTerm Residents in the EU’, in: H Schneider (ed.), Migration, Integration and Citizenship: A Challenge for Europe’s Future, Forum Maastricht 2005, 115–123; Ch. Jopke & E. Morawska, ‘Integrating Minorities in Liberal Nation-States: Policies and Practices’, in: Ch. Jopke & E. Morawks (eds.), Toward Assimilation and Citizenship: Immigrants in Liberal Nation-States,

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Arguably and according to the dictionary integration is about being part of a bigger whole. For integration to be complete, for a group to feel fully part of the wider society, it would seem to be important that the inclusion is successful in all spheres of public life, not only in relation to socio-economic life, but also cultural and political life.12 There seems indeed increasingly also attention for the role of culture in relation to integration.13 For the EU, as for national states, a concern that minorities with their separate, distinct identities integrate within the (national/European) society is understandable.14 It is equally important that this integration does not amount to forced assimilation, exactly because of the right to respect for the minority identity. In other words integration may be a concept without precise and generally accepted definition, it should not concern policies that oblige minorities to forego their own identity. For the integration to be successful it would seem furthermore important that substantive equality considerations are fully taken into account. Exactly because it concerns policies and standards that are not minority specific, the extent to which the implementation (and the concomitant supervision) of these policies occurs in a minority conscious way and is attentive to particular minority needs is essential to determine their effective contribution to minority protection. Put in terms of the two foundational principles of minority protection it would matter to what extent a measure would contribute

12

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Palgrave 2003, 1–15. See also R. Penninx, ‘Het dramatisch misverstand’, in: J.E. OverdijkFrancis & H.M.A.G. Smeets (eds.), Bij nader inzien: het integratiedebat op afstand bekeken, Bohn Stafleu Van Loghum 2000, 28–42, distinguishing between three levels of analysis of integration processes: that of individuals, of organizations and of institutions. Some documents focus explicitly on social integration (and social inclusion), see inter alia Social Integration: Approaches and Issues, UNRISD Briefing Paper no 1, World Summit for Social Development, 1994. See also R. Stroble, ‘Social integration and inclusion’, Blackwell Encyclopedia of Sociology 2007. For a lucid description of the differences and the interrelations between cultural integration and socio-economic integration, see inter alia L. Hagendoorn, J. Veenman & W. Vollebergh, ‘Cultural Orientatio and Socio-Economic Integration of Immigrants in the Netherlands’, in: L. Hagendoorn, J. Veenman & W. Vollebergh (eds.), Integrating Immigrants in the Netherlands: Cultural versus Socio-Economic Integration, Ashgate 2003, 1–15. See inter alia the Report undertaken for the EC by the Centre for Public Policy, Northumbria University, UK (more specifically by R. Woods, L. Dobbs, Ch. Gordon, C. Moore & G. Simpson), Report of a Thematic Study using Transnational Comparisons to Analyse and Identify Cultural Policies and Programmes that Contribute to Preventing and Reducing Poverty and Social Exclusion, 2004, 223. See also B. Parekh, A New Politics of Identity: Political Principles for an Interdependent World, Palgrave 2008, 95.

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to substantive equality for and/or the right to respect for identity of persons belonging to minorities. In this respect, it is important to underscore the argument (more fully developed elsewhere)15 that the more the interpretation and application of the non-minority-specific norms embraces substantive equality and the right to respect for the minority identity, the more its relative importance in relation to the minority specific rights would grow. In other words, in so far as the non-minority-specific rights would cater for the special needs of minorities in line with the demands of substantive equality and the right to respect for the minority identity, the less it would matter that (at present) the EU does not have minority specific standards for its internal policy.

2. The definition of minorities, a nationality requirement and the EU When one intends to evaluate whether or not implementation of neutral measures is minority conscious, it seems important to know what a minority is, what population groups would qualify as such. It needs to be acknowledged that no generally accepted definition exists of the concept ‘minority’. Nevertheless, it is possible to identify certain basic features that population groups should possess in order to qualify as a minority: having separate ethnic, religious and/or linguistic characteristics, being less numerous than the rest of the population, being non-dominant and having the desire to hold on to that own, separate identity. Admittedly the exact meaning of these characteristics is not undisputed. The most strongly debated feature at the moment concerns the traditional requirement that members of minorities should have the nationality of (and the related requirement of long lasting ties with) the country of residence. This translates into the question whether and to what extent immigrant groups would be entitled to minority specific rights. While no legally binding position exists in this respect, it cannot be denied that the practice of supervisory bodies arguably denotes a trend to let go of the nationality requirement, at least as a stringent, set requirement.16 The dominant

15

16

K. Henrard, ‘The Added Value of the Framework Convention for the Protection of National Minorities: The Two Pillars of an Adequate System of Minority Protection Revisited’, in: A. Verstichel et al. (eds.), The Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument?, Intersentia 2005, 101–118. The HRC explicitly denounces not only the nationality requirement in its general comment on article 27 ICCPR but also proclaims that the length of residence in the state is irrelevant (para 5.2). Its inclusion of visitors is unrealistic and difficult to defend though. The Venice Commission of the Council of Europe takes a more modulated approach in relation to the

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‘academic’ position seems to consider that minority rights are a particular category of human rights and as such not dependent on nationality. The few rights that restrict the entitlement to nationals are explicit about that. Similar arguments can be made about the related requirement that the persons belonging to a minority should have long lasting ties with the country of residence.17 When contemplating the minority specific rights there are no explicit restrictions in terms of nationality. Nevertheless, some rights are limited in terms of traditional residence (and residence in substantial numbers). Still, also here this seems to be the exception, confirming the rule that this enduring residence is in principle not relevant. Consequently it can be put forward that the criteria of nationality and long lasting residence should not be relevant for the definition question. The criteria concerned arguably may have a role to play in relation to the (degree of) effective enjoyment of particular rights.18 In line with the practice of other international organizations19 the EU has not taken an explicit stance on what the organization considers to be a minority. While this may seem less problematic to the extent that its internal policies of relevance are all non-minority-specific, it remains unfortunate to the extent that these policies are implemented with special regard to ‘minorities’. In the external sphere where the demands are in terms of minority specific rights a more explicit position seems called for. Admittedly some inferences can be made on the basis of the actual practice of accession monitoring. Unfortunately there does not seem to be an established and considered position, as there are

17 18 19

nationality requirement in its 2006 report on non-citizens and minority rights. While it does not go as far as stating that the starting point should be that nationality is irrelevant for the qualification as minority and the enjoyment of minority rights, implicitly it acknowledges this position: the Commission underscores that while the right to vote and be elected can be limited to nationals, the limitation must be interpreted restrictively (par. 42–43, see also par. 39 in fine and par. 70 and 75). In other words limiting minority rights to nationals of the state of residence is the exception to the rule, as is the case for general human rights (par. 138–143). The supervisory practice in terms of the FCNM confirms this position, since the Advisory Committee (AC) increasingly invites states to extent its protection to non-citizens (at least on an article by article basis) (par. 34 and 55). See also the articles by Eide and Medda-Windischer in this volume. See also Venice Commission report 2006, para 103, 125. See inter alia K. Henrard, Devising an Adequate System of Minority Protection: Individual Human Rights, Minority Rights and the Right to Self Determination, Nijhoff 2000, 24–30, who notes the emergence of a more pragmatic approach especially at European level in the OSCE and Council of Europe (the practice of the AC in terms of the FCNM) but also at UN level (the activities of the UN Working Group of Minorities).

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contradictory indications. As will be shown infra, it remains ultimately a matter of speculation what exactly particular phrases are meant to convey and thus what the actual personal reach is of the minority protection policy of the EU.

3. Two additional layers of alleged ‘differential’ standards on minority protection Exactly this definition question shows how relevant it is to note that in addition to the external v internal divide there are also complaints about differential assessment among the candidate countries.20 Furthermore, the internal ‘practice’ as evaluated infra appears to reveal a different approach towards traditional as opposed to immigrant minority groups. As regards the former, it has been underscored that the European Commission seemed to take as a base line (in its opinions of most candidate countries), albeit mostly implicitly, that minority groups are supposed to consist of nationals of the country concerned. In these candidate countries the population groups that lacked nationality were migrants, arguably a very different reality indeed. The Commission made in any event no explicit comments when states restricted minority rights provisions to nationals.21 In Estonia and Latvia however, the Commission was confronted with a situation of state succession and the implications of the nationality legislations adopted on independence which disenfranchised several ethnic Russians, even when they had lived their entire life in these countries. In this specific context of state succession it seems indeed important that state legislation on the acquisition of nationality is not discriminatory and/or skewed.22 Hence, it is not

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For a more detailed description of the differences in scrutiny among the candidate countries, see Kochenov 2008, 22. See also A. Wiener and G. Schwellnus, ‘Contested Norms in the Process of EU Enlargement: Non-Discrimination and Minority Rights’, Const. Web Papers 2004/2 (les1.man.ac.uk/conweb), 15. While the Commission promoted the spirit of inclusion and tolerance in relation to the other countries (Even within this ‘group’ of candidate countries there was no uniform level of scrutiny and pressure: see inter alia Wiener & Schwellnus 2004, 15 on differences in the Commission’s analysis of Poland, Hungary and Romania), in Estonia and Latvia the Commission seemed to gloss over policies of assimilation and exclusion of many spheres of life of the Russian speaking community (See also J. Hughes, ‘ “Exit” in Deeply Divided Societies: Regimes of Discrimination in Estonia and Latvia and the Potential for Russophone Migration’, Journal of Common Market Studies 2005, 740–746.). See in relation to the Czech Republic M. Hofmann, ‘The 2001 Law on National Minorities of the Czech Republic’, in: European Yearbook of Minority Issues 2001, 624. Agenda 2000-Commission Opinion in Latvia’s Application for Membership in the European Union, EC Doc/97/14 at 18 (July 15, 1997) and Agenda 2000-Commission Opinion on

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surprising that in this setting the Commission emphasized the need to adapt the nationality legislation.23 The reports on accession monitoring reveal that there is scant attention to the position of migrants, and if there is it is mostly confined to problems of detention and related problems of illegal migrants under the subheading civil and political rights.24 In relation to three countries migrant issues are addressed under the minority heading but actually only in relation to one of them, Malta, one can make meaningful deductions. The problems identified in Turkey and Slovenia concerned actually the Roma identity of immigrants and not adverse treatment against immigrants as such.25 In the 2000, 2001 and 2002 reports on Malta it is stipulated under the minority heading that no problems have been reported in relation to the situation of immigrants.26 This clearly implies that according to the European Commission immigrant groups could qualify/ qualify as minorities. As immigrant groups are arguably present in most countries, it is rather striking that in none of the other reports a similar statement can be found. Furthermore, it seems that in none of the reports that are more recent than 2005 any reference was made to migrants in the section examining the obligations in terms of ‘human rights and the protection of minorities’. This can be contrasted with the development of internal policy (described and analysed more fully infra) in terms of non-discrimination and especially social inclusion and social protection where immigrant groups are specifically targeted. Nevertheless, also in relation to these internal policies arguments can be put forward that immigrants are seen as a different reality than minorities.

23

24

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Estonia’s application for Membership in the European Union, EC Doc/97/12, at 18 (July 15, 1997). This stance was repeated in the regular reports that followed. According to Pentassuglia the position taken in relation to these countries would reflect a rather instrumental approach (aiming at securing international and internal stability) rather than the Commission demanding an overall new and broader concept of minority: Pentassuglia 2001, 21. Regular Report on Hungary COM(2002)700 final, 28; Regular Report on Slovenia COM(2002)700 final 25; Regular Report on Hungary SEC(2001)1748 20; Regular Report on Slovenia SEC(2001)1755, 19; Regular Report on Latvia SEC(2001)1749 21; Regular Report on Latvia 2000, 19; Regular Report on Hungary 1999, 13–14; Regular Report on Latvia 1999, 15, Regular Report on Romania 1999, 16; Regular Report on Cyprus 1999, 10. In the 2004 and 2005 reports on Turkey it was considered to be problematic that Roma could not enter Turkey as immigrants, they would not be accepted as such, while in the 1999 report on Slovakia the problematic situation of the Roma in that country was tied to Slovak immigrants of Roma origin requesting asylum in Western-European countries. Regular Report on Malta 2002, COM(2002)700 final, 21; Regular Report on Malta 2001 SEC(2001)1751, 16; Regular Report on Malta 2000, 12.

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There are numerous (recent) references to immigrants and (ethnic) minorities side by side. Still the fact that they are often mentioned side by side does indicate the acknowledgement that they are similar in several respects, at least in their disadvantaged position. It remains to be seen whether the EU will follow the ‘development’ of the supervisory mechanism of the FCNM in this respect. The Advisory Committee softened the nationality requirement for ‘minorities’ first of all in the context of state succession but is gradually but surely transposing the reasoning to other instances of non-citizens, also to immigrant groups. The second additional layer of differential standards and approaches in minority protection is related to a more general suggestion as way out of the ongoing debate about immigrants and minority rights. This suggestion would be that one should not focus on the question whether or not immigrant groups could possibly qualify as minorities. Instead one should have in inclusive approach at the conceptual level but identify differences as to the rights immigrant groups would be entitled to (arguably less extensive or at least less strong). Following this line of thinking it would be no problem in se to have a different approach towards immigrant minorities. The positive state obligations, especially those with financial obligations, would simply be a lot less demanding in relation to immigrant groups. As the internal EU policies are not minority specific, it is not strange not to find an explicit position on what minorities are for internal policy purposes. Hence one needs to compare the wording and focus of the respective policy documents and data reports. Unfortunately there is not one clear position that emerges: often one finds references to migrants/immigrants and minorities side by side (often the case for Commission reports), sometimes national minorities and ethnic minorities, the latter referring to immigrants (several EP documents), sometimes immigrants and ethnic minority groups side by side (some FRA documents). The latter use of concepts could imply that ethnic minorities would refer to traditional minorities or even that immigrants are not considered ‘minorities’ at all. Considering the qualification of Muslims as a religious minority (also by the EU’s Fundamental Rights Agency (FRA) ) and the fact that extensive groups of Muslims are immigrants, it seems unlikely that immigrants would entirely be excluded from the qualification ‘minority’.27 One thing needs to be highlighted though: in the EU the nationality question is rather intricate since the ‘foreigners’ in particular EU countries need to

27

Compare in this respect p. 28 and 35 of the FRA report Trends and Developments 1997–2005 combating Exclusion and Racial Discrimination and Promoting Equality in the EU.

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be further subdivided in those that are EC citizens and those that are so-called third country nationals (TCN). This distinction is relevant across the entire EU competence scale. A differentiation in rights between these two categories seems justified in so far as it can be tied to the entire logic and goal of the European integration process. Hence, it is important in the following analysis of the various relevant EU policies to check whether different approaches have been adopted (at least with different emphasis). It should in any event be highlighted that when one finds a reference to ‘migrants’ or ‘immigrants’ in EU documents, that always refers to TCNs.

4. External demands and monitoring: growing awareness of minorities, minority rights and minority protection It is common knowledge that the 1993 Copenhagen accession criteria included among the political criteria the need to ‘guarantee human rights and respect and protect minorities’.28 It should be noted that at this stage the explicit reference to minorities does not go hand in hand with an explicit demand in terms of minority specific rights. It could even be opined that this juxtaposition indicates that minority protection is something different from human rights. In other words, this criterion could be understood as referring to the need to respect human rights and the extent to which these rights matter for minority protection. It could also be read as indicating that minority protection is something different or at least additional to human rights. Here one needs to make a distinction between human rights as the overarching human rights paradigm and human rights as non-minority-specific rights. It is generally accepted

28

Note that already before the 1993 accession wave minority protection featured in the EU’s external policy. This was particularly noticeable in relation to the break up of Yugoslavia, where it used respect for minority rights as a criterion for the recognition of the new states: see the 1991 Declaration on the Guidelines on Recognition of new States in Eastern Europe and the Soviet Union. The exact formulation of the condition already revealed that there were no EU standards on the topic: ‘guarantees for the rights of the ethnic and national groups and minorities in accordance with the commitments subscribed in the framework of the CSCE’. See also M.A. Martin-Estebanez, ‘The Protection of National or Ethnic, Religious and Linguistic Minorities’, in: N.A. Neuwahl & A. Rosas (eds.), The European Union and Human Rights, Martinus Nijhoff 1993, 154–155. Furthermore, the requirement to respect minority rights was also enshrined in the Association and Co-operation Agreements with the Central and Eastern European states (and is maintained in the Stabilisation and Association Agreements with the South Eastern European states): see inter alia A. Biscoe, ‘The European Union and Minority Nations’, in: P. Cumber and S. Wheatley (eds.), Minority in the ‘New’ Europe, Kluwer 1999, 89–104.

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that minority specific rights are part and parcel of the broader human rights framework.29 It should in any event be underscored that according to the European Commission itself in its regular reports of 2002 the need to respect human rights (as enshrined in article 6 EU) encompasses the requirement to respect minorities (as one of the political accession criteria).30 To some extent the European Commission had no choice but to take this position, at least if it wanted to respect the Copenhagen criteria and maintain a certain level of continuity in accession monitoring: article 49 with the membership criteria referred back to art 6 which did not mention minorities and minority protection explicitly. While in 1993 an explicit invitation was issued to the Central Eastern European countries, the enlargement process was only launched in 1997 with actual monitoring of these accession criteria by the European Commission resulting in reports from 1998 onwards. It should be pointed out that the Commission’s assessment of these countries devotes considerable attention to minority issues.31 The relevant parts of the regular reports touch on several aspects of crucial relevance to minorities and minority protection, and are often rather lengthy, containing numerous critical evaluations.32 29

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The minority rights standards themselves explicitly acknowledge that minority specific rights are part and parcel of the broader category of human rights (in relation to the UN, reference can be made to the preamble of the UN 1992 Declaration of the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, while for the Council of Europe regards should be had to article 1 FCNM. Finally the OSCE’ Final Helsinki Act, the Charter for Paris as well as the Copenhagen Document (para 30) acknowledge that respect for rights of persons belonging to minorities must be fully respected as part of universal human rights (see also G. Pentassuglia, ‘The EU and the Protection of Minorities: The Case of Eastern Europe’, EJIL 2001, 13, 20). See footnote 3 of the Commission’s Regular Reports 2002, COM(2002)700 final (to be found at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52002DC0700:EN:HTM L). See also the European Commission Enlargement Strategy paper of 2003, COM(2003)676 final (to be found at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52003 DC0676:EN: HTML). See also F. Hoffmeister, ‘Monitoring Minority Rights in the Enlarged European Union’, in: G. Toggenburg (ed.), Minority Protection and the enlarged European Union: The Way Forward, OSI/LGI 2004, 88. G. Pentassuglia, ‘The EU and the Protection of Minorities’, 20. See also F. Hoffmeister, ‘Changing Requirements for Membership’, in: A. Ott & K. Inglis (eds.), Handbook on European Enlargement, Asser 2002, 95. Nevertheless, it remains striking that the identification of numerous problems and criticisms in this regard does not necessarily go hand in hand with a conclusion of non-compliance with the political accession criteria (see inter alia J. Hughes & G. Sasse, ‘Monitoring the Monitors: EU Enlargement Conditionality and Minority Protection in the CEECs’, JEMIE 2003/1,14) Also here arguments have been put forward about differential levels of scrutiny in the sense

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When researching the regular (accession monitoring) reports it should be noted that the relevant political criterion (on human rights and minorities) has always been addressed under the heading ‘human rights and the protection of minorities’, mirroring the wording of the Copenhagen criteria. This heading always has the following three sub-headings: 1. ‘civil and political rights’, 2. ‘social, economic and cultural rights’, and 3. ‘minority rights and the protection of minorities’.33 In other words from the start the European Commission has read the reference to ‘respect and protect minorities’/ ‘minority protection’ in the Copenhagen criteria as implying minority specific rights, or rights specifically granted to persons belonging to minorities. As was hinted at before, this was not a foregone conclusion. The subheading ‘minority rights and the protection of minorities’ can in any event be read as indicating that minority protection is wider than minority (specific) rights and would also concern protection on the basis of general (non-minority-specific) rights. When reading the regular reports, it is striking that there seems an attempt to put every rights problem of minorities under this heading, and thus not under the headings of ‘civil and political rights’ or ‘economic, social and cultural rights’.34 This arguably supports the reading that non minority specific human rights are an essential component of minority protection, while not all (interpretations of these) human rights are equally supportive of the right to respect the minority identity. At the same time the reports confirm that it is impossible to actually make watertight divisions between these three categories of fundamental rights. This is actually not surprising as persons belonging to minorities are also entitled to the general (non-minority specific) human rights, while, as was indicated before, several of these general human rights are of special relevance for minorities and minority protection. Problems in relation to these rights can conceptually be addressed both under the heading of the general human right concerned and under the heading focusing on minorities. This is to some extent also reflected in the regular reports. In several reports one finds references to racism against the Roma minority under ‘civil and political rights’.35

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that some countries track record would be evaluated more strictly, in a more demanding way than others, see supra footnote 16. B. de Witte & G.N. Toggenburg, ‘Human Rights and Membership of the EU’, in: S. Peers & A. Ward (eds.), The European Union Charter of Fundamental Rights, Hart 2004, 67. Inter alia EC, Regular Reports 2008, Albania and Kosovo, paragraph 2.2; See also Strategy Paper 2008 pp 5. Inter alia EC, Bulgaria Regular Report 2003, paragraph 1.3 and Bulgaria Regular Report 2004, paragraph 1.2.

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Nevertheless, problems of Roma concerning economic and social rights are not mentioned under the heading ‘economic, social and cultural rights’ but under the minority subheading.36 Problems in relation to the freedom of religion as civil-political right and religious discrimination de facto often concern religious minorities, and at times the religious minorities are also explicitly named under the heading ‘civil and political rights’. Hence, throughout the monitoring process the European Commission has been increasingly exposed to the close interrelation between non-minorityspecific human rights and minority protection. As the European Commission is engaged in evaluating in a rather detailed way the candidate countries track record concerning minority protection, it is not unreasonable to expect that it also gets increasingly accustomed to minority talk, having regard to minorities and their special needs. This might in turn have an impact on policy developments for internal purposes in the sense of a slow internalization process of a more explicit minority focus in relation to at first sight neutral policies of the EU. The subsequent analysis will reveal that in several respects the actual activities and implementation of internal EU policies do have special regard for the situation of minorities (while in others not or hardly).

5. Minority Protection in the EU: from indirect to direct protection through mainstreaming? One of the distinctive features of the European Union as international organization is that it only has those competences explicitly assigned to it by the member states. Minority protection is not such a competence. This arguably explains why the EU has not imposed explicit minority protection requirements on the member states, at least nothing in terms of minority specific rights. Nevertheless, there are several explicit competences that could be developed and implemented in a minority conscious way. The following overview will demonstrate the extent to which the institutions of the EU are paying more explicit attention (at least in some respects) to minorities in the exercise of minority-neutral competences. In view of the sequence, an argument can be made that a development of more minority consciousness is, if not induced by, at least in line with the deepening understanding about minority protection through the experiences of accession monitoring in this regard.

36

Inter alia EC, Regular Reports 2005, Serbia and Albania, paragraph 1.2.

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The minority-consciousness development may not be entirely linear, the following analysis will demonstrate that it seems to follow a broader development of the EU, more particularly of a virtual exclusive economically oriented organization to one that embraces social policy concerns. This can be traced in the development of the scope of the prohibition of discrimination as well as the related policy domains of social inclusion. The growing social dimension of the EU and EU competences even extends into the cultural domain, including the promotion of cultural diversity internally. This competence development seems to go hand in hand with a more prominent place for human rights in the EU legal and policy framework. To the extent that these human rights include a broader protection against discrimination and add also duties to respect cultural diversity, they seem more apt to address (cater for) minority concerns and special needs. Nevertheless, the mainstreaming hinted at is far from complete, and several flaws can be identified. These flaws appear intrinsically related to the (core) nature of the organization and its visions of European integration and identity. The original focus on economic competences (and the goal of the internal market) arguably explains the fact that the further competences are removed from economic issues, the weaker they are. Furthermore, the way the more cultural competences are used seems to reflect a particular vision of European integration (and European identity) which is foremost concerned about integration between states, and creating a European identity encompassing the various national identities. Minority consciousness in the development and implementation of the related policies is still at its infancy. Furthermore, the lack of attention for immigrants and their culture (and related cultural diversity) reveals a limited understanding of European identity, namely exclusive of an important section of the European residents. It remains to be seen whether the ongoing influence of the above mentioned triggers will overcome the hurdles. The following analysis of developments in terms of relevant but in se minority-neutral policies distinguishes several strands, while demonstrating their close interrelationship: non-discrimination, social inclusion, integration, human rights and cultural diversity. 5.1. Non-discrimination37 In relation to the prohibition of discrimination, it needs to be acknowledged that this was until the Treaty of Amsterdam vastly insufficient in relation to 37

For an in depth overview and analysis of EU’s non discrimination law, see inter alia H. Meenan (ed.), Equality Law in an Enlarged European Union: Understanding the Article 13 Directives,

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minority protection since only discrimination on the grounds of gender or nationality were proscribed, the latter being confined to nationalities of the EU member states. The prohibition of discrimination appeared not be sought for itself (as an important human right) but in so far as it contributed (directly) to the goal of the common market. However, the ECJ has developed an important line of jurisprudence in which it identifies a principle of equal treatment as general principle of EC law. In terms of that general principle, the ECJ has on occasion also made important statements seemingly embracing a certain duty of reasonable accommodation of religious diversity (and thus the needs of religious minorities).38 The Treaty of Amsterdam added -with the inclusion of article 19 to the Treaty on the Functioning of the EU–5 grounds prohibited discrimination, two of which concern typical minority characteristics: religion and race or ethnic origin. It should furthermore be added that in certain circumstances differentiations on the basis of language can be qualified as indirect racial discrimination, while there is also a considerable overlap between the grounds ‘religion’ and ‘race’.39 It has been argued that this extension of grounds signaled a shift away from a mere economic rational, towards a more social policy perspective.40 As the Treaty of Amsterdam was concluded in 1997, it would be a bit far fetched to relate this shift to the impact of accession monitoring though. Since article 19 is not directly effective, its operationalisation depends on directives implementing it. Council Directive 2000/43/EC of June 29 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (Racial Equality Directive or RED)41 and Council Directive 2000/78/EC of 27 November 2000 establishing a general Framework

38

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CUP 2007; N. Bamforth, M. Malik & C. O’Cinneide (eds.), Discrimination Law: Theory and Context, Sweet & Maxwell 2008. C 130/75 Viven Prais v Council para 19 where the ECJ identifies an obligation to take reasonable steps to avoid fixing a date for a test (competition for a position) which would make it impossible for a person of a particular religious persuasion to take part, but only when the authority was informed in good time. Furthermore in academic discourse there is increasing acknowledgement of the reality of intersectional discrimination, that is discrimination on the basis of multiple grounds at the same time, see also D. Schiek & V. Chege (eds.) European Union Non Discrimination Law: comparative perspectives on multidimensional equality law, Routledge 2009. So far the EU’s regulatory framework pertaining to the prohibition of discrimination does not allow yet to address this reality. See M. Bell, Anti-Discrimination Law and the European Union, OUP 2002, particularly the first chapter. See for a more detailed analysis: K. Henrard, Equal Rights versus Special Rights? Minority Protection and the Prohibition of Discrimination, EC 2007, 71 p.

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for equal treatment in employment and occupation (Framework Employment Directive or FED) of 2000 are certainly important here, as is the draft directive expanding the scope ratione materiae of the latter to be more in line with the RED.42 Indeed, the RED extends the prohibition of discrimination on the basis of race and ethnic origin beyond the employment sphere at large and also covers several dimensions of relevance to social participation like social protection, social advantages, social security, education and (to some extent) housing (article 3). In this respect it has been argued that it covers most governmental action in relation to the welfare state, and is thus bound to have implications of relevance for one’s separate identity. Education is in any event key to identity and the right to identity. It can also be put forward that ‘social advantages’ has been interpreted very broadly by the ECJ in relation to its purported goal of promoting integration, not only economically but also culturally.43 The FED targets discrimination inter alia on the basis of religion but so far has a more limited scope of material application, more particularly confined to employment related matters. In view of the broader protection against discrimination under the RED it is important that particular distinctions on the basis of religion could qualify as indirect racial discrimination.44 The EU Network of Independent Experts on Fundamental Rights confirmed that imposing disproportionate (unreasonable) language proficiency requirements would have a disproportionate negative impact on speakers of another language. This could amount to indirect racial discrimination.45 The preamble of the RED and the FED clearly stipulate that third country nationals can rely on these directives. This is important as it implies that the so-called new, immigrant minorities are covered by this mechanism and its

42

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See attachment to Commission Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Non discrimination and equal opportunities: A renewed commitment, COM(2008)420 final. See also Ch. Brown, ‘The Racial Equality Directive: Towards Equality for All the Peoples in Europe’, Yearbook of European Law 2002, 313–314. Ethnic origin is generally understood as a broad concept, which also refers to language and religion. Hence it can be argued that differentiations on the basis of religion or language could also be considered as direct racial discrimination (in so far as religion or language are indeed intertwined with ethnicity). The famous Groener case (discussed infra) already showed that a general application of language requirements (affecting the free movement of workers) can be denounced as indirectly discriminatory on the basis of nationality, when these requirements do not pursue a legitimate aim and are not proportionate to that objective (Case C 379/87, Groener [1989] ECR 1967, para 19 and 23). Arguably a similar obligation to treat differently situations which are substantively different may be derived from the definition of indirect discrimination in article 2(2)b RED.

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potentially important contribution to minority protection.46 The Fundamental Rights Agency’s special attention for immigrants in relation to discrimination confirms that they are especially vulnerable to discrimination and hence in need of protection. However, the exclusion of differentiations on the basis of nationality (and immigrant status) from the coverage of the RED and the FED (article 3, 2) is arguably problematic as it could shield instances of indirect racial discrimination.47 It is to be hoped that the jurisprudence of the ECJ will ensure that such instances of indirect racial discrimination will be covered.48 An important feature of the RED (as of the FED) is that they contain several provisions aimed at enhancing the effective protection against discrimination, which is especially relevant for minorities as they are often targeted by discriminatory measures and practices. One of these provisions concerns the allocation of the burden of proof.49 In view of the difficulties in proving instances of discrimination,50 it is indeed to be welcomed that the directives provide that once the claimant can establish a presumption of discrimination, the burden of proof shifts to the defendant.51

46 47

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G.N. Toggenburg, ‘The European Union’s Endeavours for its Minorities’, 230–233. See also EU Independent Experts on Fundamental Rights, Thematic Comment no 3, 21. The first substantive judgement on the RED (see also infra) did not really touch on this particular issue, but arguably the reasoning of the Court in relation to the particular facts of the case seems to confirm that confirms that differentiations by private parties on the basis of nationality (‘Moroccans’) or immigrant status are covered by the RED and fall foul of the prohibition of racial discrimination: see footnote 26 in K. Henrard, ‘The first substantive ECJ judgment on the Racial Equality Directive: A strong Message in a Conceptually Flawed and Responsively Weak Bottle’, Jean Monnet Working Paper 09/09. See also G.N. Toggenburg, ‘The Race Directive: A New Dimension in the Fight against Ethnic Discrimination in Europe’, European Yearbook on Minority Issues 2001/2, 238. Article 8(1) RED and article 10(1) FED. I.a. written comments of Interights in Nachova no. 43577/98 and 43579/98, K. Kitching, (ed.) Non-Discrimination in International Law. A Handbook for Practitioners, Interights 2005, 122. Recital 21 RED: ‘the rules on the burden of proof must be adapted when there is a prima facie case of discrimination and for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought’. See also for the prohibition of gender discrimination: recital 17 Directive 97/80 and more generally: R. Belton, ‘Burdens of Pleading and Proof in Discrimination Cases: Toward a Theory of Procedural Justice’, Vanderbilt Law Review 1981, 1205. See also U. Erdal, ‘Burden and Standard of Proof in Proceedings under the European Convention’, European Law Review 2001, 26 SUPP (HUMAN RIGH), 4. See also the Explanatory Memorandum of the Race Directive, COM(1999)566: ‘Normally, the legal burden of proving a case rests on the plaintiff. However, obtaining evidence in discrimination cases, where the relevant information is often in the hands of the defendant, can be very problematic. The Commission therefore proposes to shift the burden of proof

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So far there is not yet a judgement on the FED in relation to the ground religion and only one substantive judgment on the RED.52 The latter case concerns a statement made by a director of a Belgian firm that they would not hire Moroccans to install their security doors because their customers would not want that. The case clearly concerns TCN and the ECJ makes the important clarification that a mere statement exposing discriminatory hiring criteria in itself can amount to an instance of prohibited racial discrimination.53 Unfortunately the Court has not made use of the opportunity to clarify how this would translate in terms of the provisions on the allocation of the burden of proof. It is to be hoped that in future judgments the ECJ will take care to optimize the effective protection against (racial) discrimination even further.54 When evaluating the extent to which the directives further substantive equality, a mixed picture emerges. The explicit inclusion of a prohibition of indirect discrimination is very important indeed since it addresses measures that without differentiating explicitly on a certain ground, (are likely to) have a disproportionate impact on a group defined according to that ground, without objective justification.55 The attention for the underlying reality arguably contributes to the realization of substantive equality. Furthermore, there is an intrinsic relationship between the prohibition of discrimination and a duty to treat differently (to adopt special measures), which is another opening towards substantive equality. The EU Network

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to the defendant in certain circumstances, as has already been done in the case of sex discrimination.’ C 54-07, Centrum voor Gelijkheid van Kansen en voor Racismbestrijding (Centre for Equal Opportunities and Combating Racism) v Firma Feryn NV, 10 July 2008 (hereinafter: ECJ, Feryn or AG, Feryn). ECJ, Feryn, par. 25. For a more extensive analysis, see K. Henrard, ‘The First substantive ECJ judgement on the Racial Equality Directive: a strong message in a conceptually flawed and responsively weak bottle’, forthcoming as Jean Monnet Working Paper. Compare S. Joseph, J. Schultz & M. Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford, 2004), 694 with C. Tobler, Indirect Discrimination: A Case Study into the Development of the Legal Concept of Indirect Discrimination under EC law (Antwerp, 2005), 57. It seems not conceptually helpful to make a strict distinction between different forms of indirect discrimination as suggested by De Schutter (The Prohibition of Discrimination under European Human Rights Law: Relevance for EU Racial and Employment Equality Directives (European Commission, 2005), 16) between measures that have a disparate impact and measures that in themselves appear disadvantageous to the members of a certain category (but have not yet(?) resulted in a disparate impact).

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of Independent Experts on Fundamental Rights confirmed that when it pointed out that instead of using disproportionate (unreasonable) language proficiency requirements, special language classes should be provided to enable the persons concerned to reach the required proficiency.56 In other words, special measures would be needed to avoid a finding of prohibited indirect discrimination.57 In any event there is a steady line of jurisprudence of the ECJ in terms of both the general principle of equal treatment (which it has developed in its case law and which it argues to be embodied in the RED and FED),58 and in terms of the prohibition of discrimination, that when people find themselves in substantially different circumstances, they should be treated differently, unless ‘same’ treatment is objectively justified by the pursuit of a legitimate aim and is appropriate and necessary to achieve that aim.59 It remains to be seen to what extent this line of jurisprudence will indeed be used to enhance minority protection. This also applies to the two other potentially important openings to substantive equality, namely duties of reasonable accommodation and positive action, especially because they are only to a limited extent provided for in the text of the directives. As it stands the FED contains a provision on duties of reasonable accommodation which is confined to persons with a disability (article 5). However the previously cited Prais judgment of the ECJ demonstrates that this thinking is also conceivable in relation to religion.60 Duties of reasonable accommodation are arguably intrinsically related to duties to adopt differential treatment (special measures) for persons in different situations, like persons belonging to minorities. Hence imposing such duties can be considered as furthering

56 57

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EU Independent Experts on Fundamental Rights, Thematic Comment no 3, 19–20. Inter alia S. Fredman, ‘Introduction’, in: S. Fredman (ed.), Discrimination and Human Rights – the case of racism, OUP 2001, 32–36. See also but that in terms of the Framework Directive (Directive 2000/78/EC): ECJ C-144/4, Mangold v Helm, para 74–75. Case C-56/94, SCAC [1995] ECR I-1769, para 27; Case C-15/95, EARL de Kerlast [1997] ECR I-1961, para 35; Case C-354/95, National Farmers Union and Others [1997] ECR I-4559, para 61; C-292/97, Karlsson [2000] ECR I-2737, para 39. See also E. Guild, ‘The EC Directive on Race Discrimination: Surprises, Possibilities and Limitations’, Industrial Law Journal 2000, 419. See however, J.H. Gerards, Rechterlijke Toetsing aan het Gelijkheidsbeginsel, Sdu 2002, 229. For a more extensive analysis of the emergence of the concept reasonable accommodation in Canada and the US exactly in relation to religious diversity caused by immigration, see inter alia K. Henrard, ‘De verhouding tussen de concepten redelijke aanpassing, indirecte discriminatie en proportionaliteit’, in: C. Bayart, S. Sottiaux & S. Van Droogenbroeck (eds.), De nieuwe federale antidiscriminatiewetten, die Keure 2008, 257–295.

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substantive equality. The special attention for religious discrimination or discrimination with a religious connotation noted supra and the more general increasing internalization of attention for special needs of minorities could lead to an expansion of ‘reasonable accommodation’ thinking, so as to identify duties to differentiate that benefit minorities (and their right to identity). As it stands the FED is being revised in order to broaden the scope of application ratione materiae but the current proposal does not include a widening of the scope of the reasonable accommodation provision.61 This should not inhibit the ECJ from developing its jurisprudence in Prais in terms of the general principle of equal treatment also in relation to other grounds, like race and ethnic origin62 and/or language. The Independent Experts on Fundamental Rights in any event specified in their General Comment no 3 ‘The protection of minorities in the EU’ that duties of effective accommodation flow from the prohibition of discrimination as enshrined in the RED. In relation to the Roma this would for example imply an obligation on authorities to provide sufficient stopping places for caravans, for educational facilities adapted to an itinerant lifestyle and for non-discriminatory access to health care.63 The experts also identified duties of reasonable accommodation towards immigrants in relation to language use by public authorities64 and by providers of public services.65 Positive action measures concern a particular set of special measures, namely those aimed at addressing historical and/or structural disadvantages.66

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63 64 65 66

Consider the Proposal for a Council Directive on Implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation {SEC(2008)2180}{SEC(2008)2181}. The ECJ could also following its reasoning in Mangold to rely on article 5 FED as emanation of a general principle of equal treatment to justify an expansion of the mechanism of duties of reasonable accommodation found in the directive (see also Jan Jans, ‘Doorwerking in de nationale rechtsorde van het verbod van leeftijdsdiscriminatie als algemeen beginsel van gemeenschapsrecht’, in: M. Herweijer, G.J. Vonk & W.A. Zondag (eds.), Sociale zekerheid voor het oog van de meester: opstellen voor prof. mr. F.M. Noordam, Kluwer 2006, 115–129; and T.A.J.A. Vandamme, Hof van justitie 22 november 2005, Werner Mangold t. Rüdiger Helm, ‘De verdere verbreding van het gelijke behandelingsbeginsel in het Gemeenschapsrecht’, NJCM Bulletin,2006, 31.6, 897–915. See also infra on the Chapman v UK judgment of the European Court on Human Rights and the identification of a state duty to facilitate the minority way of life in terms of article 8 EVRM and the protection of privacy, family life and home. As the ECJ tends to follow the interpretations of the ECHR by the ECtHR, this could also trigger and support such developments. EU Network of Independent Experts on Fundamental Rights, Thematic Comment no 3, 53. Ibid., 20. Ibid., 44. See also Ch. Mc Crudden, ‘International and Legal Norms Regarding National Legal Remedies for Racial Equality’, in: S. Fredman (ed.), Discrimination and Human Rights: the Case of Racism, OUP 2001, 277.

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It is generally accepted that the prohibition of discrimination determines the outer limits of legitimate positive action measures.67 In terms of the general justification model this would require a legitimate aim and measures which are proportionate to that aim. While the legitimate aim of affirmative action measures seems a given, namely to contribute to the achievement of substantive equality, there is still the additional need for the measures concerned to be proportional. The latter tends to be the most contentious factor. The situation in terms of EC law is further complicated by the fact that direct differentiations require an explicit legislative basis. The rather restrictive approach of the ECJ in relation to positive action measures has been amply assessed.68 Nevertheless it has been argued that the ECJs case law is becoming less strict, in that the proportionality test takes centre stage.69 Furthermore, the Court might adopt a more lenient approach to positive action in terms of race or ethnic origin, because of the different social context.70 This remains to be seen as there is no positive action case law in terms of the Race Directive or any of the other post 1999 legal provisions so far.71 The formulation of the positive action provisions in the directives does in any event not impose an obligation to undertake positive action measures on states. This could however very well be argued in case of persons in a severely disadvantaged and thus different position, because that would be a paradigmatic situation triggering duties to adopt special measures. This line of thinking has been adopted by the UN Treaty Bodies and even the European Court of Human Rights.72 Also here the future ECJ case law will need to clarify to what extent the ECJ is willing to follow suit.

67 68

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See also infra the discussion in chapter 3. See inter alia S. Pager, ‘Strictness and Subsidiarity: An Institutional perspective on affirmative action at the ECJ’, Boston College International and Comparative Law Review 2003; C. Costello, ‘Positive Action’, in: C. Costello & E. Barry (eds.), Equality in Diversity: the new equality directives, Irish Centre for European law 2003, 177–212. This can restrictive approach can also be related to a symmetrical approach to non-discrimination. See also D. Caruso, ‘Limits of the Classical Method : Positive Action in the European Union after the new Equality Directives’, Harvard International Law Journal 2003, 344. L. Waddington & M. Bell, ‘More Equal than Others: Distinguishing European Union Equality Directives’, Common Market Law Review, Kluwer 2001, 603. See infra. HRC, General Comment no 18, para 10. In this respect, reference should also be made to General Comments no 4 and no 28 on article 3 since these indicate (in respectively paragraph 2 and 3) that the principle of non-discrimination in all three articles of the CCPR ‘requires not only measures of protection but also affirmative action designed to ensure the positive enjoyment of rights’.

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In terms of the reach of the prohibition of discrimination it should be underscored that the 2000 EU Charter on Fundamental Rights contains a non discrimination clause with an open list of prohibited grounds of differentiation, while explicitly mentioning not only race and religion but also language, belonging to a national minority and nationality. This generalization of the scope of the prohibition of discrimination fits the socialization model/development while being particularly relevant for minorities, including ‘immigrant’ minorities.73 It is to be welcomed that with the coming into force of the Lisbon Treaty in December 2009 this Charter will be legally binding. The pronounced focus on an effective protection against discrimination is also visible in the first Multi-annual Framework for the European Union Agency for Fundamental Rights (2007–2012). The framework has two thematic area’s of relevance namely ‘racism, xenophobia and related intolerance’ and ‘discrimination based on race or ethnic origin, religion or belief … and against persons belonging to minorities…’.74 While language does not feature explicitly as a ground of discrimination, discrimination against persons belonging to minorities is part of this particular thematic area. This arguably implies that all kinds of discrimination against minorities, also when it concerns discrimination on the basis of language are included. When considering the activities of the FRA so far, and in line with the preamble of the Council Regulation establishing FRA,75 minorities feature

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CERD/C, General Comment no 16, para 15. See also H.B. Schöpp-Schilling, ‘Reflections on a General Recommendation on Article 4(1) of the Convention on the Elimination of all forms of discrimination against women’, in: I. Boerefijn et al. (ed.), Temporary Special Measures, Intersentia 2003, 28. See also R. Cook, ‘Obligations to Adopt Temporary Special Measures under the Convention on the Elimination of All Forms of Discrimination against Women’, in: I. Boerefijn (ed.), Temporary Special Measures, Intersentia 2003, 129. CEDAW underlines in this respect that ‘it is not enough to guarantee women treatment that is identical to that of men. Rather, biological as well as socially and culturally constructed differences between women and men must be taken into account. Under certain circumstances, non-identical treatment of women and men will be required in order to address such differences’ (CEDAW, General Comment 25 on article 4, par 1 on temporary special measures, para 8. See also ibid., par. 11). ECtHR, Stec et al. v UK, 12 April 2006, para 51 and 61. See also L. Halleskov, ‘The Long-Term Residents Directive: A Fulfilment of the Tampere Objective of Near-Equality?’, European Journal of Migration and Law 2005, 189. Council Decision of 28 February 2008 implementing Regulation (EC) No. 168/2007 as regard the adoption of a Multi-Annual Framework for the European Union Agency for Fundamental Rights for 2007–2012, Article 2. Council Regulation No. 168/2007 establishing an EU Agency for Fundamental Rights, para 10 which stipulates that the work of the Agency should continue to cover ….protection of rights of persons belonging to minorities.

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extensively in its activities. There is the ongoing EU-MIDIS project on a European Union Minorities and Discrimination Survey which sets out to report immigrant and ethnic minority groups’ experiences of discrimination and racist crimes. The first data-in-focus report concerned the Roma because in relation to them the highest overall levels of discrimination are reported while the second report focused on Muslims. In addition there are several reports pertaining to religious minorities, including a 2008 report ‘Community cohesion at local level: addressing the needs of Muslim Communities’. Several of the FRA publications address the impact of racist and xenophobic crime on particularly vulnerable groups in society such as the Roma and the Jewish minority. When evaluating the EU’s activities in the fight against racist and xenophobic crime, one should note that the Council adopted on 28th of November 2008 a long awaited Framework Decision on combating racism and xenophobia. While this is another initiative that is not minority specific, it is obvious that since the victims of such crimes tend to be members of minorities, this framework decision is particularly beneficial for them. The need for special attention for the Roma in view of their structural discrimination in many fields of socio-economic life has not only been reflected in the work of the FRA but has been recognized by all EU institutions, as is visible in the European Parliament resolution of 14 January 2009 on the situation of fundamental rights in the European Union 2004–2008,76 in the reports of the Commission and the Council on social protection and social inclusion (see infra), and in the 2009 Commission report on the various activities that have been deployed in 2007–2008 (inter alia) to tackle discrimination against Roma and promote their inclusion.77 The FRA is also in the process of developing a new strategy on addressing the situation of Roma and Traveller communities.78 There is even a separate webpage on the EU website dedicated to the Roma.79 It is not sure that this acknowledgement of Roma’s predicament and particularly vulnerable situation will actually culminate in a separate directive aimed at countering the segregation of Roma and achieving their integration as was

76 77 78 79

P6_TA(2009)0019, para 51–54. EC, EU action against discrimination: Activity Report 2007–08, April 2009, 15–17. See i.a. Final Consultation Report: Consultation on FRA work on Roma and Travellers. http://ec.europa.eu/social/main.jsp?catId=518&langId=en. Documents can be found here pertaining to the first European Roma Summit 2008 (EU/MS/N60?) as well as the Council Conclusion on Inclusion of Roma of 8 June 2009. The latter are particularly significant as they respond to the Common Basic Principles on Roma Inclusion as presented at the Integrated European Platform for Roma Inclusion of April 2009.

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suggested by the EU Network of Independent Experts on Fundamental Rights in the Conclusions and Recommendations of 2003.80 Nevertheless, special attention for their disadvantaged position is bound to develop into a full blown Roma policy, which will most likely include some ‘accommodations’ towards their own, traditional way of life, especially when this is tied up with effective and substantively equal access to social services and education. Arguably these special measures targeted at Roma because of their special (extraordinary vulnerable and disadvantaged position) seems justified (and even called for) from a substantive equality perspective. 5.2. Social inclusion and social protection (OMC) A policy area which is closely related to the non-discrimination policy concerns social inclusion and social protection. The intrinsic connection between non-discrimination and social inclusion and protection is in any event underscored in the social inclusion reports.81 Not only have both policies taken shape in the same DG of the Commission, but the social inclusion agenda can be considered as a further intrusion in the social domain, which arguably was set in motion with the extension of the discrimination grounds in the Treaty of Amsterdam (and the directives based on article 13 EC). The timeline seems to corroborate this reading: the Open Method of Coordination on social inclusion was started in the 2000 Lisbon Summit and was considered to complement the Employment Guidelines of the European Employment Strategy (at the Nice Summit of 2000). It is important to highlight that these Employment Guidelines have included, once again since 1999, a reference to minorities, a feature which was maintained in the 2005 revised Employment Guidelines. Member States are called upon to make their employment markets more inclusive for which the integration of migrants and minorities would be particularly essential.82 In Nice it was underscored that one common objective of the social inclusion program was helping the most vulnerable.83 This would arguably include

80

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Council Decision of 12 July 2005 on Guidelines for the employment policies of the Member States (OJ L 205 of 6.8.2005, p. 21). See the 2005 and 2006 reports and their mentioning as one of its seven priorities: ‘overcoming discrimination and increasing the integration of … ethnic minorities and immigrants’. See also Traveller and Roma Action for the Implementation of Legal and Equality Rights, The Trailer Project 2004–6, Final Report, European Dialogue, London, 2006, 1. See the explanations with guideline 18 in Council Decision on Guidelines for the employment policies of the Member States (OJ L 205 of 6 August 2005), 21. European Commission, Fight against poverty and social exclusion – definition of appropriate objectives’, 2000 Brussels.

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persons belonging to minorities.84 The first joint report on social inclusion (Commission and Council) dates back from 2002 and inter alia underscores as a strategic goal obtaining greater social cohesion by 2010. It is hard to deny that social cohesion particularly benefits persons belonging to minorities. A study of the yearly reports on social inclusion and social protection reveals that they have, especially since Nice,85 increasing attention for migrants, ethnic minorities, and Roma specifically, for whom a special and targeted approach would be called for. The lack of clarity about the reach of the concept ‘minority’ in the EU in relation to migrants specifically is clearly exposed when comparing these reports. Notwithstanding the use of the concepts ‘ethnic minority’ and ‘migrant’ side by side this does not denote a fixed opinion of the Commission that minority members necessarily should have the nationality of the country of origin. To the contrary, the Commission has explicitly called on member states to also consider minorities with citizenship. In this respect it could be opined that using these two concepts in one breath indicates that while these concepts may concern groups of persons that are different in some respects, there are also considerable similarities. This inclusive use of the concept ‘minority’ can also be detected in the report of the High Level Advisory Group established by the Commission on ‘Social integration of ethnic minorities and their full participation in the labour market’. This (2007) report has throughout ample attention for immigrants, implying that these groups also qualify as ‘ethnic minorities’.86 A closer study of the social inclusion reports actually shows that the Council and the Commission appear to have a heightened interest in immigrants and their integration as compared to ‘ethnic minorities’. Notwithstanding the fuzziness of the concept ‘ethnic minorities’ in relation to ‘migrants’ and ‘immigrants, both categories are said to warrant special measures to improve their integration.87 The Joint Report on Social Inclusion 2005 is very explicit about the need for states to adopt more special measures aimed at the inclusion of ethnic minorities and Roma, as they are continuously more at risk than the rest 84

85

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See inter alia W. Kymlicka, ‘Individual and Community Rights’ in: J. Baker, Group Rights, Toronto University Press 1994, 20. According to Malloy and Gazzola, ‘The operationalisation of the OMC process on social inclusion which began in earnest in Nice, laid the foundations for addressing ethnic minority exclusion in the years to come’, in: T.H. Malloy & M. Gazzola, Report on Aspects of Culture in the Social Inclusion of Ethnic Minorities, EC 2006, 35. The reports have special attention for educational integration, which in turn is key for the subsequent employment possibilities and thus the breaking of the cycle of poverty and exclusion. Joint Report on Social Protection and Social Inclusion 2008, COM(2008)42 final, 31.

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of the population,88 with specific attention being called for in relation to education.89 Similarly the 2007 Joint Report favors a holistic approach to both immigrants and ethnic minorities, and underscores the importance of (improved) educational achievements and the need to develop language skills.90 The European minority par excellence, the Roma have even a vastly expanded ‘citation’ index in social inclusion reports compared to the other vulnerable groups. In other words, it appears generally accepted that Roma require special attention.91 This is not surprising in view of the high degree of marginalization and structural, multidimensional discrimination this group is facing. It is to be welcomed that the 2009 Council Conclusions on the Inclusion of Roma reflect a targeted, sustained attention for Roma, acknowledging the need for special measures (pertaining to education, employment, public health etc.) in order to obtain effective inclusion of this population group. This follows the findings and recommendations of the European Roma Summit of September 2008 and of the Integrated European Platform for Roma Inclusion of April 2009, the latter culminating in the Common Basic Principles on Roma Inclusion. These CBPs are meant to be used by the Commission and the member states when designing and implementing policies so that a Roma concern is mainstreamed. Importantly, they are not confined to a narrow nondiscrimination perspective but also include a call for cross cultural communication in order to counter segregation (CPB 3). Considering the topics addressed in the social inclusion and social protection reports, these concepts seem to have a broad reach in the sense that they are not confined to employment and the related social participation but also concern access to quality services and even set out to improve the ‘integration’ of the groups concerned.92 Integration being an elusive term, it should be underscored that it is used in a holistic way in this respect.93 Obviously social inclusion and social protection as policy area is mainly concerned with issues of socio-economic participation. It does not come as a big surprise that there is little attention for identity issues per se. Nevertheless, Malloy and Gazzola note that there is ‘instrumental’ attention to culture, in 88 89 90 91

92 93

Joint Report on Social Protection and Social Inclusion 2005, COM(2005)14 final, 33. Ibid., 62. Joint Report on Social Protection and Social Inclusion 2007, COM(2007)13 final, 2, 7, 13. Thematic Comment no. 3. See also O de Schutter & A Verstichel, ‘The Role of the Union in Integrating the Roma: present and possible future’, EDAP 2/2005, 34. Joint Report on Social Protection and Social Inclusion 2006, COM(2006)62 final, 8–10. Inter alia the Joint report on social protection and social inclusion 2006, COM(2006)62 final, 10–16; the Joint Report on Social Protection and Social Inclusion 2005, COM(2005)14 final, 5–10, 14, 37 and 119 and the Joint Report on Social Inclusion 2004, COM(2003)773 final, 48–51 and 70.

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the form of the protection of the culture of minorities, as important for their integration and social inclusion.94 In some respects any ‘cultural’ focus seems to be rather on the importance of acquiring the national language (through training and support measures),95 while in others the important contribution to cultural diversity by immigrants is hailed. Overall it appears that any positive attention for minority cultures seems to be instrumental because it would improve social inclusion/inclusion, inter alia by enhancing the social status of the minorities concerned.96 5.3. Integration Considering these more conceptual considerations on ‘integration’ above, it is important to identify what vision of the concept ‘integration’ emanates from EU internal policy. First of all, and notwithstanding the reference to the goal of integration in the social inclusion reports, there only seems to be an outspoken integration policy for third country nationals. This can be deduced from the The Hague Programme and the adoption of the Common Basic Principles of Integration which since 2005 set in place a Common Agenda for Integration.97 This Agenda is all about mainstreaming of integration of TCN, which is monitored in yearly reports on migration and integration. Most attention goes to socio-economic participation and the related social inclusion and non-discrimination strategies. This focus on equalization of the status of TCN in relation to EU citizens is clearly noticeable in the Council Directive 2003/109/EC concerning the status of third-country-nationals who are longterm residents. At the same time this directive reveals that the EU is not willing to go as far as granting them an equal status to EU citizens both as regards employment related as social entitlements.98

94 95 96 97 98

See also the name of the Advisory Group established in 2006 by the EC: ‘High-level advisory group on social integration of ethnic minorities and their full participation in the labour market’, MEMO/07/536. Malloy & Gazzola 2006, 23. Joint Report on Social Inclusion 2004, COM(2003)773 final, 96–97. Joint Report on Social Inclusion 2005, SEC(2005)256, 65, 67 and 83. COM(2005)0389 final. For a critical assessment see inter alia S. Boelaert-Suominen, ‘Non-EU nationals and council directive 2003/109/EC on the status of third-country nationals who are long-term residents: five paces forward and possibly three paces back’, Common Market Law Review 2005, 1011– 1052; L. Halleskov, ‘The Long-Term Residents Directive: A Fulfillment of the Tampere Objective of Near-Equality?’, European Journal of Migration and Law 2005, 181–201; S Peers, ‘Implementing Equality? The Directive on long-term resident third-country nationals’, European Law Review 2004, 450–460.

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It should be underscored though that notwithstanding the focus on socioeconomic issues, here also seems some recognition that integration has a cultural dimension.99 Nevertheless, this does not seem to lead to outspoken commitments to promote the migrant’s culture. It may not be entirely clear what respect for the migrant’s culture exactly would entail, the importance of mutual understanding and intercultural dialogue is acknowledged in the dedication of 2008 as Year of Intercultural Dialogue. A central message of this year was the importance of intercultural dialogue for successful integration, which would at the same time counteract racism. One should be careful to assume that ‘integration’ would in terms of EU policy not be considered relevant for traditional minorities and EU citizens. Especially in relation to the latter it is obvious that the entire project of European integration hinges on an optimal integration of EU citizens in their countries of residence.100 Several provisions of Directives and Regulations (especially in relation to workers) and lines of jurisprudence of the ECJ (inter alia the reach of the word ‘social advantages’ for persons availing themselves of the free movement rights) arguably corroborate that.101 The focus on TCN for integration policies seems rather to reflect the conviction that this is already ‘settled’ or ‘secured’ for the other population groups. The social inclusion and social protection policies would benefit all disadvantaged groups and exactly there a particular attention for the situation of minorities is already visible. In so far as the cultural dimension is not covered by the social inclusion and non-discrimination policies, one needs to have regard to EU policies aimed at cultural diversity (see infra). In terms of socio-economic inclusion and participation the EU seems equally concerned about socio-economic disadvantages of traditional and ‘new’ (immigrant) minorities. Nevertheless there remains a distinction within the category of new minorities, with EU citizens having a stronger socioeconomic position as TCN. This can once again be tied to the European integration process at the heart of the EU. 99

100

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Third Annual Report on Migration and Integration, p. 5. G.N. Toggenburg, ‘European values and diversity’ 2004, 18. See also R. Cholewinski, ‘Migrants as Minorities: Integration and Inclusion in the Enlarged European Union’, JCMS 2005, 709–711. P. Craig & G. de Burca, EU law: text, cases and materials, OUP 2008, 770–782. See also S. Carrera, ‘What does free movement Mean in Theory and Practice in an Enlarged EU?’, ELJ 2005, 699; S. Giubboni, ‘Free Movement of Persons and European Solidarity’, ELJ 2007, 360; C Jacqueson, ‘Union Citizenship and the Court of Justice: Something New under the Sun? Towards Social Citizenship’, in: European Law Review 2002, 260; D. Kostakopoulou, Citizenship, Identity and Immigration in the European Union: Between Past and Future, Manchester University Press 2001.

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5.4. Non-Minority-Specific Human Rights Mainstreaming minority concerns when exercising the attributed competences is not only a way around the absence of an explicit competence attributed to the EU in terms of minority rights and minority protection. Mainstreaming can also be considered a duty. Indeed, when respect for the rights of minorities, as for human rights generally, is qualified as a foundational value of the EU (as in the Lisbon Treaty102), this arguably calls for some kind of coherent policy, at least to mainstreaming the respect for these rights.103 The fact that the EU does not have an attributed competence pertaining to the respect for human rights, has not prevented the ECJ to identify, from relatively early on, a duty to respect these rights on the side of the EU institutions as well as the member states (when operating within the field of application of EC law) as a general principle of EC law.104 Not only is with the incumbent coming into force of the Lisbon Treaty the respect for the rights of minorities explicitly enumerated as a foundational value of the EU, it is explicitly qualified as a component part of the broader human rights paradigm.105 Making arguments by analogy to the duty to respect human rights appears particularly apposite because also the non-minority-specific rights constitute an important component of minority protection. Considering the close interrelation of human rights (in the broad sense) and minority rights, it appears appropriate to consider what benchmarks the ECJ uses to identify the exact content of the related general principle of EU law.106 The ECJ relies in this respect not only on the constitutional traditions common to the member states but also on the guidelines supplied

102

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Draft constitution article I-2, Lisbon Treaty adding article 1a to the Treaty on European Union (C306/10, 17 February 2007). It does seem a bridge too far to even argue that the recognition of the duty to respect particular rights as a foundational value would not be limited to attributed competences: contra D. Kochenov, ‘A Summary of Contradictions: An Outline of the EU’s Main Internal and External Approaches to Ethnic Minority Protection’, Boston College International and Comparative Law Review 2008, 3. B. de Witte, ‘The past and Future Role of the ECJ in the Protection of Human Rights’, in: Ph Alston (ed.), The EU and Human Rights, OUP 1999, 867–869. Article 1 of the Treaty of Lisbon (C306, O.J. 17 December 2007) inserted in the Treaty on European Union article 2, which reads: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. ….’ (emphasis added). Pentassuglia underscores that the ECJ has not excluded the possibility of identifying a general principle of EC law related to minority protection: G. Pentassuglia, ‘The EU and the protection of minorities’, EJIL 2001, 6.

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by international treaties for the protection of human rights on which the member states have collaborated or of which they are signatories’.107 Hence it seems acceptable to argue that the concept of human rights in article 6 EU ‘in principle includes all human rights presently recognized by EU member states in the context of the UN, the OSCE, and the Council of Europe’.108 It may be that not all member states have ratified the FCNM, the great majority has. Arguably when one wants to avoid a lowest common denominator protection, this should suffice to include it in the scope of the general principle of EC law concerned.109 Furthermore the Copenhagen document, including the paragraphs on minority protection, was unanimously adopted by all OSCE states, thus including all EU member states.110 It remains to be seen what will weigh heaviest for the ECJ when confronted with a case pertaining to the lack of respect of rights of minorities. Even if the ECJ chooses not to go as far as including minority specific rights among the human rights covered by the general principle of EC law pertaining to human rights, it would still be possible to use this particular general principle of EC law to argue for minority conscious implementation of EU internal policies. The need to respect rights of persons belonging to minorities as foundational value of the EU should arguably be taken on board when interpreting the human rights that are included in the general principle of EC law concerned. Furthermore, minority consciousness as interpretative guideline can also be supported by reference to a judgment of the European Court of Human Rights. It should be recalled that in relation to human rights as general principle of EC law the ECJ has always given particular consideration to the ECHR, while having regard to the interpretation of that Convention by the European Court on Human Rights.111 In Chapman v UK the ECtHR not only recognized 107

108

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See inter alia C299/95 Kremzow v Austria. See also B. de Witte, ‘The Past and Future Role of the ECJ in the Protection of Human Rights’, in: Ph. Alston (ed.), The EU and Human Rights, OUP, 1999, 867–869. M. Nowak, ‘Human Rights conditionality in relation to Entry to and Full Participation in the EU’, in Ph. Alston (ed.), The EU and Human Rights, OUP 1999, 694. See also O. de Schutter, ‘Mainstreaming Human Rights in the European Union’, in: Ph. Alston & O. de Schutter (eds.), Monitoring fundamental rights in the EU: The Contribution of the Fundamental Rights Agency, Hart 2005, 42. It should be noted that also the 1992 UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities was unanimously by the UN General Assembly. While a Declaration is not legally binding, an unanimous adoption by representatives of the member states, should stand for something. Inter alia Ph. Alston & J.H.H Weiler, ‘An “Ever Closer Union” in Need of a Human Rights Policy The EU and Human Rights’, in: Ph. Alston (ed.), The EU and Human Rights, OUP 1999, 30.

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the right to a minority way of life in terms of article 8 ECHR, and a concomitant duty for the states to protect the minority way of life, it also explicitly mentioned the FCNM as representing an international consensus among the member states of the Council of Europe. Subsequently the Court used the FCNM as interpretative guide to article 8 ECHR in relation to minorities and their special needs. Since the Chapman judgment in 2000, no further references have been made to the FCNM in jurisprudence of the ECtHR, let alone further definitions of state duties to respect the minority way of life. This makes it unlikely that the ECJ will accept any time soon the FCNM as enshrining (some of the) human rights that would be part of the general principle of EC law concerning human rights. Be that as it may, the ECJ could identify a need to mainstream minority consciousness in the interpretation of (non-minority-specific) human rights, for which the FCNM could serve as interpretative guide.112 In this respect it should be highlighted that gradual internationalization of the duty to respect human rights (when operating within the scope of application of EU law) seems to have gone hand in hand, especially since the late 1990s, with a growing explicit and implicit awareness for the special needs of persons belonging to minorities, both as regards the elaboration of norms/ standards and as to their implementation. The fact that the European Commission decided to add since April 2005 some form of pre-legislative screening of legislative proposals to ensure compliance with the rights enshrined in the Charter,113 further buttresses the importance attached to human rights generally within the EU governing structures. Importantly, one of the subgroups of these guidelines focuses on ‘social inclusion and protection of particular groups’. In addition to particular attention to potential discrimination on the grounds of race, ethnic origin, religion, language and belonging to a national minority, care should also be taken that there is no significant impact on ‘ethnic, linguistic and religious minorities’. The Commission arguably envisages a mainstreaming of minority concerns, at least in a negative way (no indirect discrimination, no disproportionate impact), hence not necessarily active promotion of minority identities. As the European Parliament has always been a champion of minority protection internally,114 it is not all together surprising that the European 112 113

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See in this respect also the contribution by Olivier de Schutter in this volume. Communication from the commission, Compliance with the Charter of Fundamental Rights in Commission legislative proposals: Methodology for systematic and rigorous monitoring, COM(2005)172 final of 27.4.2005. See G. von Toggenburg, ‘A Rough Orientation Through a Delicate Relationship: The European Union’s Endeavours for its Minorities’, in: S. Trifunovska (ed.), Minority Rights in

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Parliament stipulates in its decision of 6 May 2009 on the powers and responsibilities of its standing committees that the Committee on Civil Liberties, Justice and Home Affairs (its human rights committee) is responsible for ‘… the protection within the territory of the Union of citizens’ rights, human rights and fundamental rights, including the protection of minorities, as laid down in the Treaties and in the Charter of Fundamental Rights of the European Union’(emphasis added). This reveals in any event that the activities of the EP will consider the special needs of minorities. Since this is distinctly not a reference to minority specific rights, it can only mean that the human rights ‘laid down in the Treaties and in the Charter’ need to be interpreted and applied in a minority conscious manner. Minority consciousness is also visible in monitoring activities of human rights compliance. Indeed since 2001 the EP examined in annual reports the respect for the rights in the Charter by the EU and its member states. From 2002 to 2005 this monitoring was actually performed by a Network of Independent Experts on the situation of Fundamental Rights in the EU115 (established by the Commission on request by the EP. The Network used in their yearly reports the provisions of the EU Charter on Fundamental Rights as benchmarks. During the negotiations on the Charter several suggestions were made to include a minority specific provision. While this did not happen, it is commonly understood that article 22’s clause on cultural diversity (the Union shall respect cultural, religious and linguistic diversity) was meant to cater for minority concerns.116 The Network decided to follow this up and chose to link (compliance with) article 22 of the Charter on the Union’s duty to respect cultural, religious and linguistic diversity to (compliance with) the Framework Convention for the Protection of National Minorities and the European Charter on Regional and Minority Languages, the two minority specific conventions of the Council of Europe. In 2005 the Network also published an extensive Thematic Comment No 3 on The Protection of Minorities in the European Union.117

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Europe: European Minorities and Languages, The Hague, TMC Asser, 2001, 208; See also Toggenburg 2004, 5–6. See http://ec.europa.eu/justice_home/cfr_cdf/index_en.htm for further information on its creation, activities, annual reports and other documents. See inter alia Guido Schwellnus, ‘Much ado about nothing? Minority protection and the EU Charter of Fundamental Rights’, CONWEB no 5, 2001, at les1.man.ac.uk/conweb/, 8. See also above on the position of the EU Network of Independent Experts. CFR-CDF: ThemComm2005.en.

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In January 2009 the EP came out with a report on the situation of fundamental rights in the EU118 covering the period 2005–2008 in which it addresses minorities and Roma explicitly under separate subheadings. The European Parliament furthermore emphasizes that it considers the protection of minorities as going beyond anti discrimination policies.119 In regard to monitoring human rights compliance, reference needs also to be made to the article 7 procedure in relation to persistent and serious violations of inter alia human rights (and the related possibility of suspension of membership rights). According to the European Commission, one of the factors to evaluate the seriousness of human rights violations could be the implication of persons belonging to national, ethnic or religious minorities.120 While the Fundamental Rights Agency is not meant to yearly monitor human rights compliance by all member states and the institutions, its establishment in itself highlights the prominent place human rights occupy within the EU governing structures and the development of internal policy. As in the case of its predecessor, the EUMC,121 its mandate is not minority specific122 but several of the 9 thematic areas that have been selected by the Council of Ministers for the agency’s first Multi-Annual Framework 2007–2012 are particularly relevant for minorities. Throughout the negotiations on the remit of the FRA there was consensus that it should definitely cover the areas the EUMC has been engaged with, namely racism and racial/ethnic discrimination, xenophobia and, related intolerance (like anti-Semitism). The thematic areas for the FRA also include explicitly discrimination on the basis of religion and belief and discrimination against persons belonging to minorities. Depending on the exact meaning attributed to the concept ‘minority’ this could entail the inclusion of discrimination on other grounds, language being the most obvious contender. In line with the understanding that emerged in the non-discrimination and social inclusion policy about migrants constituting a particular vulnerable 118

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Report on the situation of fundamental rights in the European Union 2004–2008, A6-0479/2008. Ibid., para 32. Communication from the Commission to the Council and the European Parliament on Article 7 of the Treaty on European Union: Respect for and Promotion of the Values on which the Union is Based, COM(2003)606 final, 8. Article 7 TEU also is article 7 of the consolidated version of the Treaty on European Union. Council Regulation (EC) No 1035/97 of 2 June 1997 establishing a European Monitoring Centre on Racism and Xenophobia, article 2 with objective and tasks stipulating that it will focus on racism, xenophobia and anti-Semitism. There is no reference to minority specific rights among the human rights that deserve particular attention.

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group requiring additional protection, the integration of migrants is also included in the multi-annual framework. Arguably the choices made in (the formulation of ) this multi-annual framework demonstrate that by 2008 it is accepted that minorities and migrants require special attention, while it is difficult to make strong (unambiguous) deductions about the relationship between these two categories (would migrants also qualify as minorities). Furthermore, this ‘special attention’ is carefully circumscribed to the domain of the prohibition of discrimination, and arguably the interpretation of non-minority specific human rights. In other words, while the understanding of the minority protection requirements in accession monitoring clearly includes minority specific rights (more particularly those enshrined in the FCNM), this is not (yet) the case for the understanding about minority protection internally. In terms of development lines concerning the duty to respect human rights, it should be highlighted that the lack of competence in relation to human rights has not stopped the development over time of own ‘European Union’ benchmarks on human rights. This has taken considerable time, considering the fact that the EU Charter of Fundamental Rights was proclaimed (by the Council, the Commission and the European Parliament) in December 2000,123 while the ECJ has developed its human rights specific case law already since 1969 and the qualification of respect for human rights as foundational principle of the EU (article 6 EU) dates back to 1992. Consequently, while it seems far from likely today, one should not exclude a similar development for minority specific rights all together. 5.5. The protection and promotion of ‘cultural’ diversity and the protection of minorities The close relation and even interrelation between minority protection on the one hand and the accommodation of population diversity through the protection and promotion of cultural diversity in the broad sense (including cultural, linguistic and religious diversity) on the other is rather generally accepted, not only in academic writings but also in the EU/by the EU institutions themselves. The 1998 Council Declaration on Respecting Diversity and Combating Racism and Xenophobia recognized not only that the promotion of cultural

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OJ C 364 of 18.12.2000, 1. While the Charter started off as a document which was not legally binding, it seems rather sure that it the rights enshrined therein will get legally binding status in the near future (considering the latest developments surrounding the ratification of the Lisbon Treaty).

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diversity is an important aspect of the European integration process but also that it is closely correlated to the protection of minorities. It has already been pointed out that the inclusion of article 22 in the EU Charter on Fundamental Rights and the duty it enshrines for the EU to respect cultural, religious and linguistic diversity is meant to cater for the special needs of persons belonging to minorities.124 The monitoring activities of the Network of Independent Experts made this link explicit in their annual reports on the situation of fundamental rights in the European Union and the Member States as it used as benchmarks for article 22 the two minority specific conventions of the Council of Europe.125 If nothing else this ‘understanding’ confirms the appropriateness of having a closer look at ‘cultural’ diversity policies, investigating their contribution to minority protection. The following alinea’s will first of all discuss the EU’s activities regarding cultural diversity in the broad sense, after which developments concerning linguistic and religious diversity will be analysed. When intending to evaluate the extent to which cultural diversity is protected and promoted in EU policies and their implementation, one would first of all consider any cultural competences the EU might have. As it stands,126 there are very few127 and furthermore rather weak in that they are confined to supporting, coordinating of or complementary action to the activities of the member states. Particularly noteworthy in this respect is the inclusion of what is now article 151 EC Treaty with the 1992 Maastricht Treaty, adding that ‘the Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity’. Arguably this indicates that formal recognition is given not only to diversity among the states but also diversity inside the states to the extent that regional cultural diversity was recognized as a common European value worth preserving.128

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126 127

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See inter alia Guido Schwellnus, ‘Much ado about nothing? Minority protection and the EU Charter of Fundamental Rights’, CONWEB no 5, 2001, at les1.man.ac.uk/conweb/, 8–10. EU Network of Independent Experts on Fundamental Rights, Annual Report on the situation of fundamental Rights in the European Union in 2002, 174. See also EU Network of Independent Experts on Fundamental Rights, Thematic Comment no 3, 7–8. This will remain the same when the Treaty of Lisbon goes into effect. The cultural competences are captured in two articles of the EC Treaty, namely 149 and 150 and concern in addition to the development of quality education, several broad-ranging cultural issues such as improvement of knowledge about culture of the European peoples, protecting and promoting cultural heritage of European significance, cultural exchanges, and artistic creations. Inter alia B De Witte, ‘The Value of Cultural Diversity in European Union law,’ in: H. Schneider & P. Van den Bossche (eds.), Protection of Cultural Diversity from a European and International Perspective, Intersentia 2008, 224.

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Article 167 TFEU, 4 arguably functions as a horizontal integration clause, entailing the need to mainstream attention for the promotion of this regional cultural diversity. It has de facto potential to protect ethnic and linguistic minorities that are territorially concentrated in particular regions. Hence, this provision could and has been qualified as a veiled recognition of the role and place of ethnic minorities in the European community.129 The Lisbon Treaty’s inclusion of ’ respect of the Union’s rich cultural and linguistic diversity among the objectives of the Union130 could further strengthen a minority consciousness in this respect. However, looking at the overall scheme of things it is ‘less clear whether the commitment to respect cultural diversity extends beyond the national and regional dimensions and also to cultural diversity on a non-territorial basis – in other words, whether the European Union is committed to supporting multiculturalism inside its Member States’.131 The EU’s attention for diversity and the need to accommodate diversity appears primarily targeted at the diversity between the member states.132 Arguably, respecting cultural diversity among member states is considered essential to optimize the overarching goal of European integration, as integration of the distinctive national states.133 This focus on accommodating the diversity among member states is also confirmed by the stipulation in article 165 TFEU that the Community’s competence in education must respect the Member States’ cultural and linguistic diversity’. Similarly the Lisbon Treaty stipulates that the Union shall pay full regard to the customs of member states relating in particular to religious rites and cultural traditions when formulating and implementing its economic competences in the broad sense. Be that as it may, the actual implementation and practice concerning these cultural competences is decisive for the extent to which minority protection materializes. So far, cultural diversity concerns do not seem to have played a significant role in the formulation and/or implementation of non-cultural 129 130

131 132

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De Witte, ‘Politics versus Law in the EU’s approach to Minorities’, 487. The Lisbon Treaty sets out to amend article 2 EU so that the third paragraph would end with ‘It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced’. De Witte 2008, 224. See in detail on the question whether and to what extent diversity within states is at all covered by the EC law notion of diversity: G. Toggenburg, ‘United in Diversity: searching for the regional dimension in the context of a somewhat foggy constitutional credo’, in: R. Toniatti, M. Dani & F. Palermo (eds.), An Ever more complex Union: The regional variable as missing link in the European Constitution, Nomos 2004. M. Pantel, ‘Unity-in-diversity: cultural policy and EU legitimacy’, in: T. Banchoff & M.P. Smith, Legitimacy and the European Union the contested policy, Routledge 1999, 46–66.

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competences of the EU,134 while also in the years since 1998, nothing much has materialized in terms of protection and promotion of cultural diversity. Furthermore, an even greater hesitation can be detected towards minority consciousness in the implementation of policies. Cultural diversity can be (and is being) protected and promoted through the use of some funding streams including the regional development fund and the structural funds. However, the EU has rightly been remarked to only provide a piecemeal contribution to a flowering of regional cultural diversity.135 While Culture 2000 is meant to promote dialogue between cultures and cultural diversity, the 2008 Year of Intercultural Dialogue does not develop the link between intercultural dialogue and minority protection. Notwithstanding the huge scope of the Culture program 2007–2013 there is only one reference to minorities, none to migrants and limited ones to raising awareness of cultural diversity. It remains to be seen what (minority specific practice) will come out of the European Commission proposal to devise the first ever comprehensive European strategy for culture, with as on one of the three main objectives the promotion of cultural diversity and intercultural dialogue.136 In relation to the development of the policy concerning cultural diversity a double picture emerges. On the one hand there is a clear understanding about the link between cultural diversity and minority protection. The timing of the above ‘understanding’ fits once again the timeline of accession monitoring and its introducing of minority talk within the EU institutions.137 On the other hand the actual practice in terms of cultural diversity and its relation 134

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See B de Witte 2008, 228–231 who discusses this in relation to market integration and internal market legislation. A. Biscoe, ‘The European Union and Minority Nations’, 93–94; B. de Witte, ‘Politics versus Law in the EU’s Appraoch to Minorities’, 487. In relation to the Regional Development Fund, de Witte notices that cultural diversity does not feature prominently in the cultural activities funded. A special case would be Interreg programme, dedicated to cross-border and crossnational regional development. Still cultural activities sponsored within this framework promote cultural interaction (cultural links between bordering countries) rather than distinctive regional cultures (and the related cultural diversity): B de Witte 2008, 231. European Commission Communication: a European Agenda for Culture in a Globalizing World 2008, COM(2007)242 final. It should be acknowledged that already in the 1977 directive on education for children of migrant workers attention for the maintenance of the cultural identity of these children was noticeable. However, this was rather weak and mainly instrumental to the realization of the economic freedom of workers. The predominance of the European integration project explains the fact that this measure only concerns ‘European citizens’ and not own nationals of the member states or third country nationals. In other words this measure clearly did not envisage the promotion of cultural diversity as such.

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to minority protection is rather disappointing as it stands.138 This could be seen as mirroring the virtual absence of attention for cultural diversity policies in the accession monitoring process (pertaining to minority protection). A deeper explanation can be found in the current understanding of the overarching goal of European integration which concerns the integration of the distinctive member states. Consequently, the EU’s credo unity in diversity139 is still primarily seen as referring to the diversity among member states. Be that as it may, to the extent that the promotion of cultural diversity is not only becoming increasingly accepted as an important dimension of the European integration process,140 but is also understood as intrinsically related to minority protection,141 there seems potential for additional developments of EU action in the field of minority protection through this ‘channel’.142

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This is also confirmed by the analysis by De Schutter in this volume concerning the regulation of audio-visual services. See the preamble of the Draft Constitution (also taken up in the Lisbon Treaty and its passus: ‘convinced that, while remaining proud of their own national identities and history, the peoples of Europe are determined to transcend their ancient divisions and, united ever more closely to forge a common destiny, Convinced that, thus ‘united in diversity’ [emphasis added], Europe offers them the best chance of pursuing, with due regard for the rights of each individual and in awareness of their responsibilities towards future generations and the Earth, the great venture which makes it a special area of human hope’. See also G Toggenburg, ‘Unification via Diversification – what does it mean to be united in diversity?’, eumap online journal, 2–4. It should be noted that cultural diversity in the draft Constitution is said to be on of the EU objectives, more particularly the duty that that the EU respects such diversity (article I-3, par 3). See also G.N. Toggenburg, ‘The Debate on European Values and the case of Cultural Diversity’, EDAP 1/2004. It should also be noted that increasingly regional interests are inserted in the legislative process at European level since the Committee of Regions needs to be consulted by the Council and Commission on increasing range of subjects, and definitely concerning education and culture: see also J. Kottmann, ‘Europe and the Regions: sub-national entity representation at Community Level’, European Law Review 2001, 160, 169–170. More generally, it can be argued that the Committee of Regions can contribute to a greater awareness for minority concerns, through its focus on regional issues, as the latter often comprise ethnic minority dimensions (see also G. Amato, Minority Rights and EU Enlargement, 14). It should be acknowledged that respect for diversity within the EU can also refer to diversity between the Member States, and the need to respect the distinctive and different national identities. Nevertheless, when considering other provisions in the draft Constitution it is clear that the level of reference is not exclusive the different states but also considers sub-national levels: see article I-5, para 1. This is furthermore also reflected in article 151, par 4 EC (as explained above). G. Amato, Minority Rights and EU Enlargement, 14.

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Linguistic diversity143 Notwithstanding the fact that language and linguistic diversity is not explicitly addressed in the ‘cultural’ articles of the Treaty, arguably the duty to mainstream cultural diversity in article 167, 4 TFEU144 would also concern linguistic diversity, and the coming into force of the EU Charter of Fundamental Rights only makes this duty (more) explicit. Two issues need to be explored here: the acceptance of versus constraints on national policies aimed at protecting linguistic minorities and the extent to which the EU institutions indeed mainstream linguistic diversity in their activities in a way which enhances minority protection. While language policy is and remains typically a competence of the member states, the need to respect the common market frame do impose constraints on their ability to adopt measures aimed at the protection of linguistic minorities. It appears unlikely that this mainstreaming duty will lead the ECJ to reduce these constraints on national measures aimed at the protection of national minority given the predominance of the economic integration project.145 In this respect a succinct reference to the judgments of the ECJ that evaluate national rules aimed at protecting linguistic minorities against the fundamental freedoms enshrined in the EC-treaty (and its implied prohibition of discrimination on the basis of nationality) seems in order, more specifically the freedom of movement and the freedom of services.146 Two of these four famous cases even predate the Maastricht Treaty: Mutsch and Groener.147 Two more recent judgments concern South Tyrol and were pronounced in 1998 and 2000 143

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This evaluation of the protection and promotion of linguistic diversity decidedly does not touch upon the extent to which linguistic diversity is accommodated in language use in EC institutions (including communication with the public). This has been done extensively elsewhere. See inter alia the discussion in chapter 1 of the book by Niamh Nic Shuibhne, EC Law and Minority Language Policy: Culture, Citizenship and Fundamental Rights, KLI 2002. Shuibhne 2002, 141–146; G.N. Toggenburg, ‘The EU: A Rough Orientation through a Delicate Relationship; the European Union’s Endeavours for its Minorities’, in: S. Trifunovska (ed.), European Minorities and Languages, TMC Asser Press 2001, 216. See the extensive analysis to this effect in G.N. Toggenburg, ‘Minority Protection in a Supranational Context: Limits and Opportunities’, in: G.N. Togggeburg (ed.), Minority Protection and the Enlarged European Union: The Way Forward, OSI/LGI 2004, 21–31. For a more in depth assessment see inter alia F. Palermo, ‘Language Rights and the Equality Principle in EU-law’, EURAC publications 2000; G.N. Toggenburg, ‘The Protection of Minorities at the EU-level: a tightrope walk between (ethnic) diversity and (territorial) subsidiarity?’, in: E. Lantscher et al. (eds.), European Integration and its Effects on Minority Protection in South Eastern Europe, Nomos 2008, 107–112. Ministère Public v Mutsch, C 137/84 [1985] ECR 2681; Groener v Minister for Education and the Dublin Vocational Education Committee, C 379/87 [1989] ECR 3976.

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respectively: Bickel-Franz and Angonese.148 It would be beyond the confines of this article to give a detailed assessment of these judgments. Still, it can be highlighted that the ECJ proclaimed that ‘protection of a [linguistic minority] may constitute a legitimate aim’ of state policy,149 while it obliged the states concerned to make the special rights also available for EU citizens speaking these particular minority languages. While this opening up of special protective measures should not be problematic for the level of minority protection in the state, intrusions in the measures limiting the employment of people that do not speak the minority language as in Groener, could harm the national minority protection goal.150 It remains to be seen what value the ECJ will attach to an actual duty on the EU to mainstream linguistic diversity, respecting linguistic diversity, while minority talk pervades slowly but increasingly policy documents and reports of the institutions. When investigating to what extent the EU institutions themselves have promoted linguistic diversity, it is once again the EP that has traditionally taken the lead in this respect, as is reflected in several of its resolutions since the 1980s, culminating in a call on the Commission to mainstream linguistic diversity.151 The Commission initially confined itself to instigating financial aid for minority languages and/or institutions.152 The EU was indeed the main provider of funds for the independent European Bureau for Lesser Used Languages, which was established in 1982 and promoted and defended these languages. Consequently, the EU has provided some funding for the promotion and preservation of ‘lesser used’ languages. However, while lesser used

148

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Criminal proceedings against Bickel-Franz, C 274/96, [1998] ECR, I-7637; Angonese v Cassa di Risparnio di Bolzano SpA, C 281–98. Angonese, par 42; Groener, par 24. Toggenburg (2008, 111) presents a more detailed and nuanced evaluation when he posits the difference between quantity sensitive rules, that are put at risk when their personal scope is expanded to all citizens (like the reservation of quotas in the public administration for a certain linguistic minority group resident in a specific region), and non-quantity sensitive rules that aim at the establishment of substantive equality by means other than privileged access to rare goods (like the right to use one’s language before the courts). See G. von Toggenburg, ‘A Rough Orientation Through a Delicate Relationship: The European Union’s Endeavours for its Minorities’, in: S. Trifunovska (ed.), Minority Rights in Europe: European Minorities and Languages, TMC Asser Press 2001, 214. For a discussion of the EP resolutions and the initial activities of the European Commission see Toggenburg 2001, 211–216.

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languages are bound to concern minority languages, they are confined to indigenous languages to Europe, thus leaving out an increasingly important layer of linguistic diversity, namely that of immigrants. Nevertheless, EBLUL’s quest to promote linguistic diversity undoubtedly made it a relevant player in the construction of an EU minority protection regime. However, EBLUL has officially closed in January 2010. It remains to be seen whether another EU level NGO with similar aims will be established. The Commission has become more active in this field as is visible in the emergence of its Action Plan Promoting Language Learning and Linguistic Diversity.153 It should be noted however that the main focus of the Action Plan is on language learning, aimed at promoting the common market (and the effective free movement of services), while the attention for the promotion of linguistic diversity (building a language friendly environment) seems rather a side effect.154 In other words linguistic diversity does not seem to be considered a good in itself but rather a good with a high instrumental value (towards economic deployment and European integration). This tends to confirm the general impression that while minority protection is coming more to the forefront also in EU internal policies, this does not (yet) embrace the identity component of minority protection in any meaningful way. Nevertheless, it is important that the Commission acknowledges that linguistic diversity is a shared responsibility. A closer look at the Action Plan pertaining to linguistic diversity, shows that the Commission seems to envisage a mainstreaming approach also in this regard to the extent that ‘in the longer term, all relevant community programs and the structural funds should include more support for linguistic diversity, inter alia for regional and minority languages’ (emphasis added).155 This explicit acknowledgement of the need for a minority conscious implementation is particularly important as it seems to reflect a minority mainstreaming approach in at least one ‘diversity’ dimension. As it stands the focus remains on language learning and thus a rather instrumental vision of linguistic diversity aimed at an increased intra-community mobility and thus economic deployment and European economic integration. Similarly, the 2005 Framework Strategy for Multilingualism156 explicitly mentions that the teaching of non indigenous languages could be considered appropriate. Again the promotion of linguistic diversity is only touched upon and not 153

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European Commission, Promoting Language Learning and Linguistic Diversity: an Action Plan 2004–2006, COM(2003)449 final). As the ECJ judgement in Parliament v Council C 42/97 reveals the Court’s restrictive understanding of culture (and thus cultural diversity) could reduce the actual impact of this policy integration clause (paras 39–42). See also Shuibhne 2002, 144–146 Action Plan 2005, 13. A New Framework Strategy for Multilingualism, COM(2005)596 final.

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developed in any meaningful way. The centrality of language learning is also confirmed in the 2007 report of the Commission on the implementation of the action plan,157 the 2008 Communication from the Commission to the EP, the Council, the Committee of Regions and the Economic and Social Committee, and Council Resolution 16207/08 on a European Strategy for Multilingualism.158 While these documents exhibit an instrumental vision of linguistic diversity through the learning of languages, aimed at economic deployment and European economic integration, language learning and the resulting linguistic diversity is also described as particularly important for social cohesion purposes. The European Parliament’s instrumental vision of linguistic diversity seems rather related to the social cohesion rational when it highlights that multilingualism is essential for the promotion of acceptance of minorities (and thus enhances minority protection).159 Irrespective of the ultimate rational of the protection and promotion of linguistic diversity, it should be underscored that throughout these documents it is underlined that migrant languages are considered to be part of the linguistic diversity which needs to be respected. While there is no explicit qualification of immigrant languages as minority languages, there is no disqualification either. They are in any event included in the scope of the measures protecting and promoting diversity and in this respect the reach of EBLUL’s activities is expanded upon. Arguably in relation to this particular dimension of cultural diversity in the broad sense, there is at least some attention for minority languages while immigrant languages are explicitly included in the coverage of the measures. However, as it stands the attention for linguistic diversity is rather narrow as the focus is on language learning as means to enhance individual (and thus also societal) linguistic diversity. Religious diversity While the entire thinking of ‘reasonable accommodation’ has originated in countries like Canada and the US to accommodate religious diversity due to immigration.

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Report on the implementation of the Action Plan ‘Promoting language learning and linguistic diversity 2004–2006’, COM(2007)554 final/2. Communication From The Commission To The European Parliament, The Council, The European Economic And Social Committee And The Committee Of The Regions Multilingualism: an asset for Europe and a shared commitment, COM(2008)566 final. EP Resolution of 24 March 2009 on Multilingualism: an asset for Europe and a Shared Commitment, 2008/2225 (INI).

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The focus in relation to ‘reasonable accommodation’ in international law (standards) is now on disability. This is also visible in the current and upcoming EU standards, since article 5 Framework Equality Directive (2000/78) only mentions this duty of reasonable accommodation in relation to disability and the proposal of the new directive does not expand duties of reasonable accommodation to other grounds. However, the ECJ has been willing to accept, already in 1976, that the EU institutions have a duty to reasonable accommodate minority religions when adopting generally applicable measures like the timing for exams to enter the EU administration.160 Since this duty was said to flow from the general principle of EC law pertaining to equal treatment, this would also be binding on member states when operating in the field of application of EC law, and thus also beyond the confines of employment related sphere. In order to prevent the emergence of indirect discrimination on the grounds of religious beliefs, a positive duty would (seem to) exist both for public and private parities to provide reasonable accommodation to all religious beliefs.161 Furthermore, the practice at national level demonstrates that important aspects of accommodation of religious diversity, like meals adapted at religious dietary requirements in the workplace and permits to take leave for religious holidays, are accepted in terms of the freedom of religion.162 It remains to be seen whether the ECJ will choose to further develop a doctrine of reasonable accommodation and if so, whether this will be done in relation to religion on the basis of the general principle of equal treatment or on the basis of a particular reading of the freedom of religion inspired by the constitutional traditions of the member states or on the basis of the duty to respect religious diversity enshrined in article 22 of the Charter. Notwithstanding the fact that religious diversity is arguably a component part of cultural diversity, the implementation of article 167 TFEU has not (yet) explored this. As it stands the treaties do not provide more detailed standards pertaining to (the accommodation of ) religious diversity of relevance to

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ECJ, C 130/75, Viven Prais v Council [1976] ECR 1589, para 19 where the Court identifies an obligation to take reasonable steps to avoid fixing a date for a test (competition for a position in the EC administration) which would make it impossible for a person of a particular religious persuasion to take the test due to religious requirements. It does not concern an absolute obligation since the institutions should only take ‘reasonable steps’ and furthermore only when they were notified timely. See also General Comment no. 3 at 34 where this duty is at the same time said to flow from the freedom of religion in se and the prohibition of discrimination on the basis of religion. EU Network of Independent Experts on Fundamental Rights, Thematic Comment no. 3: The Protection of Minorities in the European Union, 2005, 35–36.

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religious minorities. Declaration 11 on the status of churches and nonconfessional organizations annexed to the Treaty of Amsterdam does stipulate that ‘The EU respects and does not prejudice the status under national law of churches and religious associations or communities in the member states’. However, this clearly concerns (again) diversity among member states and not diversity within member states. Furthermore, the broad discretion given to member states concerning state-church relations in this declaration seems to condone even systems that would give privileges to particular religion(s). The ensuing differential treatment would seem difficult to reconcile with a prohibition of discrimination on religion (the general principle of equal treatment) while it would also go counter to duties of state neutrality (not to favor one religion over another) in terms of the freedom of religion, one of the human rights that need to be respected as general principle of EU law. Finally the requirement in the Lisbon Treaty to respect religious rites as customs of member states in the policies and functioning of the Union also seems (at least primarily) concerned with diversity among member states and not so much diversity within the states. Nevertheless, it remains to be seen how broadly ‘religious rites’ will be interpreted, more particularly to what extent it would encompass customs of religious minorities in the member states. Considering the above mentioned Declaration no 11 to the Treaty of Amsterdam even if church-state relations would not be considered as ‘religious rites as customs of member states’, they will not be second-guessed. In other words, the accommodation of religious diversity in the EU is not such that it uniformly contributes to the protection of religious minorities.

6. Conclusion: evaluation and future prospects While the EU does not impose requirements on member states in terms of minority specific rights, several of its policies have potential to contribute to minority protection within the member states. Throughout this contribution the potential importance of standards that are not minority-specific to (mainstream) minority protection has been clarified, while exposing the numerous ways in which the EU can contribute to minority protection. In this way the allegation of double standards against the EU, to the extent that it would only impose on external actors obligations in terms of minorities, is partially countered. However, the actual implementation of policies may always be key to their success, this is especially the case for these standards: their effective contribution to minority protection depends entirely on the extent to which these norms are interpreted and implemented in a minority conscious way.

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The preceding analysis has demonstrated that several of the non minority specific internal policies are increasingly used in a minority conscious way. These policies range from the prohibition of discrimination and social inclusion over integration and human rights to the protection and promotion of cultural diversity (in the broad sense). Hence, it is possible to identify already now the first glimpses of an emerging internal minority protection policy. However there are also several ambiguities about the status quo. Perceptions about double standards cannot easily be tackled as long as the EU seems weary to impose compliance with minority specific standards on its member states, while it does so in its external relations and uses it as an accession condition. Seemingly the growing internalization of minority protection has not yet fully matured. Furthermore the practice of the EU arguably indicates the need to make a further distinction within the category of non-minority-specific policies, more particularly between non discrimination and related social inclusion policies on the one hand and cultural diversity policies on the other. Most of the minority conscious implementation is related to the former, indirectly confirming the central importance of the Racial Equality Directive for minority protection within the EU (it often been qualified as a if not the most promising basis for the development of an internal minority protection policy) while the potential of the latter sub-category seems underexplored so far. Since cultural diversity is closer related to identity matters and thus also the right to (respect for) identity of minorities, the limited minority conscious use of these competences could be seen to reflect the remaining unease with internal minority specific policies. The reluctance to engage more completely with minority protection, especially more identity related aspects, can be considered as an expression of a constrained view of European identity and the diversity united in that identity. It has also been noted that the internal policies are not always equally inclusive in their scope of application ratione personae, leading to a further differentiation between the above mentioned sub-categories of potentially relevant policies. Most of the former policies protect persons belonging to traditional minorities and immigrants or persons belonging to so-called ‘new’ minorities alike. The non-discrimination and social inclusion policies even have a pronounced focus on the latter as well as on Roma. However, the more identity related policies or the more cultural policies seem pretty much to exclude the cultural diversity brought to Europe by immigrants. Arguably also this seems tied to a particular vision of European identity, namely one that is exclusive of an increasingly important and ever growing group of EU residents. The inclusion of immigrant languages in the policies concerning linguistic diversity is an exception, which seems tied to the instrumental focus

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namely that of language learning to enhance economic interactions and transactions as well as to improve social cohesion. Be that as it may, this inclusion of immigrant languages could also signal a welcome extension of the understanding of European identity. Overall, minority protection on the basis of non-minority-specific EU internal policies is everything but adequate in relation to the foundational principles of the right to identity and substantive equality. Hence there would be a need for minority specific rights. However this appears a bridge to far in the current phase of European integration. This necessitates in turn the need to not only consolidate but also improve the use made of the non-minorityspecific policies. With the incumbent inclusion of respect for the rights of persons belonging to minorities among the foundational values of the EU, a more serious attempt at mainstreaming minority protection seems called for.163 Future potential of minority protection in the EU? Notwithstanding various flaws in the current internal minority protection level, and the doubts about a wholehearted minority protection policy, arguments can be put forward why in the future more rather than less minority conscious measures can be expected. In order to make an educated estimation of what the potential future is of the internal minority policy of the EU, it seems important to identify the cause(s) and possible motor(s) of the leaps that have been made until now. The RED has often been qualified as a if not the most promising basis for the development of an internal minority protection policy. It is however not so obvious to tie all these developments to the implementation of the RED. In this article the argument has been put forward that the increasing minority conscious implementation of non minority specific policies seems to go hand in hand with two developments. On the one hand the accession monitoring and the ensuing growing experience, acquaintance and understanding about minority protection on the side of the EU institutions can be mentioned. On the other hand it can be noticed that the EU is moving away from an economy centered organization while getting more involved in social policy and giving a more prominent place to human rights. The latter development

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De Witte & Toggenburg 2004, 68. A similar call can be found in the Bolzano Declaration on the protection of minorities in the enlarged European Union, which was drafted by 17 experts as the outcome of a meeting of around 90 NGO representatives, experts and politicians convened at the European Academy Bolzano/Bozen to discuss the EU’s involvement in the field of minority protection after EU enlargement.

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entailed furthermore experiences with mainstreaming, more particularly mainstreaming of human rights. As these two development lines are ongoing, a similar progression can be expected in relation to minority protection. This will be especially the case if the economic agenda will be less dominant in relation to the social one. Furthermore, the fact that the European Parliament is obtaining a stronger position in the legislative process (especially now the Treaty of Lisbon has gone into effect) augurs well for more explicit attention for minorities in the drafting of legislation and the related policy documents. Indeed, traditionally the EP has been the EU institution which championed minority rights and minority protection most.164 A more consistent mainstreaming of minority concerns in internal EU policies and legislation in turn is bound to lead, over time to the emergence of more explicit member state obligations in terms of minorities and minority protection. Final remark In any event, irrespective of the future developments in the EU, this contribution and its more nuanced assessment of the EU in relation to minority protection sets out to deepen the understanding about the multifaceted nature of minority protection and the extent to which standards that are not minority specific nevertheless (have potential to) contribute to minority protection, while acknowledging that also within this category some are more sensitive for states than others. This is also particularly important in relation to the ongoing debate about the question in what way immigrant groups are entitled to minority protection and minority specific rights.

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See also European Parliament resolution of 7 May 2009 on Parliament’s new role and responsibilities in implementing the Treaty of Lisbon (2008/2063 (INI) ) contains in paragraph 86 a call on the Council and the Commission to agree with Parliament on a strategy aimed at ensuring coherence between legislation adopted and the Charter of Fundamental Rights as well as the rules contained in the Treaties on policies such as preventing discrimination, … the rights of minorities ….

The Framework Convention on the Protection of National Minorities and the Law of the European Union Olivier De Schutter1 Abstract This study of the role of the Framework Convention for the Protection of National Minorities in the law and policy of the European Union seeks to contribute to a debate concerning the relationship between the fight against discrimination in the EU, and the protection and promotion of minority rights. Whereas the EU has spectacularly occupied the field of antidiscrimination in the recent years, in some respects even overshadowing the efforts made by the Council of Europe in this field, it has been reluctant to address the question of minority rights, some Member States taking the view that the latter route was unnecessary if a strong antidiscrimination agenda was pursued. Yet, enlargement of the EU has brought the question of minority rights to the forefront of the political debate. Whether the EU should develop a specific policy aiming at the integration of minorities, which tools it has at its disposal to do so, and how this would affect the relationships between the European Union and the Council of Europe, are among the questions this paper seeks to address. While this contribution is not written in terms of double standards, it does assess the extent to which the FCNM can be considered to be respected in EU law and policy. It actually also goes one step further and investigates how the FCNM could provide guidance to the EU -once the commitment is there- to implement the existing competences and policies in a manner which contributes to the protection of minorities.

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Professor of Human Rights Law, University of Louvain (Belgium) and College of Europe (Natolin); Member of the Global Law School Faculty, New York University. This study was inspired in part by a contribution prepared upon the request of the Secretariat of the Framework Convention for the Protection of National Minorities, for the Council of Europe intergovernmental working group on the rights of national minorities (DH-MIN).

Kristin Henrard, Double Standards Pertaining to Minority Protection, pp. 71–116. © 2010 Koninklijke Brill NV. Printed in the Netherlands.

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1. Introduction This essay seeks to identify the role the Framework Convention for the Protection of National Minorities has played hitherto in the law of the European Union, and how such a role could be developed further. The European Union has not been given explicit competences in the field of the protection of minorities. However, a number of provisions of the EU allow for the adoption of certain instruments which may contribute to improving such protection in the EU Member States.2 Moreover, to the extent that it has been given certain competences in fields not specifically related to the protection of minorities, both the institutions, bodies and agencies of the European Union, and the Member States acting under Union law, must comply with certain values, among which are minority rights. This reference has been further strengthened by the entry into force of the Treaty of Lisbon.3 As a result of this Treaty, the EU Charter of Fundamental Rights, initially proclaimed in 2000, has been given binding force.4 The Charter prohibits any discrimination based, inter alia, on grounds of membership of a national minority (art. 21), and it states that the Union shall respect cultural, religious and linguistic diversity (art. 22).5 The Treaty of Lisbon also introduces, for the first time, an explicit reference to ‘the rights of persons belonging to minorities’, in listing these rights among the values on which the Union is founded.6

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For a complete overview, see Bruno de Witte, ‘The constitutional resources for an EU minority policy’, in: Gabriel N. Toggenburg (ed.), Minority protection and the enlarged European Union. The Way Forward, Budapest: LGI Books 2004, 109–124. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007 (OJ C 306, of 17 December 2007, p. 1). Article 6(1) of the Treaty on European Union as amended by the Treaty of Lisbon (referring to the EU Charter of Fundamental Rights in the revised form it has been proclaimed, in a revised form, on 12 December 2007 (OJ C 303 of 14.12.2007, p. 1)). See also Art. 2(3) of the Treaty on European Union, as amened by the Treaty of Lisbon (referring to cultural and linguistic diversity within the Union). Article 2, inserted into the Treaty on European Union by the Treaty of Lisbon. In the situation before the entry into force of the Treaty of Lisbon, the list of values on which the Union is founded does not include a reference to the rights of persons belonging to minorities (see Article 6(1) EU). The reference to the rights of persons belonging to minorities was already present in the Treaty establishing a Constitution for Europe, which was signed on 29 October 2004 but failed to achieve ratification following referenda held in France and in the Netherlands in May 2005. The reference to the rights of persons belonging to minorities was not agreed upon during the European Convention convened in February 2002, but was the result of the Intergovernmental Conference of 2003–2004, apparently at the insistance of Hungary. This is not typical: in general, governments have been more reluctant than parliamentary bodies to recognize minority rights; the European Convention responsible for

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We have two different perspectives, therefore, from which to offer an evaluation of the role the Framework Convention for the Protection of National Minorities (FCNM) has played in EU Law, and of the future role it might play in the future. The second section of this paper examines the tools at the disposal of the European Union to promote the rights of minorities in the EU Member States and, thus, to play a positive role in the development of the principles of the FCNM in Europe. The third section of the paper asks how the EU could ensure that the development of EU law will not lead to violations of the FCNM by its Member States or encourage such violations. In part, the distinction between these two ways in which EU Law may interact with the FCNM, as expressed above, is too crude to fully capture the different potential interactions which a full study should include. While the second section sees EU Law as a potential vehicle for the implementation and the development of the FCNM in the EU Member States, the third section sees EU Law as a potential threat to the FCNM, against which certain safeguards should be built. This is, of course, an oversimplification. One of the mechanisms which the third section examines is the political monitoring of the compliance by the EU Member States with the founding values of the Union, provided for under Article 7 EU : while this can hardly be seen as a means through which the EU may contribute to the development of the FCNM and to promote its further expansion by attracting new ratifications – as this provision clearly is not seen as providing the basis for a policy of systematic monitoring of the Member States7 – nor does it seek to ensure that EU Law will not, in itself, encourage violations of the principles of the FCNM. Similarly, it may be argued that the fundamental rights protected as general principles of law in the legal order of the European Union – including, in particular, the principle of equal treatment – have an overarching function to fulfil: they are not only limitations imposed on the law- and policy-making of the Union, they also have an orientative function, guiding the exercise by the institutions of the competences they have been given.8 Nevertheless, they will be examined in the third section of this paper, as their primary role hitherto has been to ensure that fundamental rights are complied with in the exercise of the powers of the Union, rather than to influence the way the existing powers are exercised.

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proposing a draft Constitution for Europe was dominated by representatives of national parliaments and the European Parliament. See hereafter, text corresponding to notes 106–109. See, inter alia, O. De Schutter, ‘Les droits fondamentaux dans le projet européen. Des limites à l’action des institutions à une politique des droits fondamentaux’, in: O. De Schutter and P. Nihoul (eds.), Une Constitution pour l’Europe. Réflexions sur les transformations du droit de l’Union Européenne, Bruxelles: Larcier 2004, 81–117.

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In addition, certain points of contact between EU Law and the rights of minorities are not explored here, as they should be examined in a more complete study.9 For instance, the provisions pertaining to the free movement of persons within the Union may impose on the Member States an obligation that they revise the rules, relating for instance to the adoption of or the spelling of surnames – as in the 1993 case of Konstantinidis10 – which might have such discriminatory effect.11 Thus, in imposing the prohibition of discrimination on grounds of nationality in the field of application of the EC Treaty between nationals from different Member States (Article 18 TFEU),12 the Court considered in the case of Garcia Alvello that the children of a Spanish national and a Belgian national, residing in Belgium and having dual Belgian and Spanish nationality should not be treated – as regards the possibility to change surnames, and in particular, to opt for a surname consisting of the first surname of the father followed by that of the mother as according to Spanish law, rather than of the surname of the father only as in Belgian administrative practice – in the same way as persons who have only Belgian nationality simply on the ground that, in Belgium, persons having Belgian nationality are exclusively regarded as being Belgian.13 Similarly, as illustrated by the Groener case, under the rules pertaining to the free movement of workers in the Community, language requirements which cannot be defended as pursuing a legitimate objective and as proportionate to that objective may be denounced as indirectly discriminatory against nationals from other Member States.14 In that sense, as emphasised recently by Advocate General Poiares Maduro in the opinion he delivered in a case resulting from the action brought by the Kingdom of Spain against the linguistic requirements included in calls for

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For an excellent overview, see Gabriel N. Toggenburg, ‘A remaining share or a new part? The Union’s role vis-à-vis minorities after the enlargement decade’, EUI Working Papers – Law No. 2006/15, 27 pages. See Case C-168/91, Christos Konstantinidis v. Stadt Altensteig (1993) ECR I-1191 (judgment of 30 March 1993) (the application of national German provisions according to which the spelling of the surname of a Greek citizen would not have been in line with the proper (Greek) pronunciation of the name, constitutes a violation of the right to freedom of establishment). For a detailed examination, see Gabriel N. Toggenburg, ‘The EU’s ‘Linguistic Diversity’: Fuel or Brake to the Mobility of Workers’, in: Andrew P. Morris and Samuel Estreicher (eds.), Cross-Border Human Resources, Labor and Employment Issues, Kluwer Law International, 2005, 677–723. The first paragraph of Article 18 TFEU provides: ‘Within the scope of application of the treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited’. Case C-148/02, Carlos Garcia Alvello (1997) ECR I-11613, Judgment of 2 October 2003. Case C-379/87, Groener (1989) ECR 3967, paragraphs 19 and 23. The case is examined in more detail below (see text corresponding to notes 99–101).

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applications for the recruitment of temporary staff to serve with Eurojust,15 ‘respect for and promotion of linguistic diversity are not in any way incompatible with the objective of the common market. On the contrary, against the background of a Community based on the free movement of persons, the case law of the European Court of Justice illustrates that “the protection of the linguistic rights and privileges of individuals is of particular importance.’ ”16 The right of a national of the Union to use his own language in the exercice of his right to move freely from one Member State to another is ‘conducive to his exercise of the right of free movement and his integration into the host state.’17 Advocate General Poiares Maduro further noted: ‘In a Union intended to be an area of freedom, security and justice, in which it is sought to establish a society characterised by pluralism, respect for linguistic diversity is of fundamental importance. That is an aspect of the respect which the Union owes, in the terms of Article 6(3) EU [see now Art 4(2) EU], to the national identities of the Member States. The principle of respect for linguistic diversity has also been expressly upheld by the Charter of Fundamental Rights of the European Union18 and by the Treaty establishing a Constitution for Europe. That principle is a specific expression of the plurality inherent in the European Union.’19 Therefore, to the extent that cases such as Groener, Garcia Alvello or Christos Konstantinidis illustrate a requirement to take into account the need to respect the national identities of the Member States and the linguistic diversity resulting from their coexistence within the Union, it may be said that they require the Member States to acknowledge such differences, and to take them actively into account in the legal and administrative regulations which might affect the freedom of movement of Union nationals. This dimension of the law of the European Union shall not be developed here, however, insofar as the Union citizens exercising their right to move to another Member State are not in principle considered to form a ‘national minority’ in the host State, in the meaning of this concept either under general public international law20 or in the case law of the FCNM’s Advisory Committee.

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Case C-160/03, Kingdom of Spain v. Eurojust, Judgment of 15 March 2005. The opinion of AG Poiares Maduro was delivered on 16 December 2004. Case 137/84, Mutsch (1985) ECR 2681, paragraph 11, and Case C-274/96, Bickel and Franz (1998) ECR I-7637, paragraph 13. Mutsch, paragraph 16, and Bickel and Franz, paragraph 16. See above, text corresponding to note 5; and see below, for a further discussion of the Charter of Fundamental Rights. Para 35 of the opinion. A nuance should be added. Article 27 of the International Covenant on Civil and Political Rights (999 UNTS 171) provides that, in those States in which ethnic, religious or linguistic minorities exist, persons belonging to these minorities shall not be denied the right, in

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Moreover, no legislative measures have been adopted by the European Union specifically in order to ensure that the integration of migrants from other Member States will not take the form of their assimilation, but will respect instead their linguistic identity. More precisely, the only such measure is Council Directive 77/486/EEC of 25 July 1977 on the education of the children of migrant workers21 obliging both the host States and the States of origin of the migrant workers – in order to ensure the possibility of a future reintegration in the State of origin – to adopt ‘appropriate measures to promote the teaching of the mother tongue and of the culture of the country of origin’ of the children of migrant workers. In practice, the directive, the transposition of which by the Member States has been very unsatisfactory, has not been effective; moreover, it is considered not to formulate binding obligations on the Member States.22 For these reasons, while it cannot be denied that such developments, provoked by the need to facilitate the free movement of persons within the EU, might also benefit traditional minorities by their spillover effects, they are left aside in this contribution.

2. The potential role of European Union law in contributing to the implementation of the FCNM This section examines the potential for an active role of the European Union in the promotion of minority rights and, in particular, in encouraging an implementation of the principles of the FCNM by the Member States.

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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. In its General Comment n°23 on this provision, the Human Rights Committee adopts a generous view of the scope of applicability of this provision: ‘Article 27 confers rights on persons belonging to minorities which ‘exist’ in a State party. Given the nature and scope of the rights envisaged under that article, it is not relevant to determine the degree of permanence that the term ‘exist’ connotes. Those rights simply are that individuals belonging to those minorities should not be denied the right, in community with members of their group, to enjoy their own culture, to practise their religion and speak their language. Just as they need not be nationals or citizens, they need not be permanent residents. Thus, migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights. As any other individual in the territory of the State party, they would, also for this purpose, have the general rights, for example, to freedom of association, of assembly, and of expression’ (General Comment n°23: Article 27 (Rights of Minorities), adopted at the fiftieth session of the Committee (1994), in Compilation of the general comments or general recommendations adopted by human rights treaty bodies, HRI/GEN/1/Rev.7, 12 May 2004, at para 5.2.). OJ L 199 of 6.8.1977, 32. Statement by Commissioner Reding, reply to written question E-1336/02, 8 May 2002, OJ C 277 E of 14.11.2002, 190.

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It addresses, first, the question of the legal bases for such a minority rights policy (2.1.). Second, it examines the contribution of the anti-discrimination strategy of the European Union to minority rights (2.2.). Finally, by developing two examples – the role of the Union in the promotion of regional and minority languages and the measures adopted in the field of audio-visual services – it seeks to illustrate the limits encountered by the Union in contributing to the protection and promotion of minority rights (2.3.). It is likely that, in the future, such a minority rights policy will increase in importance, thus countering the complaint that the EU adopts double standards in relation to minority protection. The Fundamental Rights Agency of the European Union, which is formally in existence since 1 March 2007,23 should contribute to this.24 The role of the Agency is to ‘provide the relevant institutions, bodies, offices and agencies of the Community and its Member States when implementing Community law with assistance and expertise relating to fundamental rights in order to support them when they take measures or formulate courses of action within their respective spheres of competence to fully respect fundamental rights’ (Art. 2 of the Founding Regulation). It is likely that it will take a number of initiatives in this area, including recommendations to take legislative iniatives or to better mainstream the protection of the rights of minorities in the law- and policy-making processes of the EU. Indeed, in its resolution on the Multi-Annual Framework (MAF) of the Agency for 2007–2012 as proposed initially by the European Commission,25 the European Parliament requested from the Council that it make a reference in the MAF to ‘traditional and linguistic’ minorities, in order to encourage a broad interpretation of the notion of minorities and to ensure that not only ethnic minorities would be considered in the work programme of the Agency.26 The Council partly followed that suggestion, by referring to ‘discrimination based on sex, race or

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Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights, OJ L 53, 22.2.2007, 1 (“Founding Regulation”). On the role of the Fundamental Rights Agency and the dynamizing impact it could have on the exercise of the EU’s competences in the area of fundamental rights, see O. De Schutter, ‘The EU Fundamental Rights Agency: Genesis and Potential’, in: Kevin Boyle (ed.), New Institutions of Human Rights Protection, Oxford University Press, Collected Courses of the Academy of European Law (European University Institute, Florence), Oxford: Oxford University Press 2009, 93–135; and Gabriel N. Toggenburg, ‘The role of the new EU Fundamental Rights Agency: Debating the ‘sex of angels’ or improving Europe’s human rights performance?’, Eur. Law Review, vol. 33, n° 3 (2008), 385–398. Commission Proposal for a Council decision implementing Regulation (EC) No 168 (2007) as regards the adoption of a Multiannual Framework for the European Union Agency for Fundamental Rights for 2007–2012, COM(2007)515 final. Resolution of 17 January 2008 (P6 TA(2008)0014) (rapp. M. Cashman, report A6-0514/2007 of 20 December 2007, and amendment n°13).

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ethnic origin, religion or belief, disability, age or sexual orientation and against persons belonging to minorities and any combination of these grounds (multiple discrimination)’ among the thematic areas the Agency should focus on during the first five years of its operation.27 The expectations are high. Are the tools sufficient? 2.1. The legal bases for a minority rights policy of the EU Since the entry into force of the Treaty of Amsterdam on 1 May 1999, the Union may ‘take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age of sexual orientation’ (Art. 19 TFEU, x-Art. 13 EC). This enables the Council of the EU, acting unanimously, to protect ethnic and religious minorities from discrimination. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin28 (hereinafter referred to as the ‘Racial Equality Directive’) and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation29 (hereinafter referred to as the ‘Employment Equality Directive’) were adopted on this legal basis shortly after the Community had received this power. The Racial Equality Directive obliges the Member States to protect all persons from discrimination on grounds of race or ethnic origin in employment and occupation (including conditions for access to employment, to self-employment and to occupation, access to vocational guidance, vocational training, advanced vocational training and retraining, employment and working conditions, and membership of and involvement in an organisation of workers or employers), social protection (including social security and health care), social advantages, education, and access to and supply of goods and services which are available to the public, including housing. The Employment Equality Directive obliges the Member States to protect all persons from discrimination on grounds, inter alia, of religion or belief, in employment and occupation. While Article 19 TFEU constitutes the most relevant provision for the adoption of measures aiming at the protection of minorities in EU Law, other provisions of the treaties may also be mentioned.30 The EU may encourage 27

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Decision of 28 February 2008 as regards the adoption of a Multi-Annual Framework for the European Union Agency for Fundamental Rights for 2007–2012, OJ L 63 of 7.3.2008, 14. OJ L 180 of 19.7.2000, 22. OJ L 303 of 2.12.2000, 16. See for a full list, in addition to the study by Bruno de Witte cited above in note 2, the European Parliament resolution on the protection of minorities and anti-discrimination policies in an enlarged Europe (2005/2008(INI) ), adopted on 8 June 2005 and based on the report A6-0140/2005 of 10 May 2005 (rapp. Cl. Moraes). See also EU Network of Independent

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cooperation between Member States and supplement their action, ‘while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity’ (Art. 165 TFEU, ex-Article 149 EC). Under Article 167 TFEU (exArticle 151 EC), the Community may encourage cooperation between Member States and, if necessary, support and supplement their action in the field of culture. It may legislate in order to promote the freedom to provide services throughout the Union (Art. 56 TFEU, ex-Article 49 EC). It may adopt measures establishing the internal market, including by harmonising national rules (Art. 114 and 15 TFEU, ex-Art. 95 and 94 EC). Still other provisions of the treaties could be listed, insofar as they allocate to the Union certain powers which may be used in order to implement the principles of the Council of Europe Framework Convention for the Protection of National Minorities. Finally, certain soft law mechanisms of coordination in the employment or social inclusion fields have been relied upon in order to encourage the EU Member States to improve the integration of minorities. In particular, since the European Employment Strategy was launched in 1997, it includes a specific concern of tackling discrimination in employment in order, in particular, to improve access to employment by visible minorities. The revised Employment Guidelines, based on Article 128 of the EC Treaty (now Art. 148 TFEU), provide that the Member States should seek to make their employment markets more inclusive, and that ‘Combating discrimination, promoting access to employment for disabled people and integrating migrants and minorities are particularly essential’ in this regard.31 2.2. The anti-discrimination strategy of the EU and the principles of the FCNM The existing bases for a minority rights policy of the Union are far from having been explored to their fullest potential. The Racial Equality Directive may be seen as ensuring a protection of ethnic and racial minorities from discrimination; the Employment Equality Directive protects from discrimination on grounds of religion in the field of employment and occupation.32

31

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Experts on Fundamental Rights, Thematic Comment n°3: the rights of minorities in the Union (April 2005), available at: http://ec.europa.eu/justice_home/cfr_cdf/index_en.htm. Council Decision of 12 July 2005 on Guidelines for the employment policies of the Member States (OJ L 205 of 6.8.2005, p. 21). This wording follows the proposal of the Commission, made on 12 April 2005 (COM(2005)141 final) (see the explanations to guideline 18 (To ensure inclusive labour markets for job-seekers and disadvantaged people) ). Not all racial, ethnic or religious groups whose members benefit from a protection under these directives will be considered ‘national minorities’ in the understanding of the Framework Convention for the Protection of National Minorities. Although Article 5 of the FCNM imposes on the State Parties an obligation to ‘undertake to promote the conditions necessary for

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But these instruments, while extraordinarily important in improving the legislative framework against discrimination in the Member States, remain confined to a traditional non-discrimination approach, and may therefore be insufficient to promote the effective integration of ethnic and religious minorities in the Union33 – and indeed, this is not part of their ambition.34 Specifically, while both directives provide for the shifting of the burden of proof in discrimination cases,35 these directives do not impose that the Member States provide for the possibility of establishing a presumption of discrimination by bringing forward statistical data which would illustrate the disproportionate impact of certain measures on ethnic or religious minorities: the Member States have the choice whether or not to allow the alleged victim to rely on such statistics, where such statistics may be found. The facts from which it may be inferred that there has been a direct or indirect discrimination are to be left to the appreciation of national judicial or other competent bodies, in accordance with rules of national law or practice. The Preambles to the

33

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persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage’, it is understood that ‘This provision does not imply that all ethnic, cultural, linguistic or religious differences necessarily lead to the creation of national minorities’ (Explanatory Report, para 43). Of course, linguistic minorities are not meant to benefit from these instruments, which do not prohibit discrimination on grounds of language. There have been proposals, during the European Convention of 2002–2003 and the following Inter-governmental Conference of 2003–2004, to expand the reach of former Article 13 EC in order to attribute to the Union a competence to adopt measures to combat discrimination on grounds of language. These proposals have failed, however. See, in particular, the resolution adopted by the European Parliament with recommendations to the Commission on European regional and lesser-used languages – the languages of minorities in the EU – in the context of enlargement and cultural diversity (2003/2057(INI) ) (P5_TA(2003)0372), where the Parlement asks the Commission to ‘ensure that Article 13 TEC also covers discrimination on the grounds of language’ (para 21 of the Recommendation 2 relating to the Programme for linguistic diversity (to include regional and minority languages) and language learning). For a more detailed discussion on this, see Olivier De Schutter, ‘Three Models of Equality and European Anti-discrimination law’, Northern Ireland Legal Quarterly, vol. 57, n° 1 (2005), 1–56; and Olivier De Schutter and Annelies Verstichel, ‘Integrating the Roma into European Society: Time for a New Initiative’, European Yearbook of Minority Issues, vol. 4, 2004/5, 411–443. Both Art. 8(1) of the Racial Equality Directive and Art.10(1) of the Employment Equality Directive provide that ‘when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment’.

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Directives add that these national rules ‘may provide in particular for indirect discrimination to be established by any means including on the basis of statistical evidence’.36 It is therefore left to the Member States to decide whether or not they will allow for a presumption of discrimination to be established by reliance on statistics. They are not obliged to provide for this possibility. Similarly, under the Racial Equality and the Employment Equality Directives, the EU Member States have the choice whether or not to adopt positive action measures in favour of certain disadvantaged groups, whose integration may not be realised only by relying on the prohibition of (direct and indirect) discrimination. It may be argued however, that in certain cases of systematic inequality – or of what might be called structural discrimination – positive action should not only be allowed, but obligatory, in favour of groups who are politically powerless and thus cannot influence the political process in their favour in order to obtain the adoption of such measures. The International Convention for the Elimination of All Forms of Racial Discrimination,37 which all the EU Member States have ratified, not only provides in Article 1(4) that positive action measures will not be considered discriminatory in the meaning of the Convention,38 but that the adoption of such measures may be required under certain conditions: ‘State Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.’39

In its General recommendation XXVII on discrimination against Roma adopted in 2000, the Committee for the Elimination of Racial Discrimination,

36 37

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15th Recital of the Preamble. Opened for signature by the UN General Assembly Res. 2106(XX) of 21 December 1965; entered into force on 4 January 1969. Article 1(4) provides that: ‘Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a con sequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved’. Article 2(2) ICERD.

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although not making explicit reference to Article 2(2) ICERD, encourages the States Parties to ‘take special measures to promote the employment of Roma in the public administration and institutions, as well as in private companies’, and to ‘adopt and implement, whenever possible, at the central or local level, special measures in favour of Roma in public employment such as public contracting and other activities undertaken or funded by the Government, or training Roma in various skills and professions’.40 Under the International Covenant on Civil and Political Rights, the UN Human Rights Committee noted that ‘the principle of equality sometimes requires State Parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant.’41 Again, this suggests that positive action may be not only allowable in certain circumstances, but even obligatory. Nor is this view isolated among the human rights treaty bodies. The UN Committee on Economic, Social and Cultural Rights considered in its first General Comment that ‘special attention [should] be given to any worse-off regions or areas and to any specific groups or subgroups which appear to be particularly 40

41

Committee for the Elimination of Racial Discrimination, General recommendation XXVII on discrimination against Roma adopted at the fifty-seventh session (2000), in: Compilation of the General Comments or General Recommendations adopted by Human Rights Treaty Bodies, UN doc. HRI/GEN/1/Rev.7, 12 May 2004, at p. 219, paras 28–29. Similarly, in its General recommendation XXIX on article 1, paragraph 1, of the Convention (Descent), adopted in 2002, the CERD Committee recommends the adoption of ‘special measures in favour of descent-based groups and communities in order to ensure their enjoyment of human rights and fundamental freedoms, in particular concerning access to public functions, employment and education’, as well as to ‘educate the general public on the importance of affirmative action programmes to address the situation of victims of descent-based discrimination’ and to take ‘special measures to promote the employment of members of affected communities in the public and private sectors’. See Committee for the Elimination of Racial Discrimination, General recommendation XXIX on article 1, paragraph 1, of the Convention (Descent), adopted at the sixty-first session in 2002, in: Compilation of the General Comments or General Recommendations adopted by Human Rights Treaty Bodies, UN doc. HRI/ GEN/1/Rev.7, 12 May 2004, at p. 226, paras 1, f) and h), and 7, jj). Human Rights Committee, General Comment n°18: Non-discrimination (1989), in: Compilation of the General Comments or General Recommendations adopted by Human Rights Treaty Bodies, UN doc. HRI/GEN/1/Rev.7, 12 May 2004, at p. 146, para 10.

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vulnerable or disadvantaged’.42 It noted in its General Comment No. 13: The right to education (art. 13), that the adoption of ‘temporary special measures intended to bring about de facto equality for men and women and for disadvantaged groups’ is not a violation of the right to non-discrimination with regard to education, ‘so long as such measures do not lead to the maintenance of unequal or separate standards for different groups, and provided they are not continued after the objectives for which they were taken have been achieved’.43 It should therefore come as no surprise therefore that, in the conclusions of his 2002 report on this issue, M. Bossuyt notes that ‘a persistent policy in the past of systematic discrimination of certain groups of the population may justify – and in some cases may even require – special measures intended to overcome the sequels of a condition of inferiority which still affects members belonging to such groups’.44 At the same time, while the principle seems to be

42

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Committee on Economic, Social and Cultural Rights, General comment No. 1: Reporting by State Parties, adopted at the third session of the Committee (1989), in Compilation of the General Comments or General Recommendations adopted by Human Rights Treaty Bodies, UN doc. HRI/GEN/1/Rev.7, 12 May 2004, at p. 9, para 3. See also, e.g. General comment No. 4: The right to adequate housing (Art. 11 (1) of the Covenant), adopted at the sixth session (1991), at para 11 (‘State Parties must give due priority to those social groups living in unfavourable conditions by giving them particular consideration. Policies and legislation should correspondingly not be designed to benefit already advantaged social groups at the expense of others’). See, generally, M. Craven, The International Covenant on Economic, Social and Cultural Rights, a perspective on its development, Oxford: Clarendon Press, 1995, 126 (emphasizing the obligation of States to focus their efforts on the most vulnerable and disadvantaged groups in society, which may include preferential treatment in favour of the members of these disadvantaged groups). Committee on Economic, Social and Cultural Rights, General Comment No. 13: The right to education (1999), in Compilation of the General Comments or General Recommendations adopted by Human Rights Treaty Bodies, UN doc. HRI/GEN/1/Rev.7, 12 May 2004, at p. 72, para 32. ‘The concept and practice of affirmative action’, Final report submitted by Mr. Marc Bossuyt, Special Rapporteur, in accordance with resolution 1998/5 of the Sub-Commission for the Promotion and Protection of Human Rights, UN doc. E/CN.4/Sub.2/2002/21, 17 June 2002, para 101 (emphasis added). The Committee on the Elimination of Discrimination against Women also has noted that ‘the International Convention on the Elimination of All Forms of Racial Discrimination (…) mandates temporary special measures. The practice of treaty monitoring bodies, including the Committee on the Elimination of Racial Discrimination, the Committee on Economic, Social and Cultural Rights, and the Human Rights Committee, shows that these bodies consider the application of temporary special measures as mandatory to achieve the purposes of the respective treaties. Conventions adopted under the auspices of the International Labour Organization, and various documents of the United Nations Educational, Scientific and Cultural Organization also explicitly or implicitly provide for

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agreed that positive action measures may be required from the State in order to ensure real and effective equality under its juridiction, it will be typically difficult for any individual seeking to benefit from such a scheme to impose on the State to take an initiative in this regard, considering the broad margin of appreciation which the State authorities are left as regards the choice of the means through which to achieve substantive equality and the broad panoply of measures they have at their disposal. A deepening of the debate on the notion of ‘structural discrimination’ might serve in the future to clarify the conditions at which, under the international law of human rights, a State may be obliged to adopt positive action measures.45 Structural discrimination should not be seen simply as a particularly serious form of discrimination. Its defining characteristic is, rather, that it cuts across different spheres (education, employment, housing and access to health care in particular), resulting in a situation where the prohibition of discrimination in any one of these spheres or, indeed, in all of them, will not suffice to ensure effective equality. For instance, it will not be sufficient to prohibit discrimination in employment if inequalities persist in access to education or vocational training, thus leading to a situation of under-representation of the group concerned in employment, in spite of the effective prohibition of (direct or indirect) discrimination in that sphere. And it will not be sufficient to prohibit discrimination in education if, due to segregated housing, the children of one particular minority community are disproportionately represented in certain educational establishments and never or almost never have access to other establishments attended by children from the majority group, for instance due to the lack of public transportation allowing these minority children to travel from their neighborhood to the mainstream schools. Structural discrimination thus should be understood as a situation where, due to the extent of the discrimination faced by a particular segment of society, more is required in order to achieve effective equality than to outlaw direct and indirect discrimination.

45

such measures’: Committee on the Elimination of Discrimination against Women, General recommendation No. 25: Article 4, paragraph 1 of the Convention (temporary special measures), adopted at the thirtieth session of the Committee (2004), in Compilation of the General Comments or General Recommendations adopted by Human Rights Treaty Bodies, UN doc. HRI/GEN/1/Rev.7, 12 May 2004, at p. 282, n. 3. See for a detailed exploration of this notion Christopher McCrudden, ‘Institutional Discrimination’, (1982) 2(3) Oxford Journal of Legal Studies 303–367. For a use of this notion in order to address the situation of the Roma in Europe, see O. De Schutter and A. Verstichel, ‘Integrating the Roma into European Society: Time for a New Initiative’, cited above n. 34. See also the reasoning behind the proposal for the adoption of an instrument aimed specifically at ensuring the desegregation of the Roma: EU Network of Independent Experts on Fundamental Rights, Thematic Comment No. 3: The Rights of Minorities in the European Union, March 2005, referred to above.

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Under Article 4 of the Framework Convention for the Protection of National Minorities, State Parties are to adopt ‘adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority’, taking due account in this respect of ‘the specific conditions of the persons belonging to national minorities’ (Article 4(2) ); such measures are specifically designated as not being discriminatory in character (Article 4(3) ). The Advisory Committee of the Framework Convention encourages the introduction of positive measures in favour of members of minorities which are particularly disadvantaged.46 Thus, in an Opinion on Croatia, the Advisory Committee ‘considers that one key to reaching full and effective equality for persons belonging to national minorities is the launching of additional positive measures in the field of employment and it supports efforts to seek financing for such measures. In this regard, the situation of persons belonging to the Serb minority merits particular attention, taking into account the past discriminatory measures, stirred by the 1991–1995 conflict, aimed at curtailing their number in various fields of employment, ranging from law-enforcement to education’.47 In an Opinion on the Czech Republic, the Advisory Committee ‘notes with deep concern that many Roma in the Czech Republic face considerable socio-economic difficulties in comparison to both the majority and other minorities, in particular in the fields of education, employment and housing. (…) The situation calls for the preparation and implementation of specific measures to realise full and effective equality between Roma and persons belonging to the majority as well as to other minorities’.48 A very similar observation was made with respect to the situation of the Roma in Hungary.49 In the Opinion it adopted on Ireland on

46

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See also, e.g. Opinion on Azerbaijan, 22 May 2003, ACFC/OP/I(2004)001, para. 28; Opinion on Ukraine, 1 March 2002, ACFC/OP/I(2002)010, para. 27; Opinion on Serbia and Montenegro, 27 November 2003, ACFC/OP/I (2004)002, para 38. Opinion on Croatia, 6 February 2002, ACFC/INF/OP/I(2002)003, para. 26. Opinion on the Czeck Republic, 25 January 2002, ACFC/INF/OP/I(2002)002, para 29. In para 30, the Advisory Committee further ‘welcomes the decision of the Czech authorities to adopt the ‘Concept of the Government policy towards the members of the Roma community, supporting their integration into society’ (Resolution of the Government of the Czech Republic No. 599 of 14 June 2000). It also welcomes the fact that the Government has already launched a strategic action plan for the period 2001–2020, in order to implement the abovementioned policy. The Advisory Committee is of the opinion that greater participation of Roma women should be ensured in that process’. In an Opinion on Hungary it adopted on 22 September 2000, the Advisory Committee ‘notes with concern, that, as the Government openly recognizes, the Roma/Gypsies in Hungary face a broad range of serious problems to a disproportionate degree, be it in comparison to the majority or in comparison to other minorities. This state of affairs certainly justifies that

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22 May 2003, the Advisory Committee emphasised the need for setting targets to include Travellers in general recruitment strategies.50 In sum, the instruments adopted hitherto on the basis of Article 13 EC (now Art. 19 TFEU) have not gone as far as they might have, had the international human rights obligations of the Member States generally, and the requirements of the FCNM in particular, been more systematically taken into account in their formulation. But the absence of any obligation imposed on the Member States either to allow victims of discrimination to establish a presumption of discrimination by putting forward certain statistics demonstrating the disproportionate impact certain measures may have on certain disadvantaged groups, or to adopt certain positive action measures in favour of such groups, also reflect a deeper disagreement among the Member States as to the legitimacy and desirability of an approach towards the integration of minorities based on the identification of certain individuals with the group they are presumed to belong to. Both the Council of Europe’s European Commission against Racism and Intolerance (ECRI) and the Advisory Committee of the FCNM insist on the need for States to collect precise data as to the situation of minority groups, in order to combat discrimination more effectively.51 In practice however, only a minority of the EU Member States have developed such monitoring strategies. The authors of the 2004 Comparative Study on the collection of data to measure the extent and impact of discrimination within the United States, Canada, Australia, Great-Britain and the Netherlands noted the paradox underlying the debate in Europe on the implementation of anti-discrimination strategies: ‘Although there is a lack of statistical indicators to assess the extent of discrimination in the Member States, the belief is widely shared that discrimination is widespread and that there is a need to mobilise all social institutions and stakeholders to reduce this discrimination. Nevertheless, the collection of statistics relating to ethnic or racial origin, religion, disability or sexual orientation has been the subject of strong resistance. The experience of the countries under study in this

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specific measures be designed and implemented to tackle these problems’ (ACFC/INF/ OP/I(2001)004, at para 18). Opinion on Ireland, 22 May 2003, ACFC/INF/OP/I(2004)003. For the views of the ECRI, see the Third report on Hungary, 5 December 2003, CRI (2004) 25, para 93 and Third report on the Czech Republic, 5 December 2003, CRI (2004) 22, para 86; see also ECRI General Policy Recommendation No. 1 on combating racism, xenophobia, antiSemitism and intolerance, 4 October 1996, CRI (96) 43 rev For the views of the Advisory Committee of the Framework Convention (ACFC), see the Opinion on Slovakia, 22 September 2000, ACFC/OP/I(2000)001, para. 21; Opinion on Croatia, 6 April 2001, ACFC/OP/I(2002)003, para 29; Opinion on the Czech republic, 6 April 2001, ACFC/OP/I(2002)002, para 28.

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report demonstrates that the lack of sufficient statistics to illustrate and evaluate discrimination is not compatible with establishing an operational scheme whose main characteristic is the intensive use of statistical data. It appears necessary – and possible – to transcend the European paradox opposing the fight against discrimination and the production of ‘sensitive’ statistics.’52

With regard to the contribution of the European Union anti-discrimination strategy to the implementation of the principles of the FCNM, therefore, the fundamental question is not simply whether the EU could go further – it is clear that it could. It is whether it will be possible, in time, to achieve a sufficiently strong consensus within the EU Member States to move in a direction which may be perceived as opting for one model of integration (based on the acknowledgement and promotion of differences) rather than another, competing model (based on integration by assimilation, and the imposition of uniform standards to all, in combination with a robust protection from discrimination).53 In 2006, the European Parliament adopted a resolution following the presentation by the Commission of a communication entitled ‘Non-discrimination and equal opportunities for all – a framework strategy’,54 in which the Parliament insists that: ‘if blatant inequalities of an ‘endemic’, ‘structural or even ‘cultural’ nature are to be remedied and a seriously compromised balance is thus to be restored, it may be necessary in certain cases for a temporary exception to be made to the concept of equality based on the individual in favour of group-based ‘distributive justice’ through the adoption of ‘positive’ measures’

and that: ‘notwithstanding cultural, historical or constitutional considerations, data collection on the situation of minorities and disadvantaged groups is critical and that policy and legislation to combat discrimination must be based on accurate data.’55

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Comparative Study on the collection of data to measure the extent and impact of discrimination within the United States, Canada, Australia, Great-Britain and the Netherlands (Medis Project (Measurement of Discriminations), co-ord. P. Simon (INED – Economie & Humanisme), August 2004, 87. The first model is perhaps most clearly illustrated by the approach of the United Kingdom, and the second model by that of France. For an attempt to conceptualise the differences between the two models, see A. Geddes & V. Guiraudon, ‘Britain, France and EU AntiDiscrimination Policy’: The Emergence of an EU Policy Paradigm’, West European Politics, 27, 2004, 334–353. COM(2005)0224. European Parliament resolution on non-discrimination and equal opportunities for all – A framework strategy (2005/2191(INI) ), 8 May 2006 (rapp. T. Zdanoka), paras 7 and 14.

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While this resolution is one sign among many others that the debate continues on this issue,56 it is not at all clear that the balance has decisively shifted from the ‘republican’ model, emphasising sameness and integration through assimilation, to the ‘multiculturalist’ model, emphasising differences and integration through their recognition; indeed it is unclear whether the antidiscrimination strategy of the EU will lead to the definition of one model specific to the EU and common to all the Member States: for the moment at least, this strategy has preserved sufficient room for manoeuvre for each Member State, and it has proven to be compatible with a wide variety of approaches towards the question of how to best ensure the inclusion of minorities. Whether such an agnostic stance will be tenable in the long term remains to be seen. EU law imposes limits to the use of positive action measures,57 as well as to the processing of personal data which may be required for the implementation of such measures.58 It therefore already sets certain limits to the extent to which the EU Member States may wish to move ‘beyond’ the 56

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The resolution was strongly influenced by the positions adopted by the EU Network of Independent Experts on Fundamental Rights in its Thematic Comment n° 3 on the rights of minorities in the European Union, published in April 2005. That Comment in turn resulted to a large extent from an attempt to develop an anti-discrimination agenda for the EU which would better take into account the principles from the FCNM and from other instruments which protect minority rights in the international law of human rights. The general view adopted by the European Court of Justice in the area of equality of treatment between men and women has been that positive action measures are only acceptable to the extent that they comply with the principle of proportionality, and thus remain within the limits of what is appropriate and necessary in order to achieve the aim in view. The aim being to eliminate or reduce actual instances of inequality which may exist in the reality of social life, any schemes which establish an automatic and absolute preference in favour of women are considered in violation of the principle of equal treatment, and incompatible with the requirements of Community Law. See Case C-450/93, Kalanke (1995) ECR I-3051; Case C-409/95, Marschall v Land Nordrhein Westfalen (1997) ECR I-6363; Case C-158/97, Badeck (2000) ECR I-1875; Case C-407/98, Abrahamsson v Fogelqvist (2000) ECR I-5539; Case C-476/99, Lommers, (2002) ECR I-2891; Case C-319/03, Serge Briheche (2004) ECR I-8807. Reference can also be made to the judgment delivered by the EFTA Court on 24 January 2003, Surveillance Authority v The Kingdom of Norway, Case E-1/02, EFTA. These cases were decided under Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, 40), in its original version. After defining the principle of equal treatment as the absence of any discrimination on grounds of sex, whether direct or indirect, Directive 76/207/EEC provided in Article 2(4) that the Directive ‘shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities’. Directive 95/46/CE of the European Parliament and the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ L 28 of 23.11.1995, 31.

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anti-discrimination law model of the Racial Equality and Employment Equality Directives, in order to improve the situation of certain segments of the community by affirmative measures going beyond the elementary requirement that the members of such categories shall not be discriminated against. We should thus consider with caution the statement contained in both the Racial Equality and the Employment Equality Directive, according to which these instruments only set minimum requirements for the Member States, and that the Member States therefore ‘may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment’ than those laid down in these instruments.59 This statement is misleading to the extent that it underestimates that the Equality Directives themselves impose severe restrictions, in particular, on the use of positive action measures in order to compensate for, or prevent, certain disadvantages linked to race or ethnic origin or to religion60; and of course, it does not imply that any measures seeking to implement the principle of equal treatment may disregard the requirements of European Union law, in particular as regards the protection of personal data. 2.3. The other contributions of the EU to the implementation of the principles of the FCNM While the adoption of measures to combat discrimination on the basis of Article 19 TFEU clearly makes the most direct contribution to an EU minority

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Article 6(1) of the Racial Equality Directive; Article 8(1) of the Employment Equality Directive. The debate concerning the implementation of the 1998 Belfast Agreement in the Police Service of Northern Ireland (PSNI) provides one particularly vivid expression of the dilemmas facing EU anti-discrimination law when confronted by national situations which adopt schemes based on the need to remedy imbalances between communities, by affirmative action. Following the recommendations of the Patten Commission about the means by which the Police Service of Northern Ireland was to become more representative of the community it serves, the Police (Northern Ireland) Act 2000 introduced new recruitment mechanisms in the PSNI, through the creation of a pool of candidates who are qualified for appointment as police trainees, followed by the selection from that pool of the same number from each category (Catholics and Protestants). Due to the fears that these mechanisms might not be compatible with the Employment Equality Directive, even taking into account the allowability of positive action measures under Article 7(1) of that Directive, the United Kingdom negotiated an exemption from its provisions: see Article 15(1) of the Employment Equality Directive. I am grateful to Christopher McCrudden for having suggested to me this example. See further his piece: ‘Consociationalism, Equality and Minorities in the Northern Ireland Bill of Rights Debate : The Role of the OSCE High Commissioner on National Minorities’, in: J. Morison et al. (eds), Judges, Transition and Human Rights, OUP 2007.

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rights policy, other competences attributed to the Union may also serve as tools in the implementation of such a policy. The possibilities remain limited, however: in many areas which are relevant to the protection of minority rights, the EU has had no choice but to resort to soft law measures, such as the funding of certain programmes or the encouragement of an improved coordination between the initiatives adopted by the Member States. Even where the Union does have competences to adopt legislative measures, the potential of European Union law has remained under-utilised, in the absence of a systematic attempt to exercise the existing competences in order to implement the values of the FCNM, including those values which are replicated in the EU Charter of Fundamental Rights. In other words, the political will to counter the alleged double standards concerning minority protection by adopting a coherent minority protection policy in line with the prescripts of the FCNM is not there yet. Two examples may serve as illustrations. a) The promotion of regional and minority languages The measures adopted by the EU to promote regional and minority languages illustrate the first difficulty. Implementing in that respect Article 22 of the EU Charter of Fundamental Rights,61 the EU has taken certain actions to safeguard and promote the regional and minority languages of Europe.62 In particular, it has supported the European Bureau for Lesser Used Languages, a network representing lesser-used language communities in all the EU Member States, and the Mercator information network. Up to the year 2000, it has also funded projects for practical initiatives aimed at protecting and promoting regional and minority languages. However, the judgment adopted by the European Court of Justice on 12 May 199863 has led to the suppression of the budget line initially established in 1982, upon the request of the

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In its resolution on the role of regional and local authorities in European integration (2002/141(INI) ), the European Parliament has moreover called for the following new article to be inserted in the EC Treaty: ‘The Community shall, within its spheres of competence, respect and promote linguistic diversity in Europe, including regional or minority languages as an expression of that diversity, by encouraging cooperation between Member States and utilising other appropriate instruments in the furtherance of this objective’. In accordance with this notion as it is used in the 1992 European Charter for Regional or Minority Languages, these are indigenous languages traditionally spoken by part of the population of Member States of the European Union, or EEA countries. This definition does not include the languages of immigrant communities, artificially created languages or dialects of an official language of the state in question. Case C-106/96, United Kingdom and Others v. Commission, (1998) ECR I-2729 (deciding that every significant EC expenditure should be grounded in the prior adoption of a legislative act).

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European Parliament, for projects seeking to promote regional and minority languages.64 The European Parliament has strongly advocated a more active role for the Community in the promotion of regional and minority languages. In 2003, it adopted a resolution following upon the European Year of Languages 2001,65 in which it expressed its support for a multi-annual programme on linguistic diversity and language learning, part of the financial appropriations of which, in the view of the Parliament, should be ‘specifically earmarked for concrete measures and for regional and less widely used languages. The aim of these measures is to reinforce the European dimension with a view to promoting and protecting regional and minority languages and cultures’. In a communication on ‘Promoting Language Learning and Linguistic Diversity: An Action Plan 2004–2006’ adopted only days after the Parliament had passed its resolution,66 the Commission suggested that a programme such as Socrates67 may in the future ‘play a greater part in promoting linguistic diversity by funding projects to raise awareness about and encourage the learning of so-called ‘regional’ ‘minority’ and migrant languages, to improve the quality of the teaching of these languages, to improve access to learning opportunities in them; to encourage the production, adaptation and exchange of learning

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This action line was called Action line for the Promotion and Safeguard of minority and regional languages and cultures. European Parliament resolution with recommendations to the Commission on European regional and lesser-used languages - the languages of minorities in the EU - in the context of enlargement and cultural diversity (2003/2057(INI) ), 14 July 2003, P5_TA(2003)0372 (rapp. M. Ebner). See the European Parliament and Council Decision No 1934/2000/EC of 17 July 2000 on the European Year of Languages 2001, OJ L 232, 14.9.2000, 1. COM(2003)449 final, of 24.7.2003. Decision n° 253/2000/EC of the European Parliament and the Council of 24 January 2000 establishing the second phase of the Community programme in the field of education ‘Socrates’ (OJ L 28 of 3.2.2000, 1) includes (as action 4) the Lingua programme on the teaching and learning of languages, the aim of which is – according to the description provided in Decision 253/2000/EC – to ‘support transversal measures relating to the learning of languages, with a view to helping to promote and maintain linguistic diversity within the Community, to improve the quality of language teaching and learning and to facilitate access to life-long language learning opportunities tailored to individual requirements’. Under the programme, language teaching covers the teaching and learning as foreign languages of all the 21 Treaties languages and Lëtzeburgesch. Although Decision 253/2000/EC states that ‘Special attention shall be paid throughout the programme to promoting the less widely used and less widely taught of these languages’, the Socrates programme is not focused on the preservation of minority languages; on the contrary, it seeks to promote the learning and teaching of the European languages which are most widely in use and does not include the promotion of languages such as Breton, Catalan or Welsh.

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materials in them and to encourage the exchange of information and best practice in this field. In the longer term, all relevant Community programmes and the Structural Funds should include more support for linguistic diversity, inter alia for regional and minority languages, if specific action is appropriate’.68 The Commission also invites national and regional authorities to ‘give special attention to measures to assist those language communities whose number of native speakers is in decline from generation to generation, in line with the principles of the European Charter on Regional and Minority languages’.69 The communication announces that from 2004 onwards, support for projects relating to regional and minority languages will be made available from mainstream programmes rather than specific programmes for these languages, and that the Commission’s annual monitoring report on culture will monitor the implementation of this new approach.70 This response of the Commission to the wishes expressed by the European Parliament therefore has been encouraging. At the same time, it illustrates the difficulties of achieving an objective such as the promotion of regional and minority languages without an appropriate legal basis, or in fields in which the Union can do no more than support and supplement the actions of the Member States.71 b) The regulation of audio-visual services The regulation of audio-visual media provides an illustration of the underutilisation by the EU even of the competences it has at its disposal to protect and promote the rights of minorities. In principle, the EU Member States are at liberty to seek to promote cultural, religious and linguistic pluralism, by the adoption of national laws and regulations even where this imposes certain restrictions to fundamental economic freedoms guaranteed under the EU 68 69 70 71

COM(2003)449 final, 12. Id. Ibid., at 19. The Socrates programme is based on Articles 149 and 150 of the EC Treaty (now Art. 165 and 166 TFEU). Art. 165 TFEU provides that the EU ‘shall contribute to the development of quality education by encouraging cooperation between Member States’ through a range of actions, such as promoting mobility, exchanges of information or the teaching of the languages of the European Union. The Treaty also contains a commitment to promote life-long learning for all the Union’s citizens: Art. 166 TFEU provides that the EU ‘shall implement a vocational training policy which shall support and supplement the action of the Member States, while fully respecting the responsibility of the Member States for the content and organisation of vocational training’. Thus, the EU supports and supplements the actions of the Member States in the field of education while respecting their responsibility for the content of teaching and the organisation of national education systems. In this field, the EU plays a role complementary to that of the Member States: its objective is to add a European dimension to education, to help to develop quality education and to encourage life-long learning.

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treaties. For instance, in three cases of 1991 and 1993, the European Court of Justice was confronted with alleged restrictions to the freedom to provide audio-visual services contained in the Dutch law on the media (Mediawet).72 Under Article 31 of the Mediawet, radio and television broadcasting time on the national Dutch network is allocated by the Commissariaat voor de Media to broadcasting organisations, which are associations of listeners or viewers set up in order to represent a given social, cultural, religious or spiritual trend indicated in their statutes. These organisations must seek to ensure the production of programmes for broadcasting, and thus satisfy the social, cultural, religious and spiritual needs of the Dutch people. When confronted with the question of the compatibility of this system with the rules of the internal market, the Court noted that ‘the Mediawet is designed to establish a pluralistic and non-commercial broadcasting system and thus forms part of a cultural policy intended to safeguard, in the audio-visual sector, the freedom of expression of the various (in particular social, cultural, religious and philosophical) components existing in the Netherlands’.73 It recalled that ‘those culturalpolicy objectives are objectives relating to the public interest which a Member State may legitimately pursue by formulating the statutes of its own broadcasting organizations in an appropriate manner’.74 This case-law has been reaffirmed recently by the Court of Justice.75 Apart from this liberty recognised by the EU Member States, within certain limits, EU law imposes on them certain obligations in the media sector, which

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On the Dutch Law of 21 April 1987 laying down rules on the broadcasting of radio and television programmes, royalties from broadcasting and measures for support of the press, published in Staatsblad No 249 of 4 June 1987, see Case 353/89, Commission v. Netherlands, (1991) ECR 4089; Case 288/89, Stichting Collectieve Antennevoorziening Gouda et al. v. Commissariaat voor de Media, (1991) ECR 4007; Case 148/91, Vereniging Veronica Omroep Organisatie v. Commissariaat voor de Media, (1993) ECR 513. Case 148/91, Vereniging Veronica Omroep Organisatie v. Commissariaat voor de Media, (1993) ECR 513 (para 9). Case 148/91, Vereniging Veronica Omroep Organisatie v. Commissariaat voor de Media, (1993) ECR 513 (para 10). Case C-250/06, United Pan-Europe Communications Belgium SA, (judgment of 13 December 2007), paras 41–42. At issue were obligations imposed on TV service providers to broadcast, in the bilingual region of Brussels-Capital, television programmes transmitted by certain private broadcasters designated by the authorities of that State. The Court reiterates its position that ‘the national legislation at issue in the main proceedings pursues an aim in the general interest, since it seeks to preserve the pluralist nature of the range of television programmes available in the bilingual region of Brussels-Capital and thus forms part of a cultural policy the aim of which is to safeguard, in the audiovisual sector, the freedom of expression of the different social, cultural, religious, philosophical or linguistic components which exist in that region’ (para 42).

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correspond in part to certain requirements of the FCNM. In particular, in line with Article 20 of the International Covenant on Civil and Political Rights, which prescribes the prohibition of ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’, Article 6 (2) FCNM imposes the obligation on State Parties ‘to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural or religious identity.’ The Advisory Committee of the Framework Convention (ACFC) has insisted on several occasions on the necessity to ensure this protection in an effective way, in particular through the criminal law.76 In line with these requirements, Article 22b of Directive 89/552/EC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (directive ‘TV without borders’),77 as amended by Directive 97/36/EC of the European Parliament and the Council of 30 June 1997,78 imposes an obligation on the Member States to ensure that ‘broadcasts do not contain any incitement to hatred on grounds of race, sex, religion or nationality’ (Article 22). This, however, remains a very limited obligation, in comparison to what the FCNM requires, and to which the regulation of television broadcasting services at the level of the Union could provide for. In particular, there is no obligation, under Directive 89/552/EC, to ensure pluralism in the media, or to guarantee that members of minorities will have access to the media. Article 6(1) FCNM provides that State Parties ‘shall encourage a spirit of tolerance and intercultural dialogue’ and ‘take measures to promote mutual respect and understanding and co-operation among all persons living on their territory (…) in particular in the field of education, culture and the media.’79 The ACFC insists on the importance of the access of persons belonging to minorities to

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Opinion on Slovakia, 22 September 2000, ACFC/OP/I(2000)001, para 29; Opinion on the Czech republic, 6 April 2001, ACFC/OP/I(2002)002, para 40. See also ECRI General Policy Recommendation No. 1 on combating racism, xenophobia, anti-Semitism and intolerance, 4 October 1996, CRI (96) 43 rev. This recommendation encourages states to take measures to ensure that ‘racist and xenophobic acts are stringently punished through methods such as defining common offences but with a racist or xenophobic nature as specific offences’ and ‘enabling the racist or xenophobic motives of the offender to be specifically taken into account’. Moreover, it recommends that ‘criminal offences of a racist or xenophobic nature can be prosecuted ex officio’. OJ L 298, 27 November 1989, 23. OJ L 202, 30 July 1997, 60. See also Article 7 of the International Convention on the Elimination of All Forms of Racial Discrimination.

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the media as a means to promote intercultural understanding.80 Under the FCNM, the State Parties must ensure in the legal framework of sound radio and television broadcasting ‘that persons belonging to national minorities are granted the possibility of creating and using their own media’ (Article 9(3) ); and they shall adopt ‘measures in order to facilitate access to the media for persons belonging to national minorities’ (Article 9(4) ).81 In its Recommendation 1589 (2003) on the freedom of expression in the media, the Parliamentary Assembly of the Council of Europe urges the states ‘to abolish restrictions on the establishment and functioning of private media broadcasting in minority languages’.82 According to the ACFC, an overall exclusion of the use of languages of minorities in the nation-wide public service and private broadcasting sectors is not compatible with Article 9 FCNM.83 Restrictions to the freedom to broadcast in a minority language, such as the obligation to use the official language for at least 50% of the broadcasting time84 or the obligation to translate all broadcasting in the minority language into the official language,85 could also be problematic with regard to Article 9 FCNM. Moreover, the ACFC is of the opinion that States should take positive measures to ensure the access of minorities to the media, in particular by allocating sufficient time for minority language broadcasting on public service TV in relation to the needs and the size of the population concerned.86

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See Opinion on Cyprus, 6 April 2001, ACFC/OP/I(2002)004, para 36. Reference should be made for instance, to illustrate the range of options which exist in this regard, to the Netherlands. In 1999, the Dutch Government submitted a White Paper to the Parliament with many action points to enhance diversity in the media, to promote access of the media to cultural minorities, and to stimulate balanced reporting on the multi-cultural society (Kamerstukken II, 1998–1999, 26597, No. 1). See also the HCNM’s Oslo Recommendations Regarding the Linguistic Rights of National Minorities (1998), para 8 and Guidelines on the Use of Minority Languages in the Broadcast Media (2003). Recommendation 1589 (2003) on the freedom of expression in the media, para. 17, vi. See also Recommendation 1623 (2003) on the rights of national minorities, paras 7 and 11. Opinion on Ukraine, 1 March 2002, ACFC/OP/I(2002)010, para. 43; Opinion on Azerbaijan, 22 May 2003, ACFC/OP/I(2004)001, para 50. Opinion on Serbia and Montenegro, 27 November 2003, ACFC/OP/I(2004)002, para 69. Opinion on Estonia, 14 September 2001, ACFC/OP/I(2002)005, para 38. Ibid., para 37. See also the Oslo Recommendations of the OSCE High Commissioner on National Minorities Regarding the Linguistic Rights of National Minorities (1998), para 9 and Guidelines on the Use of Minority Languages in the Broadcast Media (2003). Moreover, the ACFC considers it useful that minority language broadcasting on public TV is subtitled in the official language, in order to stimulate knowledge of the minority language by the whole of the population. See Opinion on Sweden, 20 February 2003, ACFC/OP/I(2003)006, para 45.

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In its Thematic Comment (n°3) on the rights of minorities in the European Union, the EU Network of independent experts on fundamental rights recommended that, in the revision of Council Directive 89/552/EEC, special consideration be given to the added value which a specification at EU level of the requirements concerning the representation of minorities in the media would present, in particular in order to clarify the legal framework applicable to such initiatives adopted by the Member States. Citing the Mediawet cases referred to above, it noted: ‘The Member States should not be chilled from adopting certain regulations in this regard which could be seen as violating the freedom to provide audio-visual services or the freedom of expression of audio-visual service providers. At a minimum, an initiative could be taken in order to codify in European legislation the existing case-law of the European Court of Justice on this question’. Recalling that the Preamble and Article 7 of Council Directive 89/552/EC allow the Member States, ‘(…) in order to allow for an active policy in favour of a specific language, (…) to lay down more detailed or stricter rules in particular on the basis of language criteria, as long as these rules are in conformity with [EU] law’,87 the Network also recommended that Directive 89/552/EEC be amended in order to ensure that television broadcasting within the Union will fully respect the rights of linguistic minorities by imposing corresponding positive obligations on the Member States. Directive 2007/65 of 11 December 2007 amending Directive 89/55288 has now inserted into the (renamed) Audiovisual Media Services Directive a provision (Art 3e) according to which the Member States shall ensure that audiovisual commercial communication shall not ‘include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation’. By its reference to all the grounds of prohibited discrimination mentioned in Article 19 TFEU, this formulation goes further than the former Article 22 a of Directive 89/552/EEC, inserted by Directive 97/36/ EC, according to which ‘Member States shall ensure that broadcasts do not contain any incitement to hatred on grounds of race, sex, religion or nationality’. Yet, the changes made do not go as far as suggested by the EU Network of independent experts on fundamental rights. And they certainly cannot be said to take adequately into account the provisions of the FCNM which relate to the audio-visual media. Although Article 11(2) of the EU Charter of Fundamental Rights guarantees the respect for the freedom and pluralism of the media, it does not impose on the institutions of the Union any positive

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See the preamble and Article 7 of Directive 89/552/EEC. OJ L 332 of 18.12.2007, p. 27.

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obligation to take action in this regard and it cannot reasonably be interpreted as embodying the much more far-reaching and specific requirements of the FCNM with regard to the access to the media of persons belonging to national minorities. What we have seen in the promotion of regional and minority languages are the limits of what Bruno de Witte has called the integration of minority rights in the EU through the ‘backdoor’ of cultural, linguistic diversity and educational policies.89 What we see in the field of the audio-visual media exemplifies that, even where the Union has been attributed legislative competences which it could rely upon in order to promote the rights of minorities, it is hesitant to do so, perhaps for subsidiarity reasons or because of an absence of consensus between the Member States as to what should be provided in this regard; or simply, because the Union does not see itself as a human rights organisation, whose role it is to contribute to the protection and promotion of human rights in the EU27 – and it is indeed a real question, to which the conclusion returns, whether the Union should play a more active role in the protection and the promotion of the rights of minorities.

3. The obligation not to violate the rights of the FNCM in the field of application of European Union Law Actively protecting and promoting minority rights by the exercise of the powers attributed to the Union by its Member States is one, certainly important, dimension of the policy the Union might develop in this field. Another dimension however, which the former dimension in a way presupposes, consists of the development of tools which should ensure that minority rights are not violated by the development of Union laws or policies. The preceding section has provided a few examples of the limited, but nevertheless significant, competences attributed to the EU to protect and promote minority rights in the Union (what may be called the positive dimension of an EU minority rights policy). Apart from those competences however, both the institutions of the Union – in the exercise of their competences – and the Member States – when they act in the field of application of Union law, in particular in order to implement EU legislation – are obligated to respect both the general principle of equal treatment and certain specific minority rights: this may be called the negative dimension of the EU minority rights policy, aimed at not violating those rights rather than at affirmatively contributing to their full realisation.

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Bruno de Witte, ‘The constitutional resources for an EU minority policy’, cited above no. 2.

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It is this ‘negative’ side of the Union policy in the field of minority rights which this section briefly addresses. Its components are recalled (3.1.). Certain of its limitations are then described (3.2.). 3.1. The components of the negative dimension of the EU approach to minority rights Until the entry into force of the Treaty of Lisbon, the obligation not to violate minority rights lacked any explicit constitutional foundation, none at least which refers explicitly to the rights of minorities. It had its source in the case law of the Court of Justice of the European Communities (European Court of Justice) which, since the late 1970s, considers that fundamental rights are part of the general principles of law which it is the duty of the Court to ensure respect for. Fundamental rights recognised as general principles of law are binding both on the institutions of the Union and on the Member States acting in the scope of application of Union law.90 The Court sees equality of treatment, in particular, as a general principle of law which it is its task to ensure compliance with.91 The principle of equal treatment requires that comparable situations are not treated differently and that different situations are not treated in the same way unless such treatment is objectively justified by the pursuit of a legitimate aim and provided that it is appropriate and necessary in order to achieve that aim.92 In that sense, the directives adopted on the basis of Article 13 EC may be said to embody a general principle of equal treatment which preexisted their adoption, and which the Court of Justice imposed in the field of application of European Union law, i.e. which is binding both on the institutions of the Union and on the Member States insofar as they act in the field of application of Union law.93 The Court also ensures the protection of other

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See, e.g. Case 36/75, Rutili, (1975) ECR 1219; Case 201/85, Klensch, (1986) ECR 3477; Case 5/88, Wachauf / Bundesamt für Ernährung und Forstwirtschaft, (1989) ECR 2609; Case C-260/89, ERT, (1991) ECR I-2925. Case C-55/00, Gottardo (2002) ECR I-413, para 34; Case C-442/00, Caballero (2002) ECR I-11915, paras. 30 to 32; Joined Cases 201/85 and 202/85, Klensch (1986) ECR 3477, paras 9 to 10; Case C-351/92, Graff (1994) ECR I-3361, paragraphs 15 to 17; and Case C-15/95, EARL de Kerlast (1997) ECR I-1961, paras 35 to 40. Case C-56/94, SCAC (1995) ECR I-1769, para 27; Case C-15/95, EARL de Kerlast (1997) ECR I-1961, para 35; Case C-354/95, National Farmers’ Union and Others (1997) ECR I-4559, para. 61; and Case C-292/97, Karlsson (2000) ECR I-2737, para. 39. See Case C-144/04, Mangold v Helm, [2005] ECR I-9981 (judgment of 22 November 2005 delivered upon a request for a preliminary ruling from the Arbeitsgericht München (Germany) ), at paras 74–75 (noting that ‘Directive 2000/78 does not itself lay down the principle of equal treatment in the field of employment and occupation (…) the source of the

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fundamental rights, derived from the constitutional traditions of the Member States and from the international instruments for the protection of human rights to which the Member States are parties or in which they have cooperated. Freedom of religion forms part of this catalogue of rights: in Case 130/75, the Court of Justice took the view that the institutions – in this case the Council – could be obliged, if informed of the difficulty in good time, to take reasonable steps to avoid fixing for a test designed as part of a recruitment procedure a date which would make it impossible for a person of a particular religious persuasion to undergo the test: in effect, this is an obligation to accommodate all religious religious faiths in the adoption of certain general measures.94 The European Court of Justice also ensures that other fundamental rights are complied with in the sphere of European Union law, such as freedom of expression, freedom of association, or the right to respect for private life, all of which may contribute to the rights of minorities. As a result of a partial constitutionalisation of this case law, the EU institutions and the Member States implementing Union law are bound to respect the principles of human dignity, freedom, democracy, quality, the rule of law and respect for human rights, including the rights of persons belonging to minorities, on which the Union is founded (Article 2 of the EU Treaty). Although an explict reference to the “rights of persons belonging to minorities” is new, the European Commission considered, even before the Treaty of Lisbon, that Art. 6(1) EU (where the “values” of the Union were listed) included respect for the rights of minorities.95 This position found support in the EU Charter of Fundamental Rights96, which prohibits any discrimination based on, inter alia, membership of a national minority (Article 21), and includes a number of rights which – as well exemplified by the case law of the European

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actual principle underlying the prohibition of those forms of discrimination being found (…) in various international instruments and in the constitutional traditions common to the Member States’). This case concerned an instance of age-based discrimination; however, the very same reasoning could apply to forms of discrimination based on race, ethnicity, or religion or belief, all of which are prohibited under the Racial Equality Directive or the Employment Equality Directive but also under the general principle of equal treatment. Case 130/75, Vivien Prais v. Council, [1976] ECR 1589 (para. 19). See, e.g. footnote 3 of the Commission’s Regular Reports on the Accession States from October 9, 2002 (available online at http://europa.eu.int/comm/enlargement/report2002/ index.htm#report 2002); or the Commission’s reply to the written question E-2538/01, in OJ 147 E, 20 June 2002, 27–28. For a detailed exposition of this position, see Frank Hoffmeister, ‘Monitoring Minority Rights in the Enlarged European Union’, in: Gabriel N. Toggenburg (ed.), Minority protection and the enlarged European Union. The Way Forward, Budapest: LGI Books 2004. OJ C 364 of 18.12.2000, p. 1.

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Court of Human Rights97 – may serve to protect certain dimensions of the rights of persons belonging to minorities. The pre-screening of European Union legislation in order to verify that it complies with the Charter of Fundamental Rights has been enhanced in recent years. In April 2005, the Commission adopted a Communication98 by which it seeks to improve the compliance of its legislative proposals with the requirements of the Charter. On 15 June 2005, it adopted a new set of guidelines for the preparation of the extended impact assessments accompanying the legislative proposals of its annual work programme.99 Although the new guidelines are still based, as the former impact assessments,100 on a division between economic, social and environmental impacts, the revised set of guidelines pays much greater attention to the potential impact of different policy options on the rights, freedoms and principles listed in the EU Charter of Fundamental Rights. In particuler, under this new set of guidelines, the lead department of the European Commission in charge of the initial formulation of the legislative proposal should identify whether the option it has chosen may significantly affect ‘ethnic, linguistic and religious minorities’ (subgroup ‘Social inclusion and protection of particular groups’ under the potential social impacts); and it has to identify whether the option chosen might ‘entail any different treatment of groups or individuals directly on grounds of e.g. gender, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’. The main function of fundamental rights included among the general principles of law which the European Court of Justice ensures respect for is to impose a limit both on the institutions of the European Union and on the national authorities implementing Union law: they may not adopt, under

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See, inter alia, P. Thornberry, ‘Treatment of Minority and Indigenous Issues in the European Convention on Human Rights’, in: G. Alfredsson and M. Stavpoulou (eds.), Justice Pending: Indigenous Peoples and Other Good Causes, The Hague: Kluwer 2004; G. Pentassuglia, ‘Minority Issues as a Challenge in the European Court of Human Rights: A Comparison with the Case Law of the United Nations Human Rights Committee’, German YB Int’l Law, 2004, 401–451; Julie Ringelheim, Diversité culturelle et droits de l’homme. Le droit des minorités dans la jurisprudence de la Cour européenne des droits de l’homme, Bruxelles, Bruylant, 2006. Communication from the Commission, Compliance with the Charter of Fundamental Rights in Commission legislative proposals. Methodology for systematic and rigorous monitoring, COM(2005)172 final of 27.4.2005. SEC(2005)791, 15.6.2005. See Communication of 5 June 2005 on Impact Assessment, COM(2002)276.

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Union law, any act, or take any measure, which would result in a violation of these rights. The pre-screening of the legislative proposals of the European Commission, simply constitutes one means, among others perhaps, to ensure that this requirement is complied with. However, the fundamental rights recognised in the legal order of the European Union also may be invoked by the EU Member States to justify certain restrictions to fundamental freedoms of the EC Treaty or, for instance, to the rules on competition law, where they have adopted measures the purpose of which is to ensure a protection of the fundamental rights thus recognised.101 Here, fundamental rights are not limits imposed on the Member States acting under Union law; on the contrary, as we have seen in the Mediawet cases of 1991–1993 referred to above,102 they serve to protect the freedom of the Member States to maintain or develop certain policies, or to adopt certain measures, in the name of safeguarding fundamental rights. The general purpose of recognising such rights as part of the EU legal order remains however to ensure that the development of EU law will not result in a lowering of the protection of fundamental rights protected under the jurisdiction of the Member States, to the extent at least that such rights are collectively recognised as part of their common constitutional traditions or are identified in international law instruments (such as, in particular, the European Convention on Human Rights) on which a sufficient degree of consensus exists. Thus, while these two functions fulfilled by the recognition of fundamental rights in the EU legal order are very different, they may be said to constitute two different means to achieve one single end. The protection of fundamental rights, including minority rights, may thus constitute a legitimate aim for an EU Member State to pursue. However, in order to be acceptable under Union law, any special measure adopted by an EU Member State in order to take into account the specific needs of a minority must respect certain conditions. First, when such special measures are adopted in favour of the nationals of a Member State, the advantage they afford must be extended to the nationals of other Member States: this follows from the prohibition of discrimination on grounds of nationality between Union citizens, as guaranteed now by Article 18 TFEU. This rule has been confirmed by the European Court of Justice, for instance, in the case of Bickel and Franz,

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See, e.g. Case C-368/95, Familiapress, (1997) ECR I-3689 (Recital 24) (the preservation of pluralism in the Austrian media, which serves the objective of freedom of expression, may legitimately justify a restriction to the free movement of goods under the EC Treaty); Case C-112/00, Schmidberger, (2003) ECR I-5659 (Recital 81) (the need to respect freedom of assembly may justify an interference with the free movement of goods recognised in the EC Treaty). Supra, text corresponding to nn. 72–74.

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on which the Court delivered a judgment on 24 November 1998. In this case, an Austrian lorry driver driving through Italy and a German national and resident visiting Italy were prosecuted for minor offences. Although they requested that the proceedings be conducted in German, they were not allowed to rely on rules for the protection of the German-speaking community of the Province of Bolzano. The Court concluded that this was in violation of Article 18 TFEU (then Article 6 of the EC Treaty). In the view of the Court, this provision ‘precludes national rules which, in respect of a particular language other than the principal language of the Member State concerned, confer on citizens whose language is that particular language and who are resident in a defined area the right to require that criminal proceedings be conducted in that language, without conferring the same right on nationals of other Member States travelling or staying in that area, whose language is the same’.103 Moreover, measures adopted by the Member States which seek to ensure a protection of cultural, religious and linguistic diversity – an objective which Article 22 of the EU Charter of Fundamental Rights confirms to be legitimate – or which, more generally, seek to protect minority rights, should not result in a disproportionate interference with the fundamental freedoms recognised under the Community, such as, for instance, the free provision of services,104 the free movement of goods,105 or the freedom for workers to seek employment in another Member State. The case of Groener106 already referred to above provides an example of this latter situation. In this case, the European Court of Justice was asked to interpret Article 3(1) of Regulation No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community.107 This article provides that national provisions or administrative practices of a Member State are not to apply where, ‘though applicable irrespective of nationality, their exclusive or principal aim or effect is to keep nationals of other Member States away from the employment offered’. But it adds in its last subparagraph that that provision is not to ‘apply to conditions relating to linguistic knowledge required by reason of the nature

103

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105 106 107

Case C-274/96, Bickel and Franz (1998) ECR I-7637, paragraph 31. See also Case 137/84, Mutsch (1985) ECR 2681. See Case 353/89, Commission v. Netherlands, (1991) ECR 4089 (para 30); Case 288/89, Stichting Collectieve Antennevoorziening Gouda et al. v. Commissariaat voor de Media, (1991) ECR 4007 (para 23); Case 148/91, Vereniging Veronica Omroep Organisatie v. Commissariaat voor de Media, (1993) ECR 513 (paras 9 and 10). Case C-368/95, Familiapress, (1997) ECR I-3689 (para 24). Case 379/87, Groener, (1989) ECR 3967 (judgment of 28 November 1989). OJ, English Special Edition, 1968(II), p. 475.

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of the post to be filled’. An interpretation of this clause was requested in the context of national rules making appointment to a permanent full-time post as a lecturer in public vocational education institutions conditional upon proof of an adequate knowledge of the Irish language, after Anita Groener, a Dutch national, was denied appointment to a permanent full-time post as an art teacher after she had failed a test intended to assess her knowledge of the Irish language, the first national language in Ireland. Finding that the policy followed by Irish governments seeks to maintain but also to promote the use of Irish as a means of expressing national identity and culture, the Court noted that although the EEC Treaty ‘does not prohibit the adoption of a policy for the protection and promotion of a language of a Member State which is both the national language and the first official language’ (para 19), insofar as such a policy encroaches upon a fundamental freedom such as that of the free movement of workers, ‘the requirements deriving from measures intended to implement such a policy must not in any circumstances be disproportionate in relation to the aim pursued and the manner in which they are applied must not bring about discrimination against nationals of other Member States’ (para 19). The Court agreed with the Irish government that in view of the policy it pursued for the promotion of the Irish language, the requirement imposed on teachers ‘to have an adequate knowledge of such a language must, provided that the level of knowledge required is not disproportionate in relation to the objective pursued, be regarded as a condition corresponding to the knowledge required by reason of the nature of the post to be filled within the meaning of the last subparagraph of Article 3(1) of Regulation No 1612/68’ (para 21). The Court thus recognised that a Member State policy designed to maintain and promote the national language should in principle be recognised as pursuing a legitimate objective in the Union, adding however that an EU Member State could not adopt measures protecting its employment market under the pretext of imposing linguistic requirements, as would be the case if such requirements were unrelated to the post offered or if, for instance, they were to be proven to be complied with only by means of a document delivered in the Member State in question or a part thereof.108 While fundamental rights are to be complied with in the legal order of the European Union, this constitutes only a limitation imposed on the institutions 108

See the case of Groener, cited above, para 23; or Case C-281/98, Roman Angonese v. Cassa di Risparmio di Bolzano, (2000) ECR 4139, at paras. 43–44, which concerned the situation of an Italian national who applied to take part in a competition for a post with a private banking undertaking in Bolzano, but whose application was rejected because, although perfectly bilingual in Italian and German, he could not obtain a certificate of bilingualism issued by the public authorities of the province of Bolzano.

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and on the Member States: it does not lead to imposing a positive obligation to adopt measures in order to protect or to promote those fundamental rights. The EU has not been attributed a general competence to legislate in the field of fundamental rights; unless a specific legal basis may be identified in the treaties, it has no power to intervene in situations where the Member States would be violating fundamental rights outside the scope of application of Union law. The only exception to this rule resides in the possibility of the Council of the Union relying on Article 7 EU in order either to impose sanctions on a Member State persistently committing a serious breach of the values on which the Union is founded, or to address recommendations to the concerned Member State where there is a clear risk of a serious breach by that State of those values.109 However, the political sanctioning mechanism established in Article 7 EU is anything but a provision which may be relied upon on a routine basis: on the contrary, it is meant to function as a safeguard clause in only the most extreme circumstances, where the situation in a Member State would have become so deplorable – or would risk becoming so – that it threatens even the possibility of cooperating with that State in the framework of the European Union. It is for the time being highly implausible that this understanding of this provision will change, i.e. that Article 7 EU will form the basis for a systematic monitoring, by the Council, of the situation of human rights in the EU Member States, and in particular, of the treatment in those States of minorities.110 Leaving aside, then, any potential future development of the political sanctioning mechanism of Article 7 EU, we may conclude that both the general principle of equal treatment and certain specific minority rights are part of the general principles of law which the European Court of Justice ensures the respect of by the institutions and the Member States in the scope of application of Union law and these principles are now embodied in Article 2 of the EU Treaty and codified in the EU Charter of Fundamental Rights. At the same time, a number of limitations may be noted. 109 110

Article 7 EU. See, in particular, the resolution adopted by the European Parliament: Respect for and promotion of the Values on which the Union is based, EP doc. P5_TA(2004)0309 (stating that “Union intervention pursuant to Article 7 of the EU Treaty must (…) be confined to instances of clear risks and persistent breaches and may not be invoked in support of any right to, or policy of, permanent monitoring of the Member States by the Union”). The resolution is adopted in response to the Communication of the Commission to the Parliament and the Council, ‘Article 7 of the TEU: Respect for and promotion of the Values on which the Union is based’, COM (2003) 606 final, of 15.10.2003, where the Commission advocated a more systematic use of Article 7 EU in order to prevent the risk of serious human rights violations being committed in the Member States.

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3.2. The limitations of the negative dimension of the EU approach to minority rights First, it is worth emphasising that neither the Council of Europe Framework Convention on the Protection of National Minorities as such, nor the full set of rights listed in the FCNM, have hitherto been considered to be part of the fundamental rights acquis of Union law. The Framework Convention has never been invoked by the European Court of Justice – which, in contrast, has recognised a ‘special significance’ of the European Convention on Human Rights, and has also occasionally relied on the International Covenant on Civil and Political Rights. On the contrary, since four EU Member States (Belgium, France, Greece and Luxembourg) still have not ratified the FCNM – which France has not even signed – and since the FCNM is considered to set out only ‘general principles and goals’, illustrating perhaps an emerging consensus within the Council of Europe in favour of the recognition of ‘the special needs of minorities and an obligation to protect their security, identity and lifestyle’ but betraying at the same time a lack of agreement on concrete means of implementation,111 it is highly implausible, in the view of this author, that this instrument will in the future serve as a reference point in the case law of the European Court of Justice, or that it will influence the interpretation of the EU Charter of Fundamental Rights.112 Although the EU Network of Independent Experts on Fundamental Rights has insisted on many occasions on the need to interpret the Charter in accordance with the broader acquis of international and European human rights law, it is by no means certain that this intrepretative practice will be followed by the EU Fundamental Rights Agency, or by the other actors involved in the interpretation of the Charter. Second, neither the inclusion of the rights of minorities in Article 2 EU following the Lisbon Treaty, nor the explicit recognition in the EU Charter of Fundamental Rights of the right not to be discriminated against on the basis of one’s membership of a national minority (Article 21) or the inclusion of a concern for the impact on minorities in the pre-screening of EU legislation in the context of extended impact assessments, will be fully effective until three conditions are fulfilled. For these mechanisms to work to their full potential, we require: 1° a clear understanding of what the concept of “minorities” refers

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Eur. Ct. HR, Chapman v. the United Kingdom, Appl. N° 27238/95, judgment of 18 January 2001, para. 93–94. See however, for a more optimistic appreciation, Erik Friburg and Rainer Hoffman, ‘The Enlarged EU and the Council of Europe: Transfer of Standards and the Quest for Future Cooperation’, in: Gabriel N. Toggenburg (ed.), Minority protection and the enlarged European Union. The Way Forward, Budapest: LGI Books 2004.

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to in the context of EU law; 2° a shared commitment of the EU Member States to improve their monitoring of the situation of minorities under their jurisdiction, in areas such as housing, employment or education; and 3° a working relationship to be established between the competent institutions of the European Union and the Secretariat of the Framework Convention for the Protection of National Minorities. At the moment however, none of these conditions are satisfied. 1° The first condition is perhaps at the same time the least important and the easiest to fulfil. None of the instruments cited above, which ensure that the rights of minorities will be taken into account in the law- and policy-making of the EU and in the evaluation by the EU institutions of the compliance by the Member States with the founding values of the Union, offer a definition of ‘national minorities’ or ‘minorities’ in Union law. Indeed, in 2005 the European Parliament complained that ‘there is no standard for minority rights in Community policy nor is there a Community understanding of who can be considered a member of a minority’; and it took the view that this lack of a commonly agreed definition could be compensated for by borrowing the definition laid down in Recommendation 1201 (1993) adopted by the Parliamentary Assembly of the Council of Europe.113 In its Thematic Comment on the rights of minorities in the European Union adopted at the same time, the EU Network of Independent Experts on Fundamental Rights noted that the different EU Member States had in certain respects quite dissimilar understandings of the notion of ‘minority’ or ‘national minority’, and that, as a result of this situation, any reliance in an instrument of the European Union on the notion of ‘minorities’ (as in Article 2 EU) or of ‘national minority’ (as in Article 21 of the Charter of Fundamental Rights), as well as the reliance in future accession processes on the notion of rights of minorities, may be subject to diverse interpretations in the different Member States. The Network called upon the Union, therefore, to clarify that where the notion of ‘minorities’ was referred to in European Union law, it should be understood as referring to the above-mentioned definition proposed in 1993 by the Parliamentary Assembly of the Council of Europe. Whether this should be seen as a priority may be doubtful, however. After all, the monitoring bodies of the Council of Europe Framework Convention for the Protection of National Minorities have managed to breathe life into the 113

Resolution on the protection of minorities and anti-discrimination policies in an enlarged Europe, adopted on 8 June 2005 and based on the report A6-0140/2005 of 10 May 2005 (rapporteur Claude Moraes), para 7 (citing Recommendation 1201 (1993) of the Parliamentary Assembly of the Council of Europe on an additional protocol on the rights of national minorities to the European Convention on Human Rights).

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Convention without having to rely on a clear-cut definition of ‘national minorities’ and the absence of such definition in the FCNM may even appear, in retrospect, to present certain advantages, apart from that of encouraging the Member States of the Council of Europe to ratify the instrument while retaining a certain margin of appreciation on the minorities protected under their jurisdiction: it has allowed the Advisory Committee to progressively adapt its understanding of which groups should be protected as ‘national minorities’ under the Convention to a diverse set of changing circumstances, and to develop its ‘article-by-article’ approach which avoids the pitfalls of an overambitious attempt to provide an across-the-board definition, valid for all situations and for all provisions of the Convention. Moreover, even in the absence of a unanimously agreed upon definition of ‘national minorities’ or ‘minorities’ in European Union law, there exists among the EU Member States a sufficiently wide consensus on the meaning of the notion to ensure that it is workable in practice. 2° A second difficulty may be more serious. As already mentioned above, the EU Member States have taken strikingly diverging approaches towards the question of the recognition of minorities in general, and towards the monitoring of the situation of minorities under their jurisdiction in particular. It has been recalled above that, under the Racial Equality Directive and the Employment Equality Directive, while the Member States are obliged to prohibit discrimination, they are not under an obligation to allow for a presumption of discrimination to be established on the basis of statistical data. Nor are the EU Member States under any obligation, in EU law, to collect data which would allow for such statistics to be invoked in favour of a claim of discrimination. The lack of a common approach to this question has raised certain concerns. In its resolution on Non-discrimination and equal opportunities for all A framework strategy adopted on 8 May 2006,114 noting that ‘the detection of indirect forms of discrimination (…) must be based upon reliable statistics relating in particular to certain groups with special characteristics; whereas any unavailability of statistics will in effect deny potential victims of indirect discrimination access to a tool which is essential if their rights are to be recognised’ (Preamble, R.), the European Parliament took the view that ‘notwithstanding cultural, historical or constitutional considerations, data collection on the situation of minorities and disadvantaged groups is critical and that policy and legislation to combat discrimination must be based on accurate data’ (para 14). It therefore called for a clarification of the requirements of data protection legislation on this issue. It also called upon the Member States

114

2005/2191(INI), EP doc. A6-0189/2006 (rapp. T. Zdanoka).

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to ‘develop their statistics tools with a view to ensuring that data relating to employment, housing, education and income are available for each of the categories of individual which are likely to suffer discrimination based on one of the criteria listed in Article 13 of the EC Treaty’ (para 20). This is not a new theme in the European Parliament’s approach to this issue. One of the recommendations contained in the above mentioned resolution adopted on 14 July 2003 by the European Parliament, following the Ebner report on European regional and lesser-used languages - the languages of minorities in the EU - in the context of enlargement and cultural diversity, was that the Member States should ‘compile, as a basis for further measures, reliable data on ethnic, linguistic and religious minority groups, including immigrants and refugees, on their economic and social isolation/exclusion, and on the legal and practical status of regional and minority languages, and send such data to the European Monitoring Centre on Racism and Xenophobia in Vienna’ (para 29). In the resolution it adopted in July 2005 on the basis of a report by Claude Moraes MEP,115 the European Parliament calls for ‘data to be collected on direct and indirect discrimination (i.e. the percentage of people belonging to national minorities among those living at risk of poverty and among the employed and unemployed, their level of education, etc.) so as to ensure proper feedback on the effectiveness of Member State anti-discrimination and minority-protection policies’ (para 54). There are two distinct rationales for insisting on the improvement of data collection relating to the situation of minorities – especially ethnic minorities – in the fields of education, employment or housing. First, this may improve the effectiveness of anti-discrimination legislation, by helping both the public authorities to identify instances of discrimination and the victims of discrimination to bring forward data which might lead such discrimination to be presumed. This objective may be achieved by the development of certain statistical tools by each Member State, according to its own priorities and specificities, and of course, taking into account the situation of minorities on its territory. Second, an improved system of data collection on the situation of minorities in the EU Member States may serve the preparation of European laws and policies whose impact on the situation of minorities is more carefully considered, which are directed more precisely to the identified needs of minorities, and which may be revised in the light of their effectiveness – or lack of effectiveness – as highlighted by the evolution of certain data. For this purpose, it has been suggested that it may not be enough for each Member

115

European Parliament resolution on the protection of minorities and anti-discrimination policies in an enlarged Europe (2005/2008(INI) ) (rapp. Cl. Moraes), cited above, n. 20.

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State to define a set of indicators related to the situation of minorities on its territory: a unified approach, allowing for inter-State comparisons and European-level impact assessments, might require one single set of indicators, and agreement on one single methodology, across all the Member States. While such a unified approach may appear desirable in theory, however, it is probably overambitious: the problems differ so widely from State to State that it may prove impossible to arrive at one single methodology in order to describe adequately such diverse situations. While such an attempt could lead to a superficial consensus on a basic set of indicators, this risks going hand in hand with such diverging methodologies, for instance in the collection of data or in the interpretation of common guidelines, that the agreement arrived at would be purely illusory – a fig leaf barely concealing a continued disagreement on principles. Finally, it may be asked whether it is even necessary to aim at defining such a common set of indicators: after all, in order to identify the potentially discriminatory impact on national minorities of certain European laws or policies, as required under Article 21 of the Charter and as should be encouraged by the revised methodology for impact assessments, it might be sufficient to identify whether, in any of the Member States, such discrimination may occur, using whichever tools have been considered most relevant in the context of that particular State. We should not wait for there to be a consensus on which indicators, relating in particular to which ‘minorities’, we should adopt at the European level; a consensus on the need for each State to develop a set of indicators allowing more focused anti-discrimination public strategies, and to facilitate the task of the victims of discrimination to collect statistics in order to build their case, would already be a significant step forward. 3° A third difficulty may be the lack of any formal link between the institutions of the European Union and, within the Council of Europe, the Secretariat of the Framework Convention for the Protection of National Minorities, in order to ensure consistency between the approaches of the two European organisations. In its 2003 resolution on European regional and lesser-used languages - the languages of minorities in the EU - in the context of enlargement and cultural diversity following the Ebner report, the European Parliament took the view that the aim of a European policy on regional and lesser-used languages should be to ‘reinforce the European dimension with a view to promoting and protecting regional and minority languages and cultures’. It stressed that: this aim cannot be effectively pursued without proper coordination with the machinery existing within the Council of Europe, avoiding overlapping or encroachment in terms of responsibilities and/or operations. In particular, because monitoring is carried out under the European Charter for Regional or

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Minority Languages, the key Europe-wide legal frame of reference applying in this sphere, and above all through the work of the independent committee responsible for supervising implementation of the Charter as well as the twoyearly reports submitted by the Secretary-General of the Council of Europe, it is possible to identify problem areas, often horizontal by nature to the extent that several countries are affected, in which action needs to be taken as a matter of priority. In their activities, therefore, the agency and the Commission should take account of the findings of this monitoring when determining aims, financial guidelines, and priorities so as to enable the right measures to be taken at the right time as regards the problem areas (similar considerations apply to the monitoring carried out under the Framework Convention for the Protection of National Minorities, insofar as it also relates to linguistic profiles).

More concretely on this point, the Parliament recommended that the Commission should ensure that it is regularly and officially informed, respectively by the secretariat of the European Charter on Regional or Minority Languages and that of the FCNM, on the implementation of the Charter and the FCNM by the EU Member States116 and that, ‘when determining aims, financial guidelines, and priorities, [the Commission should] take into account the findings of the monitoring carried out under both the Council of Europe’s European Charter for Regional or Minority Languages and, in so far as it also relates to linguistic profiles, its Framework Convention for the Protection of National Minorities; to that end, cooperation should be established on a regular basis between the appropriate Commission and Council of Europe departments’.117 However, the building of a formal relationship with the secretariats of the Charter for Regional or Minority Languages and of the Framework Convention for the Protection of National Minorities is not mentioned in the communication of the European Commission on ‘Promoting Language Learning and Linguistic Diversity: An Action Plan 2004–2006’, already referred to above,118 and is thus not part of the Action plan. While the progressive recognition of minority rights in the legal order of the European Union, as expressed most clearly in the reading of Article 2 EU including such rights and in an attempt to identify the impact on minorities of the legislative proposals of the Commission, is to be welcomed, this should not lead to new standards being developed in this field, which would somehow be competing with those already existing in the framework of the Council of Europe. It would also risk undermining the authority of the findings of the Advisory Committee established under the FCNM and, indeed, of the Council

116 117 118

See paras 6 and 7 of the operative part of the European Parliament’s resolution. Para 17. COM(2003)449 final, of 24.7.2003.

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of Europe Committee of Ministers as a supervisory body under the Framework Convention, if these country-specific opinions and resolutions were not taken into account in the use of the tools which the European Union itself has been developing. This, indeed, is also one of the core messages of the report prepared upon the request of the Heads of State or Government of the Member States of the Council of Europe convening at the Warsaw Summit of he Council of Europe on 16–17 May 2005 by Mr Juncker, Prime Minister of Luxembourg, on the future of the relationship between the European Union and the Council of Europe:119 ‘The EU bodies should recognise the Council of Europe as the Europe-wide reference source for human rights. The decisions and conclusions of its monitoring structures should be systematically cited as a reference’.

4. Conclusion The description above shows the different levels at which the contribution of the European Union to the protection and the promotion of minority rights in the EU Member States might be envisaged, thus countering the allegations about double standards pertaining to minority protection that have emerged in the wake of the accession monitoring process. It also illustrates the complexity of the question whether the European Union should play in the future a more active role in this field. There are two forms such a development could take. First, a more active role of the EU in this field could consist of monitoring the EU Member States in order to ensure that they comply with the values of the FCNM. While it is highly implausible that this will develop on the basis of Article 7 EU, considering the current understanding of the significance of this provision, other avenues, it has been sometimes suggested, may be explored. For instance, one of the recommendations contained in the above mentioned resolution adopted on 14 July 2003 by the European Parliament, following the Ebner report on European regional and lesser-used languages – the languages of

119

Council of Europe – European Union: A sole ambition for the European continent, Report by Jean-Claude Juncker, Prime Minister of the Grand Duchy of Luxembourg to the Heads of State or Government of the Member States of the Council of Europe, 11 April 2006. See more generally, on the question of the relationship between the two organisations in the protection and promotion of human rights, O. De Schutter, ‘The Two Europes of Human Rights. The Emerging Division of Tasks Between the Council of Europe and the European Union, in Promoting Human Rights in Europe’, Columbia Journal of European Law, vol. 14, No. 3, Summer 2008, 509–561.

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minorities in the EU – in the context of enlargement and cultural diversity, was that the EU should play a more active role in monitoring the impact of the State policies on the situation of national minorities. It proposed, in particular, that ‘a specific section of the European Parliament’s reports on human rights, or its own specific reports, deal with the protection of minorities, and that its Committee on Culture is regularly and officially informed by the secretariat of the European Charter on Regional or Minority Languages concerning the state of ratification, and developments in relation to the implementation of, the European Charter for Regional or Minority Languages in the Member States’ (paras 25–26); that the Member States should ‘compile, as a basis for further measures, reliable data on ethnic, linguistic and religious minority groups, including immigrants and refugees, on their economic and social isolation/exclusion, and on the legal and practical status of regional and minority languages, and send such data to the European Monitoring Centre on Racism and Xenophobia in Vienna’ (para 29); and that the Council ‘include in its annual report on the human rights situation an analysis of the development of human rights, including the rights of national minorities, in the individual Member States, taking into account also the outcome of Council of Europe activities in this field, to make it possible to formulate strategies to ensure that national and European policies in this area are more consistent’ (para 30). Such a development could be imagined, mutatis mutandis, as regards other rights than those of linguistic minorities and it could focus on the FCNM rather than on the European Charter on Regional or Minority Languages. This would present both an opportunity and a risk. The opportunity would be to use the powerful institutional machinery of the European Union in order to improve the implementation of the relevant Council of Europe instruments by the EU Member States, not only by encouraging the ratification of those instruments, but also by monitoring the commitments of the EU Member States in that framework and, especially, by ensuring that the findings of the monitoring bodies of the Council of Europe are followed up. The risk, at the same time, would be to substitute one form of monitoring within the Union (through the European Parliament, in particular, perhaps increasingly with the assistance of the EU Fundamental Rights Agency) for a form of monitoring which is already performed by the Council of Europe bodies. In the worst case scenario, this could lead to diverging interpretations of the requirements of the relevant standards, and to the authority of the monitoring by the Council of Europe being undermined. Precedents exist.120 In order to ensure that this

120

See for instance, on the risks entailed by the OSCE High Commissioner on National Minorities providing a reading of the FCNM which may not correspond to that of the Council of Europe monitoring bodies, which in turn may lead national authorities to

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does not happen, any monitoring performed by the institutions of the European Union on the EU Member States’ compliance with the values of the FCNM should be based explicitly on that standard – in other words, minority rights should not be reinvented by the EU – and any country-specific follow-up should be based, equally explicitly, on the findings of the monitoring bodies of the Council of Europe – particularly here, on the opinions of the Advisory Committee of the FCNM and on the resolutions of the Committee of Ministers of the Council of Europe. However, a second and quite distinct way to understand the more active role the European Union might play in protecting and promoting the rights of minorities in the EU, is to see the Union as developing new standards, by the adoption of new legislation implementing the values of the FCNM to the extent the Union has been attributed certain powers to do so. Who, in principle, would not be in favour of such a development? Especially considering that not all the EU Member States are parties to the FCNM, should we not welcome the idea of Union laws imposing obligations of a similar kind, thus filling what might be seen, otherwise, as a regrettable gap in the protection of the rights of minorities in Europe? The danger, however, is that by adopting such regulations or directives, the European Union may in fact be pre-empting a field which, then, the EU Member States will consider less important to cover by reference to the Council of Europe instruments or to their interpretation by the monitoring bodies these instruments have set up. Nowhere is this more clearly visible than in the anti-discrimination field. For instance, as explained above, the EU Member States are not currently in EU law under a positive duty to adopt special measures taking into account the specific needs of members of ethnic or cultural, religious or linguistic minorities: more precisely, only in the exceptional circumstance where not doing so would amount to a form of discrimination prohibited under the EU Treaty or under secundary legislation adopted on the basis of the Treaty – in particular, under the Racial Equality and Employment Equality Directives of 2000 – is such an obligation imposed on them under EU law. In the understanding of discrimination under the Racial Equality and Employment Equality Directives, the adoption or maintenance into force of measures which, although apparently neutral, put persons of a particular race or ethnic origin, or of a particular religion or belief, at a particular disadvantage, should be removed unless it can be demonstrated that such measures can be objectively justified as pursuing a legitimate aim by

practices akin to forum-shopping, Ch. McCrudden, ‘Consociationalism, Equality and Minorities in the Northern Ireland Bill of Rights Debate: The Role of the OSCE High Commissioner on National Minorities’, cited above at n. 60.

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means both appropriate and necessary.121 To that extent, and to that extent only, the EU Member States are obliged under EU Law to take into account the specific situation of ethnic or religious groups – among which groups who might qualify as national minorities – in order to ensure that this situation is taken into account. The approach of the directives, however, is not that of minority rights: it is not the purpose of the directives to ensure that the Member States ‘promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage’ (as according to the wording of Article 5(1) FCNM); the objective is defined, more restrictively, as to prohibit discrimination based, inter alia, on religion or on the traditions and cultural heritage of an ethnic group. In the resolution it adopted in June 2005 on the basis of a report by Claude Moraes MEP,122 the European Parliament ‘urges the Commission to establish a policy standard for the protection of national minorities, having due regard to Article 4(2) of the Framework Convention for the Protection of National Minorities (FCNM) (…)’ (para. 6). As we know however, this recommendation has hitherto remained a dead letter. But as a result of the Racial Equality and Employment Equality Directives having been adopted, certain EU Member States – whether or not they are State Parties to the FCNM – believe, or want to believe, that they comply fully with the internationally defined requirements of equality law, to the extent that they have adequately implemented the Equality Directives. The very fact that they have implemented the directives may make it difficult to convince them that they should go further. The example of anti-discrimination law, like the example of the regulation of audio-visual services referred to above, both lead to a more general point: while the fact that the European Union legislates in fields which concern minority rights should in principle be welcomed, as this may contribute significantly to an improved protection of these rights on the European continent, it should in doing so aim at achieving a standard of protection at least as strong as the standard defined by the instruments of the Council of Europe. The risk otherwise may be to undercut the efforts of the Council of Europe, by

121

122

See Article 2(2) of the Racial Equality Directive and of the Employment Equality Directive. As we have seen, the definition of indirect discrimination as provided by the directives do not amount to a prohibition of disparate impact discrimination: the disproportionate impact of certain neutral measures, as it might be highlighted by statistics, will not necessarily lead to shifting on the author of the contested measure the burden of justifying its adoption. European Parliament resolution on the protection of minorities and anti-discrimination policies in an enlarged Europe (2005/2008(INI) ) (rapp. Moraes), cited above.

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creating the impression that an alternative standard is available within the Union, from which the States belonging to both organisations simply may choose from. The EU Fundamental Rights Agency should in the future increase its role in providing the institutions, bodies, offices and agencies of the Union and its Member States when implementing Union law with assistance and expertise relating to fundamental rights in order to support them when they take measures or formulate courses of action within their respective spheres of competence to fully respect fundamental rights.123 For the reasons just stated, it will be crucial that the Agency base itself not only on the EU Charter of Fundamental Rights, but on the Charter as interpreted in the light of the broader acquis of international and European rights law, and especially, of the Council of Europe instruments which the EU Member States are parties to. And it will be essential also that the Agency, like the other EU institutions, bodies or agencies, establish systematic links with the secretariat of the FCNM within the Council of Europe, whenever they are confronted with questions related to minority rights. Only under these conditions can the European Union develop itself into an actor actively contributing to the protection and promotion of minority rights in the EU Member States, in a way which would conclusively settle outstanding complaints about double standards concerning minority protection.

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See above, text corresponding to nn. 23–25.

Are Some States and Minorities More Equal Than Others? Double Standards and the Work of the OSCE High Commissioner on National Minorities Natalie Sabanadze and Vincent de Graaf 1. Introduction The OSCE has been accused of double standards in recent years. These accusations have come mostly from a group of CIS Member States which have been accusing the OSCE of pursuing double standards in almost all of its activities. Their criticism ranges from the allegedly biased conduct of election observation missions and the selective opening and closure of field missions to perceived preaching of human rights and democratisation to countries East of Vienna while ignoring shortcomings West of Vienna. It also includes allegedly discriminatory arms control and inspection mechanisms and selectivity in applying fundamental international standards such as respect for the territorial integrity of States.1 These renewed East-West tensions have a sometimes paralysing effect on the organization, limiting its capacity to manage effectively and resolve crises, prevent conflict, and strengthen comprehensive security. As a result, a growing number of commentators have started talking about the crisis in the OSCE generated, inter alia, by the perception that the organisation, which is meant to be inclusive and cooperative and based on respect for the sovereign equality of States, has been allegedly applying double standards in its dealings with different participating States.2 The High Commissioner on National Minorities (HCNM) is one of the OSCE institutions which is generally considered to be a ‘success story’.3 1

2

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See Vincent de Graaf and Annelies Verstichel, ‘OSCE Crisis Management and OSCE-EU Relations’, in: Steven Blockmans (ed.), The European Union and Crisis Management, Policy and Legal Aspects, The Hague: T.M.C. Asser Press 2008, p. 255–276. A 2008 report, commissioned by the recent Finnish OSCE Chairmanship, captured the mood by stating that the OSCE faces ‘a crisis of both political substance and moral legitimacy’. See W. Zellner (ed.), Identifying the Cutting Edge: The Future Impact of the OSCE, Centre for OSCE Research at the University of Hamburg, Working Paper 17, January 2008, at http://www.corehamburg.de/CORE_english/publikationen.htm. See, for example, Rianne Letschert, The Impact of Minority Rights Mechanisms, Cambridge: Cambridge University Press 2005, p. 37–93 and p. 429–449.

Kristin Henrard, Double Standards Pertaining to Minority Protection, pp. 117–144. © 2010 Koninklijke Brill NV. Printed in the Netherlands.

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It has also largely been spared the stinging criticism which is raised against the other OSCE Institutions and field operations, not least against the OSCE’s Office for Democratic Institutions and Human Rights whose election observation and democratisation activities are a particular bone of contention. Nevertheless, the HCNM has not been immune to accusations of pursuing or condoning double standards. As with the OSCE as a whole, questions have been raised with regard to the HCNM’s engagement mainly in the States East of Vienna.4 The argument is raised that this engagement is selective and biased as Western European States are far from perfect when it comes to the protection of their own national minorities. As one of the leading experts in the field of minority protection has put it: ‘In short, while [Western States] were willing, at first, to insist that postcommunist States be monitored for their treatment of minorities, Western democracies had no wish to have their own treatment of minorities examined.’5

In addition, the OSCE in general and the HCNM in particular are criticised for not taking a more assertive and critical stance when it comes to the treatment of ethnic Russians living in Ukraine, the Baltic States and Central Asia. Others have accused the HCNM of advocating a differentiated application of minority rights to different groups to the extent of ‘rewarding’ those who opt for violent struggle and ignoring the plight of peaceful, law-abiding minorities.6 It has been questioned why the HCNM is not promoting extensive minority rights such as territorial autonomy for all minorities but only for some and only in exceptional circumstances.7 It is argued that this overcautious stance discourages groups from claiming the status of ‘national minority’ opting instead for that of ‘indigenous people’, along with its claims for self-rule and land rights.8 It is not inconsequential for the HCNM whether the work of the institution is perceived as fair and principled or as inconsistent and applying with double standards. The legitimacy of the institution and the trust that both States and minority groups place in it are essential for the success of the HCNM. 4

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Erik Friberg and Halida Nasic, ‘The OSCE High Commissioner on National Minorities’, in: Stefan Wolff and Marc Weller (eds.), Institutions for the Management of Ethnopolitical Conflict in Central and Eastern Europe, Strasbourg: Council of Europe Publishing 2008, p. 44. Will Kymlicka, ‘The Internationalization of Minority Rights’, International Journal of Constitutional Law, 6(1), 2008, p. 1–32, p. 23–24. Ibid., at p. 31. See, e.g., Will Kymlicka, ‘Rights to Culture, Autonomy and Participation: the Evolving Basis of International Norms of Minority Rights’, in: John McGarry and Michael Keatings (eds.), Nations, Minorities and European Integration, London: Routledge 2006, p. 35–63. Ibid. at p. 16–17.

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He has few carrots and virtually no sticks, as it can offer neither economic incentives nor political and military pressure to generate conformity with his recommendations. Rather, the HCNM is the type of international institution that can offer international legitimacy that most States seek and value especially if they are in the process of transition. If the HCNM’s own legitimacy is called into question, however, then the institution is greatly diminished and its effectiveness undermined. Furthermore, the key factors enabling the HCNM to build relations with various parties are trust and credibility – both contingent upon the perception that the HCNM is a fair and impartial actor, who does not take sides or pursues double standards. Once this trust and confidence is lost, the HCNM’s access to information from all possible sources becomes restricted and his ability to exercise his mandate is jeopardised. It should, nevertheless, be noted that not all accusations of double standards pursue the objective of a better and fairer world. Nor are such accusations well founded in deep empirical research. In the context of OSCE relations, the discourse of double standards has often been politically motivated and has done nothing to enhance the standards or to promote their universal application.9 Frequently, allegations that other participating States apply double standards only serve to justify a prima facie breach of the same standards by the party who is levelling the allegation. However, the HCNM has rarely been the subject of such a direct stand-off between participating States. Rather, to the extent he has been criticized at all, he has mainly been criticized on normative grounds for the specific approach that he pursues and embodies. According to some commentators and scholars, the HCNM as an institution with its security mandate and express objective of preventing conflict contributes to the ‘securitization’ of the minority question and thus inevitably leads to the pursuit of double standards when it comes to the extension of rights to various minority communities. The security track pursued by the HCNM, the argument goes, allows erratic interventions and privileges rights of States and their concerns for security, stability and territorial integrity over rights of national minorities and their interests. Such an approach also does not contribute to the development of a uniform policy on the regional protection of minority rights throughout the OSCE.10 While the allegation lacks hard

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E.g., Russia itself can be accused of pursuing geopolitically motivated double standards when it comes to support of various Russian minorities abroad; it is concerned with the situation of Russian speakers in the Baltic States while ignoring that of Russians in Turkmenistan. For discussion of different types of kin-State activism, see Natalie Sabanadze, ‘Minorities and Kin-States’, Helsinki Monitor, (3), 2006, p. 244–257. The criticism on the securitization of the minority question and its encouragement of the use of double standards has been developed largely by Will Kymlicka in a number of his works.

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empirical support, its conceptual potential nonetheless merits examination not least because perceptions are vital for credibility. The purpose of this article is to discuss the challenge of double standards in the work of the High Commissioner and to address the main criticisms raised against the HCNM in this context. We begin by describing the mandate of the HCNM as a conflict prevention instrument, which due to its stipulated focus on security with built-in flexibility can be mis-interpreted as conducive to the application of double if not multiple standards. We then move on to the exposition of the main criticisms of the HCNM’s security-focused approach. In this light, it becomes apparent that the critics favour an exclusively human rights based approach to the minority question as the only way capable of ensuring a fair treatment of all minorities and avoidance of double standards without due regard to the underlying and often dominant, if not spectacular, security dimension. We believe that human rights are not only important but also are an integral part of any sustainable resolution of minority related tensions. However, human rights are not sufficient to address the problem of State-minority relations because it is also a matter of good governance, nation-building and interState relations. It has a clear security dimension linking inextricably national and human security, domestic and international politics, rights and obligations. It would be misleading to deny or neglect that majority-minority relations are not only about culture and identity but also to a large extent about power, influence and control. Many, if not most, inter-ethnic disputes also feature competing interests over resources, division of competencies, power or prestige. They almost always indicate a failure of one or all sides to realize and value shared interests. While minorities often are the ‘underdog’, they may still be pushing a maximalist and divisive agenda which, in some cases, is linked closer to their own power struggle – often fuelled by the personal ambition of their own elites and by nationalist mobilisation – than to a quest for compliance with human rights and international law. Neighbouring States, often

See, for example, Will Kymlicka, ‘Justice and Security in the Accommodation of Minority Nationalism’, in: Stephen May, Tariq Madood and Judith Squire (eds.), Ethnicity, Nationalism and Minority Rights, Cambridge: Cambridge University Press 2004; Will Kymlicka, Multicultural Odysseys: Navigating the New International Politics of Diversity, Oxford: OUP 2007. For one of the earliest expositions of the concept of ‘securitization’, see Ole Weaver, ‘Securitization and Desecuritization’, in: Ronnie D. Lipschutz (ed.), On Security, New York: Columbia University Press 1995. See also Katherine Nobbs, ‘The Effective Protection of Minorities in the Wider Europe: Counterbalancing the Security Track’, in: Marc Weller, Denika Blacklock and Katherine Nobbs (eds), The Protection of Minorities in the Wider Europe, London: Palgrave 2008, p. 276–287.

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kin-States, also play a role adding an international and if not a geopolitical dimension to the so-called minority problem. As such, the security focus of the HCNM’s mandate and work is not only a fact, it is abundantly justified by the real situations confronted. That the HCNM does not perform a general human rights role is, therefore, a wholly misplaced criticism. We argue that the question of national minorities and particularly of Stateminority relations is cross-dimensional and requires a cross-dimensional approach as developed by the HCNM.11 It is for this reason that an HCNMtype institution has to exist to mitigate effectively the conflict potential of State-minority relations and to mediate successfully between interests of States and those of national minorities. Other organisations, including the Council of Europe, the EU Fundamental Rights Agency or any other organisation that may be set up in the future could focus exclusively on human rights aspects of the minority question. The HCNM’s security approach would still be needed to ensure that international efforts aimed at the prevention of conflicts and reduction of tensions are comprehensive and effective and to enlarge the political space and to advance the ground for the sustainable management, if not resolution, of minority-majority relations including through respect for human rights. This is exactly the work of the HCNM.

2. The HCNM’s Mandate It has been often repeated that the institution of the High Commissioner on National Minorities was created in response to the violent disintegration of former Yugoslavia and the proliferation of ethno-national conflicts in the former communist countries.12 Since the end of the Cold War, intra-state conflicts often linked to ethnicity and nationalism came to be seen as major threats to international peace and security. It also became clear that existing international instruments, conceived after the Second World War and further developed during the Cold War with a heavy focus on maintaining a balance of (nuclear) deterrence between the NATO and Warsaw Pact blocs, were incapable of dealing with the challenge of identity-based, intra-state conflict.

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See Krzysztof Drzewicki, ‘The Enlargement of the European Union and the OSCE High Commissioner on National Minorities’, The Protection of Minorities in the Wider Europe, op. cit. 8, p. 154–170. See Walter Kemp (ed.), Quiet Diplomacy in Action: The OSCE High Commissioner on National Minorities, The Hague: Kluwer Law International 2001; and Y.I. Diacofotakis, Expanding Conceptual Boundaries. The High Commissioner on National Minorities and the Protection of Minority Rights in the OSCE, Athens/Brussels: Ant. N. Sakkoulas and Bruylant 2002.

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As the international community struggled with the disintegration of societies along ethnic lines and failed to stop atrocities that were considered unthinkable in post-Second World War Europe, an international consensus slowly began to build around the need for an institutional response to these ‘new’ ethnic and national conflicts with an emphasis on the prevention of such conflicts at the earliest possible stage. As one observer has noted, an instrument had to be designed to facilitate the role of the OSCE in managing change resulting from post-Communist transition – essentially to address the relationship between minorities and majorities as part of the political process in the broadest sense.13 One of the initiators of the HCNM as an institution was the Netherlands, the country which presided over the European Community (now Union) when the crisis in Yugoslavia erupted. In 1992, the Dutch Ambassador to the then CSCE, Bert Veenendaal, warned that ‘the situation of national minorities is likely to become the cause, or a fertile environment, for several inter- or intra-state conflicts’ and that ‘the issue could develop into one of the most dangerous threats to stability and security in Europe.’14 Following long and careful negotiations the post of the High Commissioner on National Minorities was established as ‘an instrument of conflict prevention at the earliest possible stage’ (para 2 of the mandate). The mandate empowers the High Commissioner to provide early warning and, as appropriate, early action ‘in regard to tensions involving national minority issues which have not yet developed beyond an early warning state, but, in his judgement … have the potential to develop into a conflict … affecting peace, stability or relations between participating States…’ (para 3).15 The HCNM is authorized by the mandate to assess the nature of tensions and the parties involved, making a direct contact not only with State authorities but also with non-state actors. The HCNM is to make on-site visits in order to receive first-hand information from all parties concerned and from a variety of sources ‘including the media and non-governmental organisations’ and thus make a well-informed judgement ‘on the potential consequences for peace and stability within the OSCE area’ (para 11b) of a specific conflict. He is to engage with and promote dialogue between various actors, in order to facilitate resolution of disputes before they flare up into violent confrontation. In case the HCNM concludes that the situation is escalating out of his control 13 14 15

John Packer, cited in W. Kemp, op. cit., p. 8. Ibid., p. 9. For an overview of the origins of and negotiations regarding the HCNM mandate, see Olivier A. J. Brenninkmeijer, The OSCE High Commissioner on National Minorities: Negotiating the 1992 Conflict Prevention Mandate, Geneva: PSIO Occasional Paper 5/2005.

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and that his preventive efforts have been exhausted, the mandate specifies that he can issue an early warning to the Permanent Council via the Chairman-inOffice (CiO). Negotiating the mandate of the HCNM was far from easy as it necessarily touched upon issues which are highly sensitive for States. To begin with, many States feared that they would have to formally recognize national minorities living in their territories, thus inviting unwelcome interventions from neighbouring States who would use or abuse the presence of their ‘kin’ to meddle in their internal affairs. Other States feared that increased minority protection would be a first step towards the recognition of collective rights for ethnic groups, a development which they perceived as threatening the fabric and cohesion of multi-ethnic and multi-religious States. Yet others feared that the wide scope of the mandate coupled with the large measure of autonomy foreseen for the new conflict prevention institution would potentially expose extremely sensitive problems within their jurisdictions, perhaps even resulting in all of their dirty linen being washed in public. Given all of these concerns, it is not surprising that the mandate was finally adopted with a number of important restrictions. First of all, it does not allow the HCNM to ‘consider national minority issues in situations involving organised acts of terrorism’ or to establish any contact with an organisation linked to or condoning terrorism. Given the direct threat which armed violence and terrorism pose to vital State interests, direct involvement of a new international institution such as the HCNM was considered ‘off limits’ by most Delegations negotiating the Mandate. States facing a threat from terrorist separatist groups at the time of the negotiations, such as Spain and the United Kingdom, took a leading role in limiting the HCNM’s room manoeuvre in this regard.16 Second, the mandate also precludes the HCNM from engaging in any individual case, which rules out the possibility for individual persons to address the HCNM and seeking redress for real or perceived violations of their individual human and minority rights. At the same time, while the HCNM does not engage in individual cases with the aim of examining or providing redress, the information received from individuals or NGOs does help to create a comprehensive overview of certain situation. Also, where the HCNM is not able to take up such individual cases, he may refer them to other OSCE institutions or international organisations. Thirdly, the HCNM can only operate on the basis of confidentiality, which precludes him from using one of the most effective sticks usually available to human rights monitoring institutions, namely that

16

See Brenninkmeijer, op. cit., p. 66 ff.

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of ‘naming and shaming’ authorities that violate international standards. Finally, while granting the HCNM a large measure of independence and discretion by excluding the necessity to seek instructions for every single action or engagement in a certain country situation or by demanding a periodic reconfirmation of the mandate by the OSCE participating States, the mandate does make the HCNM accountable to the CiO of the organization. In particular, the HCNM is obliged to report to the CiO on a regular basis and after each country visit. The mandate of the HCNM was very much a child of its times. First it reflected the growing unease about the spread of ethno-national violence and what appeared as growing tensions between majority and minority communities within States. There was a real fear, as described above, that the experience of the Balkans and the Caucasus would spread all over Eastern Europe and usher a new era of instability and warfare. Second, the mandate reflected the growing acceptance among States that human rights is a matter of international concern and not simply a domestic affair of an individual State. The OSCE participating States made a forceful declaration to this effect in what is known as the Moscow Document, which states that commitments undertaken in the human dimension ‘are matters of direct and legitimate concern to all participating States and do not belong exclusively to the international affairs of the State concerned’.17 On this background, the OSCE participating States shaped the HCNM as an institution which can be described as an ‘intrusive’ instrument, allowing involvement in what would otherwise be considered the ‘internal affairs’ of States. Apart from the formal restrictions mentioned above, the HCNM has the authority to visit and engage in any State he or she deems necessary and expect a sufficient level of cooperation from the host authorities. The mandate of the HCNM, therefore, is based on the understanding that the violation of human rights, including minority rights, is one of the direct causes of intra-State strife and that these violations need to be addressed as part of the overall conflict prevention strategy.

3. National Minorities, Security and Double Standards Having reviewed the basic features of the High Commissioner’s mandate, it is possible to argue that double standards to a certain extent are inherent in the very set-up and operation of the institution. First, the HCNM is conceived as

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Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE (Moscow 1991), p. 29.

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a security instrument. Its role is to prevent conflicts and contribute to the regional and international security rather than serve as a human rights watchdog or an ombudsman for national minorities. This approach is also reflected in the name of the institution, which during the negotiations on the mandate changed from the High Commissioner ‘for’ National Minorities to a High Commissioner ‘on’ National Minorities, as the latter was deemed more neutral.18 This security approach also means that the High Commissioner will consider involvement only in those cases where serious tensions exist. Other minority problems that do not have the potential of escalating into an open conflict or posing a threat of serious confrontation would fall outside the scope of his mandate. Of course, that the mandate addresses a particular kind of situation (i.e. those with security risks) is hardly a ‘double standard’; while undoubtedly a justified priority, the mandate foresees the HCNM’s engagement wherever such situations may arise. The mandate, however, does not itself prescribe clear criteria permitting or restricting the HCNM’s involvement. Rather, it expressly requires the High Commissioner to exercise his ‘judgement’ in engaging only in those situations which ‘have the potential to develop into a conflict within the CSCE area, affecting peace, stability or relations between participating States’ (para 3) which opens his selection of situations to questioning. Some minorities feel unfairly ignored by the HCNM despite the fact that they may be under strong pressure from their respective governments. At the same time, certain States may feel overly scrutinized by the HCNM while others are seen as getting away lightly or escaping entirely. In deciding on the involvement in one case or another, under constraints of limited human and material resources, the HCNM has to take into account the potential risk of conflict; the possible implications for inter-State relations and for wider security and stability; the value added of his involvement; and the relevance of a specific case as a precedent with potential implications elsewhere.19 Such a ‘pragmatic’ approach 18 19

See Brenninkmeijer, op. cit., p. 73, footnote 133. For instance, the successive High Commissioners have been involved in addressing issues related to Hungary and its neighbors over the treatment of Hungarian minorities. The principal reason for the HC’s interest and engagement was not the fear of an inevitable conflict between Hungary and its neighbors, the likelihood of which was low since the very early 1990s, but rather his concern that an important precedent was being set with regard to kinState involvement in support of minorities abroad and needed to be addressed in order to avoid serious complications with more immediate security risks in other parts of the OSCE area. For discussion of the HCNM’s involvement in amending the so-called Hungarian Status Law, see Walter Kemp, ‘Kin-States Protecting National Minorities: Positive Trend or Dangerous Precedent?’, in: J. McGarry and M. Keating (eds.), European Integration and the Nationalities Question, London/New York: Routledge 2006, p. 124–138.

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envisaged by the mandate, however, may generate a perception of double standards both among minorities and participating States and create an impression that only ‘trouble-makers’ are rewarded with the attention and engagement of the HCNM. Second, and linked to the first point, is the lack of a clear definition of a national minority in the HCNM’s mandate, which leaves it up to the person occupying the post of the High Commissioner to determine which groups or communities qualify for the status of ‘national minority’ and, therefore, for the protection provided by the relevant international instruments.20 The mandate explicitly allows the HCNM to exercise his ‘judgement’ in this matter, endowing the incumbent with a great deal of flexibility. In a memorable phrase of the first High Commissioner, Max van der Stoel once remarked that ‘I know a minority when I see one’. This, however, is hardly a strict criterion. Van der Stoel later qualified his statement and offered a more objective interpretation of a minority. In his statement to the 1993 Human Dimension meeting in Warsaw, he explained: ‘First of all, a minority is a group with linguistic, ethnic or cultural characteristics which distinguish it from the majority. Secondly, a minority is a group which usually not only seeks to maintain its identity but also tries to give stronger expression to that identity.’21

Since the mandate draws heavily on the judgement, experience and political sense of the High Commissioner, it underscores the importance of personal qualities of the incumbent and states that the High Commissioner should be ‘an eminent international personality with long-standing experience from who an impartial performance of the function may be expected’ (para 8). Third, given the emphasis in the HCNM’s preventive action with regard to field-work including on-site visits and local contacts, the HCNM’s solutions and recommendations are almost always context specific. A great deal of the HCNM’s work depends on a sound knowledge and understanding of the political context in which his interlocutors are operating and in which decisions are being made. The HCNM, therefore, has been facing the difficult task of appearing consistent without practicing uniformity and by using universal standards in extremely diverse places and situations.22 Predictably, the

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For discussion of the problem of the definition of national minorities, see John Packer, ‘Problems in Defining National Minorities’, in: D. Fottrell and B. Bowring (eds.), Minority and Group Rights in the New Millennium, The Hague: Kluwer Law International 1999, p. 223–274. For more on the work of the first HCNM and his approach to ‘translating’ and applying universal standards to specific cases, see Kemp, op. cit., p. 30. Ibid., p. 27.

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HCNM’s recommendations have varied from place to place depending inter alia on the political climate, the situation of national minorities, their size, history and patterns of settlement. This means that the HCNM recommends a scaled application of minority rights depending on circumstances, which again could be mis-interpreted as another example of double standards. For example, one may ask why the HCNM supports the introduction or existence of wide-ranging autonomy for the Gagauz minority in Moldova, but tells Hungarians in Romania (who are also a sizable, autochthonous minority, living in concentrated settlements and with a capacity of self-governance) to be content with the rights covered by the Framework Convention? The question of autonomy has been particularly controversial in the work of the HCNM. Commentators such as Will Kymlicka have noted that claims of territorially-concentrated national minorities in Eastern and Central Europe are largely similar to those of national minorities in the West and, consequently, the same standards and principles should apply to both.23 The majority of Western countries have accepted minority claims for national recognition and self-determination and have adopted territorial autonomy to accommodate minority nationalism. Self-government in the form of territorial autonomy allows these minority communities to maintain their culture and identity, to exercise control over matters that directly affect them and develop public institutions operating in their language. In post-communist States of Eastern Europe, however, there is a great resistance to accept any form of territorial autonomy for national minorities and international institutions, such as the HCNM, have been markedly inconsistent in their approach to minority demands for territorial autonomy in this region. For example, while the HCNM has not supported claims for autonomy raised by Hungarian minorities living in Hungary’s neighbouring States, the HCNM has been positively disposed towards autonomy for Gagauzia and Transnistria in Moldova, for Crimea in Ukraine, for Abkhazia and South Ossetia in Georgia and so on. In response, the HCNM has argued that these cases are ‘atypical’ and represent an exception from the rule.24 However, according to Kymlicka, ‘the only way in which they are exceptional is that minorities seized power illegally and extra-constitutionally, without the consent of the state.’25 In other words, in all these cases except Crimea, the minority seized power through violent means,

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Kymlicka, op.cit. note 5 at p. 24. See Rob Zaagman, Conflict Prevention in the Baltic States: the OSCE High Commissioner on National Minorities in Estonia, Latvia and Lithuania, Flensburg: ECMI, 1999. Will Kymlicka, ‘National Minorities in Post-Communist Europe: The Role of International Norms and European Integration’, available at: http://www.law.utoronto.ca/documents/ globalization/Kymlicka_Oct7_04.pdf, p. 16.

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including armed uprising, challenging their state’s security and territorial integrity. Such an approach can be interpreted as ‘rewarding’ belligerence and intransigence on the part of both sides. Thus according to Kymlicka: ‘If minorities seize power, the OSCE rewards it by putting pressure on the state to accept an “exceptional” form of autonomy; if the majority refuses to even discuss autonomy proposals from a peaceful and law-abiding minority, the OSCE rewards it by putting pressure on minorities to be more “pragmatic”. This is perverse from the point of view of justice, but it seems to be the inevitable logic of the security-based approach. From a security perspective, it may indeed be correct that granting TA (territorial autonomy) to a law-abiding minority increases tensions; while supporting TA after it has been seized by a belligerent minority decreases tensions.’26

It follows, therefore, that the security mandate of the HCNM is conducive to the pursuit of double standards while the human rights mandate would not have allowed for such ‘dangerous’ inconsistencies. In the latter view, the question of national minorities should be addressed exclusively from the point of view of human rights and considerations of justice rather than from the perspective of security and interests of State stability and integrity. Such an argument depends on the assertion that it is only through the human rights based approach that fair and sustainable solutions could be found for minority problems, putting to rest long-lasting frictions between States and minorities and avoiding unnecessary securitization of the minority question. The argument continues that ‘securitization’ would erode the democratic space for voicing minority demands and reduces the likelihood that those demands will be accepted and treated as a matter of normal democratic politics, judged within the framework of human rights and the rule of law. Instead, the securitisation of minority rights, at least in the political discourse, would make violations of minority rights easier to justify in terms of protecting vital national security interests. Most importantly, the securitization of minority issues may generate the wrong kind of responses, often heavy handed, on the part of the State authorities that in the long run end up undermining the very security they are trying to uphold.

4. Security Through Justice We would take issue with some of the underlying assumptions of the above arguments (and their factual bases) and address them from the perspective

26

Ibid., p. 17.

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of the High Commissioner. The critique of the security approach to the minority question is based on the strict dichotomization of security and human rights. The work of the HCNM, however, shows that the two are interconnected in a complex and often mutually reinforcing way. As the first HCNM noted shortly after taking up his functions: ‘The respect for human rights and the maintenance of peace and security can no longer be considered as separate items on the world’s agenda of crucial questions, they are inextricably linked.’27

In other words, there is a clear link between protection of human rights, including minority rights, and prevention of conflicts, which translates into peace and security for States and their inhabitants – the intended beneficiaries and actual holders of the rights. There also is another, albeit less frequently noted, link between State security and stability and protection of human rights. This is particularly true in the case of minority rights, which requires an elaborate institutional framework and therefore is entirely dependent on a stable State and its functioning institutions. There is no point of asking failed States or States that are struggling to maintain their territorial integrity and political viability to develop and invest in the establishment of sophisticated minority rights mechanisms since they will be lacking the necessary resources and capacity to do so. This is a case where State security and human security, namely security of persons belonging to national minorities, is inextricably linked and where a one-sided emphasis on minority rights may backfire, stimulating rather than preventing conflict. This explains why the HCNM’s approach is based on balancing the interests and needs of States (reflecting general – often majoritarian – interests and wills) with those of minority communities to the effect of maximising benefits for both and not least for persons belonging to minorities who are by definition vulnerable. The HCNM’s approach therefore is based on understanding that considerations of justice and security do not have to be contradictory but can instead be complementary and mutually reinforcing. The effectiveness of the HCNM depends on taking advantage of this complementarity. Consequently, he pursues the human rights informed approach that can best be described as security through justice rather than security vs. justice. The HCNM is well aware of risks stemming from the overt securitization of the minority problem that

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Speech of Max van der Stoel of 3 February 1993 as quoted in: M. Merrick Yamamoto (ed.), Preventing Ethnic Conflict and Building Cohesive States, Visual Tutor Company, Carmichael, 2007, p. 31.

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have rightly been pointed out by the critics of the security approach as outlined above. He has, however, tried to instrumentalize the security label attached to his activities and put it to the benefit of both the cause of minority protection and State stability.28 In countries that are undergoing a difficult transition, securitization can be used for attracting attention and prioritising minority issues and concerns. It so happens that attaching a ‘security’ label to a certain issue or a problem ensures a greater attention and commitment – often more immediate in time and mobilising greater resources sooner – from relevant State authorities, international organisations and third States to tackle this problem. This can be particularly important for countries undergoing structural changes often linked to the painful processes of transition when resources are scarce and problems numerous. Under such circumstances the competition for the available resource is severe and governments often need compelling reasons to commit money and pay particular attention to minority schools, for example, instead of to all other, arguably equally (or more) burning issues. In such a context, the security perspective provides the HCNM with valuable leverage in his dealings with authorities as it can appeal to the self-interest of States, defined in terms of security and stability, and by doing so persuade them to tackle minority issues as a matter of priority. There is no doubt that the effectiveness of an institution such as the HCNM (which has neither enforcement power nor economic incentives and which cannot even rely on the ‘name and shame’ tactics due to the confidentiality aspect of the mandate) would be significantly curtailed if it were to speak only about the promotion of rights and minority interests especially in countries that are openly indifferent to the rights discourse. More to the point, given his mandate, unless there would be a link with security, he would simply be precluded from addressing the matter. The effectiveness and consequently the value of the HCNM’s involvement are enhanced considerably by appeal directly to the national security concerns of States, both when addressing these States directly or to third parties or organisations which can offer assistance or promote compliance with (or improved performance regarding) the international framework by that State.29 The HCNM uses the security approach for attracting attention of governments and ensuring their commitment and cooperation. His main and 28

29

See, Gwendolyn Sasse, ‘Securitization or Securing Rights? Exploring the Conceptual Foundations of Policies towards Minorities and Migrants in Europe’, Journal of Common Market Studies, 2005, p. 682–684. See Neil MacFarlane & Yuen Foong Khong, Human Security and UN: A Critical History, Indiana: Indiana University Press, 2006.

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consistent message, however, is that the only way to address the minority problem is through the respect and protection of human rights, including minority rights. As the first HCNM noted: ‘In its broadest sense, conflict prevention requires a stable and pluralist civil society that guarantees full respect for human rights and fundamental freedoms. It should be part of a comprehensive view of security wherein the protection and promotion of human rights and fundamental freedoms, along with economic and environmental cooperation, are considered to be just as important as politico-military aspects of maintaining peace and stability.30

The importance the HCNM attaches to the normative framework of protection of minority rights is demonstrated also through his thematic recommendations that have served the purpose of clarifying and enhancing norms and standards for minority protection.31 Moreover, in their turn these recommendations have contributed the clarification, enhanced implementation and progressive development of specifically applicable normative minority rights instruments such as the Framework Convention as well as generally applicable human rights instruments (such as the two United Nations Covenants or the Convention on the Rights of the Child) to which he has made express reference in his work and, reciprocally, the relevant supervisory bodies have followed the HCNM’s work.32 One may argue that this goes beyond his mandate which, strictly speaking, is prevention of conflicts and not development of human rights norms. However, precisely because of the close connection between the two, the HCNM has worked as an instrument that integrates norms in his activities and thus performs the function of a ‘normative

30

31

32

Speech of Max van der Stoel of 19 October 1999 as quoted in: M. Merrick Yamamoto, op.cit., p. 21. For discussion of the High Commissioner’s influence on the elaboration of standards for the protection of persons belonging to national minorities, see Arie Bloed and Rianne Letschert, ‘The OSCE High Commissioner on National Minorities’, in: Kristin Henrard and Robert Dunbar (eds.), Synergies in Minority Protection: European and International Law Perspectives, Cambridge: Cambridge University Press, 2008, p. 88–118. References to several HCNM Recommendations can be found, e.g. in the thematic recommendations of the FCNM Advisory Committee on education (ACFC/25DOC(2006)002 of 2 March 2006) and on participation in public life (ACFC/31DOC(2008)001 of 5 May 2008). They have also been taken up by other Council of Europe bodies such as the CoE Parliamentary Assembly (see, e.g., the Parliamentary Assembly’s Sub-Committee on the Rights of Minorities in the Hague, which on 17 November 2006 adopted its Recommendation 1773 (2006) on the 2003 HCNM Guidelines on the Use of Minority Languages in the Broadcast Media and the Council of Europe Standards: Need to Enhance Cooperation and Synergy with the OSCE). The same applies to UN bodies such as the work of the UN Independent Expert on Minority Issues who regularly refers to the HCNM’s recommendations.

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intermediary’.33 According to Ratner’s analysis, the HCNM ‘translates’ norms for each and every situation and clarifies their applicability and ways of implementation. He promotes the observance of a norm and seeks to induce compliance through the process of communication and persuasion with relevant decision-makers.34 He also promotes the respect for and observance of norms among international organisations, including by advocating speedy ratification – without reservations – of the Framework Convention, the European Charter on Regional and Minority Languages as well as other instruments. Once applicable to the States in which he is active, he promotes the national implementation of these instruments, particularly by pushing for the implementation of the findings of their respective monitoring bodies. The HCNM’s promotion of normative standards is directed not only at States. For instance, the second HCNM, Rolf Ekéus, openly criticized the EU’s policy towards minority rights and the double standards it applies towards EU member states and non-member states. He argued that the standards on which the Copenhagen criteria are based should be equally and consistently applicable to all EU member States. Otherwise, the relationship between the existing and aspiring EU member States would be unbalanced in terms of applicable standards.’35 The HCNM, therefore, both through the mandate and through the praxis, represents an embodiment of a complex interconnection between the rights and security dimensions. His approach demonstrates that the relationship between the two is neither that of opposition nor of a choice between two mutually exclusive alternatives. Instead, the two are connected in such a way that they complement and reinforce each other. Sustainable peace and security can only be achieved through the respect of human rights, including minority rights. Peaceful and secure societies in turn are much less prone to securitizing rights and are more open to the recognition and acceptance of legitimate concerns of both groups and individuals. HCNM’s critics such as Kymlicka argue that by upholding security the HCNM jeopardizes the rights. However, the rights are more likely to be jeopardised when States feel insecure and under threat. Indeed, it is a well-known adage that war is the anti-thesis of human rights – including, and even especially, the rights of persons belonging to minorities. Therefore, by addressing their security concerns the HCNM

33

34 35

See S.R. Ratner, ‘Does International Law Matter in Preventing Ethnic Conflict?’, New York University Journal of International Law and Politics, 32(3), 2000, p. 591–698. Ibid., p. 668. Address by Rolf Ekéus, From the Copenhagen Criteria to the Copenhagen Summit: The Protection of National Minorities in an Enlarging Europe, Copenhagen, 5 November 2002, available at http://www.osce.org/documents/hcnm/2002/11/465_en.pdf

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also, and with greater efficacy, reinforces and upholds minority rights and works specifically, persistently and with considerable success to institute, support and see realised minority rights both in general and for particular groups (i.e. those in situations falling within his mandate). Does this mean, however, that the HCNM’s involvement only in cases where tensions exist and the risk of violent conflict is high indirectly encourages minorities to pursue aggressive, if not violent, means in order to attract attention to their plight? And does the context sensitive approach justify a different application of minority rights standards in different cases of HCNM’s engagement? The mandate indeed requires that the HCNM gets involved at an early stage in those situations where threats to security exist. This in no way translates into ‘rewarding’ the violence. First, because groups rarely rebel or pursue violent means simply because they are attention-seekers determined to get the HCNM, CoE, NATO or anybody else involved. The internal dynamics leading to violence are far more complex and multifaceted. For example, Hungarian minorities in Romania and Slovakia are not going to pick up arms simply because the Gagauz did so and achieved territorial autonomy. This is the case even if Hungarians feel ‘unfairly’ treated by the international community.36 Simply, there is no evidence to support the argument that the HCNM approach in effect invites violence – and reflection on human tendencies and real risks suggests that such a conclusion would require perverse calculations and wholly disproportionate risks for the theoretically interested minority groups, their leaders and their individual members. Second, it is true that violent conflict attracts great international attention and that the international community is still much more reactive to conflicts than preventive. The HCNM, however, gets involved before the violence erupts or even before tensions hit the headlines. It is therefore one of the few institutions that pays attention to the so-called ‘low profile’ cases with a potential for complications. A good example in this respect is the HCNM’s long-lasting involvement in Georgia’s Armenian and Azeri populated areas where violence has not erupted but tensions exist. The international attention, however, has understandably been focused on ‘hotter’ cases such as Abkhazia and South Ossetia.

5. The Context Specific Application of Human and Minority Rights As for the question with regard to the differentiated application of minority standards, we believe that the question itself is misconstrued as it fails to take 36

See Ted Robert Gurr, Why Men Rebel?, Princeton: Princeton University Press 1970.

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into account that minority rights standards are themselves designed to be context specific and require substantive applicability of international human and minority rights law with the aim of offering protection where needed. It also misrepresents the complexity and subtlety of the legal framework, as it is based on the erroneous assumption that all groups which fall inside a possible definition of minority should have the same rights while those who fall outside should not.37 Instead of this ‘all-or-nothing’ approach, a ‘significantly more flexible and nuanced approach’ is needed.38 The situation of minorities, their origin and problems differ vastly one from the other and the responses must therefore also be different.39 In the same vein, not all ‘national minorities’ are automatically entitled to all minority rights. Some of the ‘enhanced minority rights’ – such as autonomy and special forms of political participation including reserved seats – are in fact only advisable (and not exactly entitled) in very specific circumstances. This conclusion is shared by both the Venice Commission and the Advisory Committee on the FCNM. The latter states: ‘In the Advisory Committee’s opinion, the Framework Convention is not an instrument that operates on an ‘all-or-nothing’ basis. Even if a group is covered by the Framework Convention, it does not necessarily follow that all of the Convention’s articles apply to the persons belonging to that minority. Similarly, if a minority is not covered by the majority of the provisions in the Framework Convention, that does not necessarily mean that none of the provisions is relevant to the members of that group. The Advisory Committee believes that a nuanced, article-by-article approach to the “definition” question is not only fully in line with the text of the Framework Convention but is actually dictated by it.’40

Such a nuanced approach does not only examine the extent and applicability of minority rights obligations depending on the circumstances of every individual situation, but also takes full account of all applicable human rights norms and non-discrimination law.41 After all, minority rights should be seen as ‘essentially an extension of human rights, (…) if the ‘ordinary’ human rights 37

38

39

40

41

Asbørn Eide, ‘The Rights of “Old” versus “New” Minorities’, in: Bloed et alia (ed.), European Yearbook on Minority Issues, Volume 2, 2002/2003, Brill, 2004, p. 379. VC Report, paragraph 55, on the personal scope of application of the minority rights protection under the Framework Convention. See Asbjørn Eide, Possible ways and means of facilitating the peaceful and constructive solution of problems involving minorities; final report of 16 July 1993, submitted to the UN Commission on Human Rights, E/CN.4/Sub.2/1993/34/, paragraph 28. See the ACFC’s Opinion of 14 September 2001 on PACE Recommendation 1492 (2001) on the rights of national minorities, ad §§ 6, 16 and especially 17 (emphasis added). As the very first article of the Framework Convention states, ‘The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights.’ (emphasis added).

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of everyone were respected, the needs of minorities would also be respected.’42 This nuanced approach is not only being put forward by ‘naturally preoccupied minority rights experts’, but is shared much more widely. The E.U. Network of Independent Experts on Fundamental Rights, for example, states: ‘“minority rights” should be understood, rather than a set of rights recognized to certain groups recognized as “(national) minorities”, as a list of guarantees which are recognized to individuals as members of certain groups, or to these groups themselves, but whose beneficiaries will vary according to the identity of the right which is at stake.’43

While positive State obligations to promote, for example, mother tongue education may often be reserved to those whose connections to the State are stronger, these positive State obligations may also arise for groups or individuals present in a State as a result of more or less recent immigration.44 The Common Basic Principles for Immigrant Integration Policy in the European Union, for example, state that ‘Full respect for the immigrants’ and their descendants’ own language and culture should be also an important element of integration policy’, something which seems hard, if not impossible, to realise without some form of State action.45 Equally, ‘classic’ human rights such as freedom of expression, freedom of religion and the right to respect for private life will also guarantee these groups the right to practice, maintain and develop a certain lifestyle, language or religion. In certain circumstances, this protection may equally entail positive obligations for the State. Conversely, the right to be treated equally, including an effective non-discrimination law framework and accessible means of enforcement, is indispensable for the protection of persons belonging to national minorities. Without this protection, the official recognition of a group as a minority may well diminish its protection rather than enhance it.46

42 43

44

45

46

Eide 2004, p. 366. See also the VC-report, paras 102 and 144. E.U. Network of Independent Experts on Fundamental Rights, Thematic Comment No. 3, The Protection of Minorities in the European Union, 2005, http://ec.europa.eu/justice_home/ cfr_cdf/doc/thematic_comments_2005_en.pdf Indeed, in modern international law many scholars argue that the classification into ‘negative’ and ‘positive’ State obligations is insufficient and should at least be supplemented by different characterizations such as obligations to respect, protect and ensure, or a differentiation into obligations of result or of conduct. Council of Ministers, European Union, Conclusions 2618th Council Meeting Justice and Home Affairs, Brussels, 19 November 2004, at http://ue.eu.int/ueDocs/cms_Data/docs/ pressData/en/jha/82745.pdf Dilek Kurban, ‘Unravelling a Trade-Off: Reconciling Minority Rights and Full Citizenship in Turkey’, European Yearbook on Minority Issues, Volume 4, 2004/2005, Brill, 2006, p. 370.

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In conclusion, separating different components of the international human and minority rights framework such as a supposed right to autonomy is not only bound to give rise to arbitrary distinctions, it will also result in a weakening of protection. A pragmatic approach, in which it is acknowledged that different situations require different responses at different times, is the best way forward and offers the necessary flexibility. Elaborating on the conditions that may apply to access to certain minority rights does not contradict this approach. In any event, we should ensure that any law, political settlement or other compromise regarding the implementation of minority rights does not fall short of accepted international standards in the area of minorities and indigenous groups in particular. Context also determines how much margin of appreciation is to be visualised for States. The question of territorial autonomy is controversial not only in the work of the HCNM but also in the work of those norm-setting organisations that are primarily concerned with human rights as opposed to security. There is no internationally recognized right to autonomy and no universally accepted approach to what should constitute the content of autonomy.47 It can best be described as a practical solution to a concrete set of practical problems. As a rule, the specific content of autonomy is negotiated by the parties involved and should reflect their interests and needs. However, in order for negotiations on power-sharing and division of jurisdiction to be held successfully and for agreements to be implemented and honoured it is essential that a broad framework of participatory democracy, based on respect of human rights, including minority rights, and the rule of law is adequately developed and put in place. Those who promote autonomy as the best solution to all conflicts do so on the assumption that it has worked well in the Western world and there is no reason for it not to work equally well in Eastern Europe and the former Soviet Union. The reality, however, is more complex and the evidence more mixed. The Communist legacy led to the discrediting of territorial autonomy as a viable solution both for States and minorities. From the perspective of former Communist States, autonomy is dangerous because the experience of the

47

See Markku Suksi (ed.), Autonomy: Applications and Implications, The Hague: Kluwer Law International 1998. For an account of the HCNM’s engagement in Crimea and specifically the negotiation of the constitutional terms for the Crimean autonomy, see John Packer, ‘Autonomy within the OSCE: The Case of Crimea’, in: Suski, Autonomy: Applications and Implications, p. 295–316; See also John Packer, ‘Reflections on Implementation Mechanisms of Selected Autonomy, Self-Rule and Similar Arrangements’, in: M. Boltjes (ed.), Implementing Negotiated Agreements: The Real Challenge to Intrastate Peace, The Hague: T.M.C. Asser Press 2007, p. 69–85.

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former Soviet Union shows a detectable correlation between ethnic conflict and autonomy. All currently frozen conflicts took place in those territories that were autonomous under the Soviet system of administration. These include Abkhazia and South Ossetia in Georgia, Transnistria in Moldova and Nagorno-Karabakh in Azerbaijan. Such correlation, whether real or imagined, does not help to allay fears that territorial autonomy may pose a threat to the integrity and cohesion of a State. Under these circumstances advocating for autonomy as a good in itself and a solution to all minority concerns can be highly problematic and will solicit strong reactions. Given real experience and underlying declared fears, what arguments should the HCNM use to convince the Georgian Government, for instance, that they should not only grant extensive autonomy to the break-away provinces but do the same for other territorially concentrated minorities such as Armenians and Azeris? From the perspective of minorities, territorial autonomy often also carries little meaning and legitimacy. None of the above minorities trapped in frozen conflicts would accept autonomy as a solution, arguing that this is exactly what they had and there is no incentive for them to return to it. Some would argue that the existence of autonomous arrangements did not stop the nationalist regimes from stripping them of their special status as in the case of Georgia and South Ossetia or Serbia and Kosovo.48 In other words, for autonomy, power-sharing and devolution to work and be acceptable to all parties involved certain conditions need to be put in place through democratization, good governance, pluralistic nation-building and de-radicalisation of nationalist politics. Where political conditions are not conducive to finding negotiated solutions, including through power-sharing arrangements, inter-ethnic relations are inevitably linked to the question of State security and cannot be addressed only and exclusively from the human rights perspective. This would erroneously assume that once human rights, including minority rights, are protected and even extensive autonomous arrangements are granted, the problem of State-minority relations will be resolved. No doubt the protection of rights plays an important role in reducing tensions and resolving conflicts, hence the link between human rights and security discussed earlier. However, it would be simplistic to assume that a good human rights framework and even its proper implementation will always be enough. In the predominant majority of situations where the HCNM is involved, it is clear that the human rights, including minority rights, framework is not enough and needs to be

48

See Svante Cornell, ‘The Devaluation of the Concept of Autonomy: National Minorities in the Former Soviet Union’, Central Asian Survey, 18(2), 1999, p. 185–196.

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supplemented with other frameworks such as good governance, democratisation, and overall integration of the multi-ethnic society to create the conditions for sustainable and democratic co-existence between different communities. Relying exclusively on a human rights-based approach while the other necessary elements are not yet in place, means that compromises between majorities and minorities of various kinds either cannot be reached or will unravel due to the fundamental tensions which inevitably arise in States going through rapid and often dramatic economic, social and political transitions. Furthermore, the human rights perspective assumes that the question of national minorities, including that of minority nationalism, is only a matter of culture and identity and hence can best be addressed through human rights instruments. This ignores a large part of the rationale and the development of minority rights as a component of international law which has its very origins in security considerations. This applies not only to the initial development of minority rights during the late nineteenth century, and subsequently within the framework of the League Nations in the inter bellum – both before human rights were even codified as such in international law – but also to the revival of the concept at the end of the Cold War.49 In all of these periods, security considerations were the initial and predominant driving force behind the accelerated development of the normative and institutional aspects of the minority rights framework. Moreover, this portrayal of minority rights as only being a sub-variety of human rights ignores the fact that nationalism in general, including minority nationalism, is as much about political power and security as it is about culture and identity. The distinction between culture and politics, power and identity is rarely as clear-cut as it is assumed, especially when it comes to majority-minority relations. Minority communities within multi-national States are as likely to be concerned with their political status and security as any other political community would be. This means that State-minority relations are often characterised by political bargaining, recourse to external powers such as kin-States or international organisations and are often complicated when interests, real or perceived, of States and minority communities do not coincide. It is precisely for these situations that a conflict prevention instrument such as the HCNM is necessary, which will take into account both security and human rights dimensions of State-minority relations and prevent their escalation into violent conflict as early as possible.

49

See Li-Ann Thio, Managing Babel: The International Legal Protection of Minorities in the Twentieth Century, Leiden: Martinus Nijhoff Publishers 2005.

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In order to better illustrate the above point, let us evoke the example of the Baltic States in the early 1990s. Newly independent Latvia and Estonia denied citizenship to the predominant majority of their sizable Russian minorities, fearing that granting them citizenship (and with it voting rights) would effectively return Latvia and Estonia under Russia’s control. It did not help that Russia openly declared its interest in the fate of Russian minorities all over the former Soviet Union and the Baltic States in particular. There was a real risk that Russia would instrumentalize its kin-minorities and use them as a pretext for interference in the newly independent and still fragile Baltic States. As summarized by Jennifer Jackson-Preece, ‘granting citizenship to an ethnic Russian community that was relocated to the Baltic States by Stalin in order to ensure Soviet political control and who received privileges during the Soviet era would be a threat to national identities and independence of these States.’50 At the same time, from the perspective of the Russian minority, denying them citizenship was a gross and systematic violation of their basic human rights – in effect rendering most of them Stateless in violation of general international law. This meant not only limiting their rights of political participation but also denied them access to pensions and other social security benefits. Since 1992, the successive High Commissioners have been involved in the situations of Russian minorities in the Baltic States, adopting a gradual approach to reducing the number of non-citizens and balancing between needs and rights of national minorities and the legitimate national security concerns of the Baltic States.51 Approaching this thorny issue exclusively on the basis of human rights would not have left any person belonging to the Russian minority without citizenship and the rights stemming from it. However, it might well have risked the very existence and political survival of at least two of the three Baltic States – hardly a morally acceptable outcome (or a politically real one). Indeed, efforts to force (by which means?) such an outcome would almost certainly have resulted in violence and considerable instability. The gradual but consistent approach, which allowed time for the consolidation and Euro-Atlantic integration of the Baltic States while at the same time easing stringent language and citizenship requirements, has arguably benefited minority communities and improved majority-minority relations.

50

51

Jennifer Jackson-Preece, ‘National Minority Rights Enforcement in Europe: A Difficult Balancing Act’, International Journal of Peace Studies, 3(2), 1998, p. 6. For a detailed discussion of the HCNM’s involvement in the Baltic States, see Zaagman, op.cit. 21.

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6. The Kin-State Factor This seems – to some extent at least – rather an issue of potential double standards adopted by States, notably in terms of apparent contradictions between domestic and foreign policies. Of course, irrespective of the motivations held and rationales advanced by States (and minorities), whether or not sensible and consistent, it is exactly the consequences of these which the HCNM must address in seeking to prevent the worsening of tensions or the eruption of violence ‘affecting peace, stability or relations between participating States’ (to recall again the HCNM’s mandate). Thus, the HCNM must engage in such situations – littered as they may be with contradictions, inequities and other historical or contemporary complications. Certainly, one of the key factors contributing to the purported securitization of State-minority relations in Eastern Europe and the former Soviet Union is the role of the so-called kin-States.52 The presence of kin-States is associated with threats of irredentism, justified or not, and with fears of potential political and even military intervention from often neighbouring States claiming protection of ‘their people’ abroad. Historic legacies also exacerbate the problem, particularly when the kin-State in question is a former imperial power. The successive High Commissioners have engaged in those cases where kinState involvement had a potential of exacerbating State-minority relations, with the Baltic States being just one such example. Recently, the current High Commissioner, Knut Vollebaek, addressed the issue through a general set of recommendations adopted in Bolzano/Bozen and entitled Recommendations on National Minorities in Inter-State Relations.53 The Recommendations tackle what has been described as the triadic nexus of home States, minorities and kin-States54 and show how States could pursue their interest with respect to minorities abroad in a way that does not strain inter-State relations and undermine both State security and minority rights. Benign, friendly kin-States on the border are crucial for reassuring States of residence and, consequently, 52

53 54

For the first international opinion on the role of kin-States, see Venice Commission Report on The Preferential Treatment of National Minorities by their Kin-State, Council of Europe Publishing, 2002. For the relations between minorities and kin-States in the context of postcommunist Europe, see also Stephen M. Saideman and R. William Ayres, For Kin or Country: Xenophobia, Nationalism and War, Columbia: Columbia University Press 2008. Available at http://www.osce.org/publications/hcnm/2008/10/33388_1189_en.pdf Rogers Brubaker, Nationalism Reframed, Cambridge: Cambridge University Press, 1996; the triad refers to the three actors being the State in which the minority actually lives, the minority itself, and the State which may claim a responsibility towards that minority and to which the minority – comprising non-citizen, non-residents of that State – sometimes feel allegiance or seeks benefits including protection.

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allowing for the normalisation and de-securitization of majority-minority relations in their territories. The Bolzano/Bozen Recommendations in part address the question of double standards in policies of kin-States, noting that when States ‘demonstrate greater interest in minorities abroad than at home or actively support a particular minority in one country while neglecting it elsewhere, the motives and credibility of their actions may be put into question’ (Rec 15, p. 23). This does not mean endorsement of full reciprocity in inter-State relations regarding protection of minorities since domestic standards set by individual States are not always applicable to the situation in other States. It is, however, logical that when a State actively promotes rights and pursues policies in support of certain minorities abroad, it may be expected to protect and promote the rights of persons belonging to national minorities within its own jurisdiction in a similar way. The Bolzano/Bozen Recommendations also caution States against pursuing overt discrepancies in similar situations and demonstrating inconsistency in their treatment of so-called kin-minorities in the different countries. According to the explanatory note of the Recommendations, ‘the State where the minority in question resides may draw attention to such discrepancies and question the underlying motives’ (p. 23). Consistency in these respects strikes at the heart of arguments and, sometimes, the good faith of those advancing them. The particular Recommendation (on State interests abroad) touches upon a sensitive issue of State motivations in supporting minority communities abroad. In recent years, States have engaged with minorities abroad for a variety of reasons, ranging from nationalist to geopolitical and normative considerations.55 For some, the issue of kin-minorities abroad is an integral part of domestic, nation-building policy and an important element of the internal nationalist discourse. In this case, State policies towards minorities abroad are mainly driven by internal political considerations, blurring the boundaries between domestic and foreign politics. For others, kin-minorities are instrumental for pursuing geopolitical objectives, such as spreading the influence, creating zones of special interest and maintaining leverage over States of residence. In this case, policies towards kin-minorities residing in different States tend to vary significantly depending on geopolitical objectives pursued vis-àvis States of residence. It is also possible, albeit less likely, that States act out of purely normative considerations, trying to promote rights of national minorities in general and of their kin-minorities in particular and to enhance universal standards of minority protection. More frequently, normative discourse

55

See Natalie Sabanadze, ‘Minorities and Kin-States’, op.cit. 8.

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is used in combination with nationalist and geopolitical types of kin-State activism. It seems self-evident in fact (and rudimentary international relations theory) that States act according to their interests, whether bilateral or multilateral. As long as nationalist and geopolitical considerations drive States in their relations with certain minority groups abroad, the question of national minorities will remain a matter of national security and of regional power politics. This means that conflicts involving minority groups often take on an international dimension and cannot be solved purely within the framework of domestic politics and human rights. In this context the HCNM’s approach is not only justified, but is most relevant.

7. Conclusion The security mandate of the High Commissioner requires that he gets involved in those situations where serious tensions exist and where peace and stability of the OSCE area could be jeopardized. The HCNM does not have a universal formula for prevention of conflicts involving national minorities; he seeks solutions that are sensitive to specific contexts and reflect different dimensions of a particular problem which he is trying to address. Some critics argue that treating national minorities from the point of view of security is problematic. Allegedly, it leads to the application of double standards, i.e. that it is unfair to those minorities who do not create problems or engage in violence, and it promotes intransigence on the part of conflicting parties. In this view, double standards can be avoided and sustainable solutions found only within the framework of human rights. Whether national minorities are a matter of security or human rights is debated mainly in the academic literature. This article highlighted some of the most interesting and challenging arguments from that debate and addressed them from the point of view of the institution of the High Commissioner. It tried to show that the HCNM’s approach is justified first because security and human rights are closely inter-connected at many different levels and, second, because the question of national minorities is multi-dimensional and requires a comprehensive approach that goes beyond human rights. We argue that State-minority relations are as much about power politics as they are about culture politics. They have both domestic and international dimensions, touching upon such fundamental political issues as democratic participation and good governance, models of nation- and State-building, the links and the involvement of outside powers, including kin-States or regional hegemons. From the HCNM’s perspective it is essential to understand and address this

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problem in all its complexity in order to minimize the risk of conflict both within and between States. Moreover, we argued that the minority rights framework itself calls for a context specific and differentiated approach rather than an ‘all-or-nothing’ catalogue of rigid pre-determined models and entitlements. Strictly speaking, the HCNM is not immune from application of double standards and this article was not meant to make such a case. Of course, the HCNM would not approach Russia or Turkey in exactly the same way as he would Serbia or Georgia. This is, however, true of any other international organisation or institution and reflects the real inequalities within the existing international system. The HCNM is part of this system and operates within the structural constraints imposed by it. The question is, whether such an institution is useful and whether it upholds both international security and human dignity. We contend that it does. The HCNM in many instances succeeded in balancing the interests of States with the rights of their populations belonging to national minorities, and by doing so made an important contribution to the cause of conflict prevention and the realisation of rights (especially minority rights). It can be argued that a more intrusive and inflexible instrument, concerned with upholding standards for the sake of standards, would not only be controversial but ultimately ineffective.56

56

This is also argued by Jennifer Jackson-Preece, op.cit. 48, p. 8.

Reducing the Risk of Differential Standards in Minority Protection: The Holistic Approach of the UN Independent Expert on Minority Issues Anna Meijknecht1 In 2005, the first UN independent expert (IE) on minority issues, Gay McDougal, received a broad and general mandate. Given the global scope of the mandate, the complex problems minorities and indigenous peoples are facing worldwide, and the limited financial and human resources available to exercise this mandate, one could be forgiven for expecting the IE to narrow the focus of her work. Surprisingly, however, all developments point in the opposite direction: the IE has chosen a holistic approach towards minority issues and her working field is constantly growing and expanding. This article will describe how the IE’s mandate makes for a large measure of flexibility and adaptability, how this results in a continuously expanding working field and how, consequently, the risk of differential standards in the IE’s work is reduced by such a holistic approach.

1. Introduction The UN independent expert on minority issues is a special procedures mandate created by the UN Commission on Human Rights in 2005.2 On 29 July 2005, the High Commissioner for Human Rights announced the appointment of Gay McDougall (United States of America) as the independent expert on minority issues (hereafter: the IE), initially for two years. The IE’s mandate is broadly formulated, enabling her to complement the mandates of other UN and regional minority rights mechanisms and, thus, to address the ‘protection gap’ that exists with regard to minority rights.3 A broad and general mandate makes for a large measure of flexibility and adaptability to all possible issues concerning minorities and indigenous

1 2 3

Assistant professor in International Law at the University of Tilburg. Commission on Human Rights Res. 2005/79, 21 April 2005. E/CN.4/2006/74, 6 January 2006, para 5.

Kristin Henrard, Double Standards Pertaining to Minority Protection, pp. 145–162. © 2010 Koninklijke Brill NV. Printed in the Netherlands.

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peoples. However, such a general mandate also carries the danger of creating an unfocused minority mechanism, filling the gaps left by other mechanisms and, consequently, dealing with specific minority issues in an arbitrary manner. Moreover, given the global scope of the mandate, the complex problems minorities and indigenous peoples are facing worldwide, and the limited financial and human resources available to exercise this mandate, a focused operational scope and the application of differential standards seem unavoidable. In this article, the IE’s work will be analysed in order to find out where the focus lies and whether there are specific groups or problems receiving particular attention. Section 2 contains a description of the mandate; Section 3 discusses the content of the mandate and how it has been extended to other areas of concern and priorities; Section 4 describes the IE’s ‘toolkit’ or working methods; Section 5 analyzes how the gender perspective is reflected in the IE’s work; and Section 6 contains the conclusions and the answers to the question to what extent and how the IE limits and focuses the scope of her work. The analysis presented in this paper will show whether and how the IE succeeds in avoiding the risk of applying differential standards in her work.

2. The Broad Mandate At first glance, the initial mandate as formulated by the Commission on Human Rights in its Resolution 2005/79 seems to concern mainly the IE’s working methods. The practical side of the mandate consists of the following activities: (a) Consultations with governments; (b) Identification of best practices and possibilities for technical cooperation with the Office of the United Nations High Commissioner for Human Rights (OHCHR); (c) Close cooperation while avoiding duplication, with existing relevant United Nations bodies, mandates, mechanisms as well as regional organizations; and (d) Taking into account the views of non-governmental organizations; In 2008, the Human Rights Council extended the IE’s mandate for a period of three years.4 This mandate added to the above-mentioned activities: (e) Guidance of the work of the Forum on Minority Issues; and 4

A/HRC/7/L.17, 20 March 2008.

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(f) Submitting annual reports to the Council, including recommendations for effective strategies for the better implementation of the rights of persons belonging to minorities.5 In the same resolution, States are called upon to cooperate with the IE. In addition, specialized agencies, regional organizations, national human rights institutions, and non-governmental organizations are encouraged to develop regular dialogue and cooperation with the mandate-holder.6 Finally, the Secretary-General and the High Commissioner for Human Rights are requested to provide all the human, technical and financial assistance necessary.7 Apart from these practical working methods, the mandate seems to provide only a very general idea of the actual content, or focus, of the IE’s work. According to the mandate, the IE will ‘promote the implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, including through consultations with Governments, taking into account existing international standards and national legislation concerning minorities’. Furthermore, reference is made to the application of ‘a gender perspective’ in the IE’s work.8

3. ‘Areas of Concern’ and ‘Strategic Objectives The IE seems to be aware of the need to concretize this broadly formulated mandate. In the first place, as she explains in her reports, she looks to the Declaration on the Rights of Minorities to inform the scope of her mandate and uses the commentary to the Declaration on the Rights of Minorities9 as a useful tool for interpreting the Declaration. Furthermore, she relies on Article 27 of the International Covenant of Civil and Political Rights (ICCPR) and Article 30 of the Convention on the Rights of the Child (CRC).10 Based on these international standards relating to minority rights the IE has identified four, still very broad, ‘areas of concern’ relating to minorities around the world:11

5 6 7 8

9 10 11

Ibid., para 3g. Ibid., para 4. Ibid., para 5. Compare also: E/CN.4/2006/74, 6 January 2006, para 18. Commission on Human Rights Res. 2005/79, 21 April 2005, paras 6a and 6c; A/HRC/7/L.17, 20 March 2008, paras 3a and 3c. E/CN.4/Sub.2/AC.5/2005/2, 4 April 2005. E/CN.4/2006/74, 6 January 2006, para 1. Ibid., para 22.

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(a) Protecting a minority’s existence, including through protection of their physical integrity and the prevention of genocide; (b) Protecting and promoting cultural and social identity, including the right of individuals to choose which ethnic, linguistic or religious groups they wish to be identified with and the right of those groups to affirm and protect their collective identity and to reject forced assimilation; (c) Ensuring effective non-discrimination and equality, including ending structural or systemic discrimination; and (d) Ensuring effective participation of members of minorities in public life, especially with regard to decisions that affect them. These four areas of concern are very general indications of the content of the IE’s work. Moreover, they relate to the most difficult and comprehensive issues mentioned in all relevant international documents relating to minorities and indigenous peoples. Nevertheless, the IE’s work over the last years appears to have been firmly embedded in those four areas. This becomes particularly visible in, for instance, the content and structure of the IE’s country mission reports.12 At the same time, the breadth of each of these areas reveals the IE’s holistic approach to minority issues permitting her to address an enormous range of specific groups, issues and geographical areas. For instance, under the heading of ‘Protecting and promoting cultural and social identity’, the IE deals in her reports with the problems of the pastoralist groups in Ethiopia which are facing a government policy forcing them to settle and to leave their traditional lands,13 as well as the concerns of the Basque community representatives in France who, despite the community’s desire to maintain and preserve the Basque language, notice a serious decline in the number of Basque speakers as the result of the non-official status of this language.14 The four areas of concern provide the IE only with very general guidance as regards the content of her work. Probably for that reason, and in order to contain ‘the breadth of work that demands attention with respect to minority issues’, the IE has subsequently formulated the following three ‘strategic objectives’.15 12

13 14 15

Except for the joint the country mission report on the Dominican Republic whose emphasis is particularly on racial discrimination and citizenship issues. This report was jointly written by the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance and by the IE on minority issues. A/HRC/7/19/Add.5, A/HRC/7/23/Add.3, 18 March 2008. A/HRC/4/9/Add.3, 28 February 2007, para 57. A/HRC/7/23/Add.2, 4 March 2008, para 23. E/CN.4/2006/74, 6 January 2006, para 62; .

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(a) to increase the focus on minority communities in the context of poverty alleviation and development; (b) to increase the understanding of minority issues in the context of ensuring stable societies; (c) to mainstream the consideration of minority issues within the work of the United Nations and other important multilateral forums. These objectives, or thematic priorities, are deduced from the ‘concerns that are being raised consistently within minority communities in all regions’.16 Such concerns are, for instance, the situation in immigrant States or, in the IE’s words, States ‘that have become increasingly heterogeneous within a relatively short period of time’ and where ‘important debates about language, religion, social inclusion, political participation, citizenship, poverty and identity often assume a negative tone that is not conducive to social cohesion or harmony’.17 Other concerns are communal violence and conflicts18 and the proliferation of counter-terrorism measures that violate the rights of minority communities.19 Notwithstanding the formulation of four areas of concern and three strategic objectives, the number of issues, groups and regions falling under the scope of the IE’s mandate remains vast and only seems to be growing. This makes one wonder how this relatively new UN instrument, consisting of one (understaffed) person, manages to address these fundamental issues without arbitrarily choosing the groups, countries, and issues to which she will devote attention. In the next section it will be discussed whether the practical working methods, as formulated in the mandating resolutions, provide something to hold onto in the IE’s exercise of her immense mandate.

4. Working Methods As described in the previous sections, a somewhat contradictory development is taking place in the IE’s working field. The purpose of this article in this thematic issue on differential standards in minority protection is to identify the specific focus in the work of the IE – a trim-down which it would only be natural to expect considering the ‘mission impossible’ character of the mandate. However, it appears that, so far, all described elements in the mandate and the attempts to focus the IE’s work seem to have the opposite effect and

16 17 18 19

Ibid., para 58. Ibid., para 59. Ibid., para 60. Ibid., para 61.

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contribute to the expansion of the IE’s working field. The practical working methods flowing from the mandate will inevitably influence this process. The question is whether they will function as a brake or as a catalyst. 4.1. Consultation with Governments: Willingness of States As stated in the mandate, the IE is requested to implement the Declaration on Minority Rights through ‘constructive consultation with Governments’. As described in the first report, the IE may undertake country visits to further constructive consultation, observe relevant programmes and policies, register concerns, and identify areas for cooperation.20 Since these visits can only be made at the invitation of governments, the scope of this specific working method is seriously limited. So far, the IE has visited Hungary,21 Ethiopia,22 France,23 the Dominican Republic,24 Guyana,25 and Greece.26 The global spread of states inviting the IE is incomplete as the Asian region is conspicuously absent. This, however, does not mean that the IE is neglecting this region: for instance, she participated in and contributed to the 1st Regional Workshop on Minority Issues in Southeast Asia which took place in Bangkok, Thailand, from 21 to 23 January 2008.27 As follows from the first report, another way for the IE to enter into constructive consultation with governments is by sending communications to States ‘regarding specific situations and issues relevant to her mandate that have been brought to her attention, with a view to verifying information, to establishing facts, to seeking additional information, and to raising issues of concern with Governments and establishing constructive dialogue’.28 But here too, the willingness of states to respond to such communications and to cooperate with the IE is decisive and forms a limitation to her working field. 4.2. Best Practices and Technical Cooperation: at the Request of Governments Under the second point of her mandate, the IE is required to identify best practices and possibilities for technical cooperation with the OHCHR.

20 21 22 23 24 25 26 27 28

Ibid., para 35. A/HRC/4/9/Add.2, 4 January 2007. A/HRC/4/9/Add.3, 28 February 2007. A/HRC/7/23/Add.2, 4 March 2008. A/HRC/7/19/Add.5 and A/HRC/7/23/Add.3, 18 March 2008. A/HRC/10/11/Add.2, 27 February 2009. A/HRC/10/11/Add.3, 18 February 2009. See for the report of this workshop: . A/HRC/4/9, 2 February 2007, para 1 and E/CN.4/2006/74, 6 January 2006, para 34.

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It follows from the second report, that the IE has begun focusing on three priority areas of work: policing and maintenance of security in multi-ethnic societies; the arbitrary denial or deprivation of citizenship to exclude certain minorities from due benefits or reasonable participation; and equal access to quality education and other education-related issues, including access to education in minority languages.29 It should be underlined, however, that the focus on these three areas is only a – broad – thematic focus, not a geographical one. A recurring theme in the IE’s work is that violations of minority rights occur in all regions in the world;30 a development which gives global relevance to the IE’s work. The task of identifying best practices indicates that the IE should have a positive and optimistic attitude: from among all of these complex and fundamental problems relating to minorities and indigenous peoples, the IE is looking to select cases whose positive solutions could be applied to similar cases elsewhere A limitation of the IE’s responsibility lies in the requirement that the identification of possibilities for technical cooperation with the OHCHR can only take place ‘at the request of Governments’.31 A likely result of this requirement is either that governments with a clean slate will request such cooperation to solve their – probably minor – minority issues, or that the IE will be contacted by governments who are no longer able to deal with a specific internal minority issue on their own. 4.3. Cooperation with Other UN Bodies: Avoiding Duplication a Source of Inspiration? The mandate requests the IE ‘to cooperate closely, while avoiding duplication, with existing relevant United Nation bodies, mandates, mechanisms as well as regional organizations’.32 In her first report, the IE welcomes the opportunity to collaborate with existing UN bodies and mechanisms and points out that she also intends to cooperate with regional organizations such as the OSCE High Commissioner on National Minorities and the Advisory Committee under the Framework Convention for the Protection of National Minorities at the Council of Europe. She will also consult with other mechanisms including those of the African Union and those of the Organization of

29 30

31 32

A/HRC/4/9, 2 February 2007, para 14. On education, see e.g., A/HRC/10/11/Add.1, 5 March 2009, para 2; on deprivation of citizenship, see e.g., A/HRC/7/23, 28 February 2008, paras 13 ff, especially, para 49; on policing see e.g., A/HRC/10/38, Add. 1, 27 February 2009, paras 2 ff. Commission on Human Rights Res. 2005/79, 21 April 2005, para 6b. Ibid., para 6d.

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American States.33 The IE acknowledges that many existing structures will have a great deal to contribute to her work. At the same time she ‘realizes that her mandate will play a unique function among these groups and will not duplicate their work’.34 In order to avoid duplication, the IE needs to consult regularly with UN agencies and bodies, including the UNHCR and the UNDP. Therefore, for instance, the inter-agency group on minorities was consolidated in 2007 under the auspices of the OHCHR Indigenous Peoples and Minorities Unit and the IE.35 Another way for the IE to avoid duplication is to refer to the views and results of other bodies and mechanisms and to combine them with the perspective of her own mandate. In this way, she creates an endless source of crosscutting issues which ‘provide a unique and otherwise overlooked consideration of minority issues, ensuring that her work brings added value separate and distinct from the work of other United Nations mandate-holders and bodies’.36 For instance, in the area of poverty alleviation – the first strategic objective37 – she has regularly consulted and collaborated with the UNDP. This has resulted in a report providing an overview and recommendations concerning the impact of strategies used to achieve the Millennium Development Goals (MDG) and to reduce poverty in marginalized minority groups.38 This perspective has remained unaddressed in many states as conventional poverty analyses ‘focus on individual or household levels rather than groups and on material measurements of poverty rather than the social dimension’.39 An example of the second strategic objective – increasing the understanding of minority issues in the context of ensuring stable societies40 – is the IE’s cooperation with the new Special Rapporteur on the promotion and protection of human rights while countering terrorism.41 The IE has stressed that counter-terrorism measures ‘should be implemented only in full consideration of minority rights’.42 33 34 35 36 37 38

39 40 41 42

E/CN.4/2006/74, 6 January 2006, paras 45 and 54. Ibid., paras 45 and 46. A/HRC/7/23, 28 February 2008, para 6. E/CN.4/2006/74, 6 January 2006, para 63. Ibid., paras 45 and 62. A/HRC/7/23, 28 February 2008, para 7. See also the report Achieving the Millenium Development Goals (MDGS) for Minorities: a review of the MDG Country Reports and Poverty Reduction Strategies, A/HRC/4/9/Add.1. A/HRC/7/23, 28 February 2008, para 39. E/CN.4/2006/74, 6 January 2006, para 62. Ibid., para 61. Ibid. Also see, GA res. 61/171, 1 March 2007, para 5.

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Another example is her joint mission to the Dominican Republic together with the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, where the experts found that ‘there is a profound and entrenched problem of racism and discrimination in Dominican society, generally affecting blacks and particularly such groups as black Dominicans, Dominicans of Haitian descent and Haitians’.43 Through constant consultation and cooperation with other UN bodies and mechanisms, many crosscutting issues can be addressed. This development fills the gaps between the existing UN bodies and mechanisms and contributes to the mainstreaming of minority issues within the work of the United Nations – an aim formulated in the third strategic objective.44 Remarkably, however, avoiding duplication turns out to be a source of inspiration: cooperation with other UN bodies appears to enlarge the IE’s working field as new crosscutting issues are encountered. 4.4. Guidance of the Forum on Minority Issues As follows from the first mandate, the Working Group on Minorities was intended to be the IE’s main ‘sparring partner’ – a new role which required some sacrifices from the Working Group. In Resolution 2005/79, together with the adoption of the IE’s mandate, the Commission on Human Rights curtailed the mandate of the Working Group on Minorities. Henceforth, it would meet for three days per year during the session of the Sub-commission, rather than five, and it would focus ‘on interactive dialogue with relevant nongovernmental organizations and on conceptual support of, and dialogue with, the IE, who shall participate as observer’.45 The IE supported the Working Group and noted ‘the Working Group’s unique functions, including important conceptual development work and the provision of access for minorities themselves to attend sessions and make their voice heard within the United Nations’. Moreover, the strong potential for constructive collaboration was demonstrated, and the issue of policing, security and criminal justice in multi-ethnic societies was identified amongst areas of future joint initiative.46 Notwithstanding the IE’s positive opinion of the Working Group,47 it ceased to exist in 2006 and was replaced by the Forum on Minority Issues in 2008. According to

43

44 45 46 47

A/HRC/7/19/Add.5, A/HRC/7/23/Add.3, 18 March 2008, summary and, for references to the CERD periodic report 2007, see para 8. E/CN.4/2006/74, 6 January 2006, paras 45 and 62. Ibid., para 15. A/HRC/4/9, 2 February 2007, para 8. A/HRC/Sub.1/58/19, 24 August 2006.

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Human Rights Council resolution 6/15, ‘the forum will provide a platform for promoting dialogue and cooperation on issues pertaining to persons belonging to minorities, which will provide thematic contributions and expertise to the work of the independent expert’. Furthermore, the forum ‘will identify and analyse best practices, challenges, opportunities and initiatives for the further implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities’. The forum will meet for two days annually in Geneva and its work will be guided and prepared by the IE.48 The thematic focus of both the 1st session of the Forum and the IE’s 2009 report was ‘minorities and the right to education’.49 In the report, the IE’s holistic perspective50 on minority issues becomes apparent. She explains that:51 ‘[m]inorities in various regions of the world suffer disproportionately from unequal or restricted access to quality education and inappropriate education strategies. Lack of education leads to denial of civil and political rights, including rights to freedom of movement and freedom of expression, and limits participation in the cultural, social and economic life of the State and in public affairs, such as in the exercise of voting rights. Lack of education also limits the enjoyment of economic, social and cultural rights, including rights to employment, health, housing and an adequate standard of living. Lack of education results in reticence to engage with law enforcement authorities, inhibiting access to remedies when human rights are violated.’

She also underlines another crosscutting link:52 ‘Women and girls members of minority communities suffer disproportionately from lack of access to education and from high illiteracy levels. Lack of education represents an absolute barrier to their progress and empowerment.’ It is too early to assess the cooperation of the IE with the Forum on Minority Issues. Nevertheless, it is becoming clear that such cooperation does anything but interfere with the IE’s holistic approach of minority issues. Moreover, the meetings of the Forum will bring many new crosscutting minority issues to the attention of the IE and will expand her working field. 48

49

50 51 52

The inaugural session was held on 15 and 16 December 2008 in Geneva. A/HRC/FMI/2008/1, 5 December 2008 (agenda). A/HRC/10/11/Add.1, 5 March 2009. This document also contains the Recommendations of the first sessions of the Forum on Minority Issues of 15 and 16 December 2008. E/CN.4/2006/74, 6 January 2006, p. 2 (summary). A/HRC/10/11/Add.1, 5 March 2009, para 2. Ibid., para 3.

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4.5. Cooperation with NGOs: Indispensable Information The IE takes into account the views of non-governmental organizations (NGO).53 As she stated in her first report, she ‘realizes that NGOs are often uniquely positioned to provide timely information on situations involving minorities’54 and ‘[a] counterflow of information relating to minority issues and the situations of minorities, including legislation relating to minorities, will be encouraged to her office and other relevant bodies’.55 The involvement of NGOs in her work does certainly broaden the flow of information. Compared to the breadth of the IE’s ‘four areas of concern’ the information provided by NGOs is very concrete and focused on specific cases or issues. Such information is indispensable to all of the IE’s activities – preparating and reporting on the country missions, deciding on issuing communications to states, searching for best practices, identifying the gaps between the mandates of her colleagues; cooperating with the Forum on Minority Issues; and formulating new strategic objectives. The obvious conclusion is that cooperation with NGOs meshes well with the IE’s holistic approach and contributes to her growing working field. 4.6. Conclusion Do the practical working methods formulated in the mandating resolutions provide something to hold onto in the IE’s exercise of her immense mandate?56 This overview of the IE’s toolkit shows, firstly, that she can count on several sources of information – Sates, her colleagues, NGOs, and minorities themselves. Secondly, she disposes of several means of cooperation – country missions, technical cooperation, and communications to States; consultations, common country missions, common research and reports with her colleagues; information from NGOs; and identifying best practices of minorities, NGOs and States. Thirdly, there are only two limiting factors: the consent of states and their willingness to cooperate with the IE. All other working methods of the IE function as a catalyst and support her flexibility and adaptability to different questions and requirements flowing from the content of her mandate and, in this way, contribute to the expansion of the amount of issues she is working on.

53 54 55 56

Commission on Human Rights Res. 2005/79, 21 April 2005, para 6e. E/CN.4/2006/74, 6 January 2006, para 55. Ibid., para 56. See the last sentence of Section 3.

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The following paragraph will analyze whether the remaining part of the mandate – the request to the IE ‘to apply a gender perspective in her work’57 – leads to a focus or limitation of her work.

5. Multiple Forms of Discrimination 5.1. The definition The constant flow of information concerning minority rights violations stemming from NGOs and other sources seems to necessitate a choice as regards the groups the IE will focus on. As follows from her mandate, she will particularly devote attention to minority women. Another crosscutting issue in her work concerns minority children. The legal basis for this latter specific attention is Article 30 of the CRC that lays down the rights of children belonging to ethnic, religious, or linguistic minorities. First of all, the IE had to deal with the question how to understand the term ‘minorities’. Elaborating on the insights into and the work on this question of other bodies and mechanisms,58 the IE soon made it clear that she ‘supports the view that determination of which groups constitute minorities does not lie with the State, but is dependent on a range of both objective and subjective criteria, in accordance with the principles of international law’.59 With regard to the numerical criterion, the IE has noted that she will ‘not be guided by an exacting assessment of the relative numerical size of a population group compared to that of the larger society. Each situation will be different, and she will consider the specifics of the situation on a case-by-case basis. The independent expert will focus her work only on non-dominant minority groups’.60 Furthermore, in line with the Human Rights Committee, the IE finds that ‘duration of residence or domicile within a State does not limit protection under international standards relating to minorities’.61 Finally, the IE has stated

57

58

59 60 61

Commission on Human Rights Res. 2005/79, 21 April 2005, para 6c; A/HRC/7/L.17, 20 March 2008, para 3c. The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (General Assembly resolution 47/135) and the commentary of the Working Group on Minorities to the Declaration (E/CN.4/Sub.2/AC.5/2005/2). Her work also encompasses the persons and groups protected under the International Convention on the Elimination of All Forms of Racial Discrimination from discrimination based on race, colour, descent (caste), national or ethnic origin, citizen or non-citizen (General Assembly resolution 2106 (XX) ). E/CN.4/2006/74, 6 January 2006, para 23. Ibid., para 24. Ibid., para 25.

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that she also takes note of the collective nature of minority rights.62 This remarkable statement, implicitly enlarging the scope of the her work to rights concerning indigenous peoples, was motivated as follows:63 ‘This holds importance for the promotion and protection of minority identity and visibility, for the informed collective participation of these groups in decisions that affect their rights and resources, and for securing collective claims to linguistically and culturally appropriate education, land and other shared assets. While the Declaration on the Rights of Minorities examines rights that may be claimed by individual members of minority communities, those claims will often require the State to ensure the existence or identity of the group as a whole.’

In sum, the focus of the IE’s work is ‘on national, ethnic, religious, linguistic and cultural groups’ that ‘have faced long-term discrimination’ and ‘whose generally non-dominant positions within their societies demand protection to allow them to exercise their rights to the fullest’.64 Moreover, as already mentioned, the IE’s focus on gender issues has been laid down in the mandate.65 Linked to this part of her mandate, the IE has made it clear that she also intends to consider multiple forms of discrimination often experienced by individuals within ethnic, religious, linguistic, or national minority groups because of other factors including gender, gender expression, gender identity, sexual orientation, disability, age, or health status.66 The IE clearly does not take a restrictive approach to the question of who constitutes a minority. She has broadened and extended the definition as far as possible and has brought many groups under the scope of her work – often groups and persons that, before, did not fall under the mandates or attention of any other minority or human rights mechanism. This is an example of how the IE, right from the beginning, has started to fill the gaps left between the mandates of her colleagues. However, far from limiting the IE’s work field, filling or bridging the deep gaps between her colleagues’ mandates significantly broadens it. 5.2. Women and Gender Issues Although it is a commendable aim to consider all of the above-mentioned groups, it undeniably remains a very large number for one IE to focus on. This

62 63 64 65

66

Ibid., para 27. Ibid., para 27. Ibid., para 29; A/HRC/4/9, 2 February 2007, para 21. Commission on Human Rights Res. 2005/79, 21 April 2005, para. 6c; A/HRC/7/L.17, 20 March 2008, para 3c. E/CN.4/2006/74, 6 January 2006, para 28.

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section will take a closer look at the IE’s work in order to find out how she deals with this reality. As said, the IE is mandated to apply a gender perspective in her work. By referring to the CERD’s general recommendation XXV, she explains the relevance of this focus:67 ‘There are circumstances in which racial discrimination only or primarily affects women, or affects women in a different way, or to a different degree than men. Such racial discrimination will often escape detection if there is no explicit recognition or acknowledgement of the different life experiences of women and men, in areas of both public and private life.’

A logical and inevitable next step is to devote attention to women and girls from disadvantaged minority groups experiencing multiple and intersectional forms of discrimination, i.e., discrimination based on both their minority status and their gender. According to the IE, ‘such multidimensional discrimination may make them particularly vulnerable to violations and denial of their rights in both public and private life, including violence and sexual assault’.68 In practice, the attention of the IE has resulted, inter alia, in the organization of forums for minority women to hear their issues and concerns.69 For instance, during her mission to Hungary, she held a forum for Roma women,70 and in Ethiopia she devoted attention to the particular situation of minority women and held consultations with women from groups including the Anuak and Nuer communities in the Gambella region.71 Another forum addressing problems faced by minority women was held in France.72 In her report on the Dominican Republic,73 she referred to the situation of multiple discrimination of black and Haitian women. In Guyana74 she also held a forum for women and in her report explicitly referred to the very difficult situation of AfroGuyanese and indigenous women in Guyana. In her mission report on Greece she pointed to the discrimination of women belonging to Roma and Muslim communities.75 This attention to women’s issues is also reflected in her mission reports and specific recommendations. In those reports the gender perspective is further 67 68 69 70 71 72 73 74 75

Ibid., para 40. Ibid., paras 41–42; A/HRC/4/9, 2 February 2007, para 9. A/HRC/4/9, 2 February 2007, paras 9–10. A/HRC/4/9/Add.2, 4 January 2007, paras 33–37. A/HRC/4/9/Add.3, 28 February 2007, paras 67–73. A/HRC/7/23/Add.2, 4 March 2008, para 38. A/HRC/7/19/Add.5, A/HRC/7/23/Add.3, 18 March 2008, para 132. A/HRC/10/11/Add.2, 27 February 2009, paras 1, 38, 54 A/HRC/10/11/Add.3, 18 February 2009, paras 73–75.

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connected to other issues, such as poverty, healthcare, and education. For instance, in her report on Achieving the Millennium Goals (MDGS) for minorities: A review of MDG Country Reports and Poverty Reduction Strategies (March 2007), the IE refers to intersectional discrimination in the context of MDG 3 (‘Eliminate gender disparity in primary and secondary education preferably by 2005 and in all levels of education no later than 2015’):76 ‘Eliminating gender disparity in access to education will be much more difficult for minority girls and women than for others. This is because of ‘intersectional discrimination’, or the compound impact of discrimination based on gender and discrimination based on ethnic, religious or linguistic identity. Only seven of the MDG reports give any attention to the situation of minority girls/women under Goal 3. This is indicative of the high levels of ‘invisibility’ and marginalization of minority girls and women.’

She also points out the link with poverty:77 ‘Opportunities for minority girls to access education are also closely linked to higher poverty rates of minorities, with minority girl children being more likely to remain at home to support the family’s welfare.’

Additionally, she identifies a positive practice in the Philippines:78 ‘The government also expanded alternative non-formal education systems for indigenous communities such as Magbasa Kita (Let Us Read) that teaches women and girls and parents of working children to read. School-based childminding centres were also set up in the cultural communities so older children, mostly girls of school age who take care of younger siblings, can attend classes despite baby-sitting chores.’

And, she refines her perspective on the basis of a specific case:79 ‘[G]ender inequality does not always relate to women. In Brazil, there are small inequalities in access to primary school by gender or race (3% difference by race) but it is black or mulatto males who are least likely to access secondary and higher education: ‘although women are present in higher education numbers regardless of race, among the black and mulatto population the ratio increases: it leaps to 125.9%, reaching 143.3% in higher education.’ The MDG Report attributes this to ‘the even more increased dropout of black and mulatto men to enter the labour market, and to the phenomenon of discrimination, which affects blacks and mulattos of both genders and ends up moving them away from school’.’

76 77 78 79

A/HRC/4/9/Add.1, 2 March 2007, para 55. Ibid. Ibid., paras 56 and 111. Ibid., para 58.

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Finally, she concludes and recommends in her reports of February and March 2007:80 ‘[T]he situation of minority women demands particular attention. The intersection of discrimination on the basis of gender and minority identity should be considered systematically in the reform of policies aimed at poverty elimination. It is well accepted that women from marginalized populations are the overwhelming number of those living in poverty worldwide.’ ‘Women belonging to minority groups remain invisible in poverty reduction effort. The compound effects or intersectional discrimination on the basis of gender and a national, ethnic, religious or linguistic identity means minority women continue to be among the most excluded.’

The example concerning MDG 3 shows that the broad and general content of the IE’s mandate enables her to address minority issues comprehensively. It is also clear that the IE’s ‘toolkit’, consisting of various sources of information, prevents superficiality by permitting the IE to refine and deepen her knowledge of globally interlinked issues affecting minorities. As with other elements of the mandate, a holistic perspective on minorities, linking minorities all over the world with issues such as poverty, exclusion, education, unemployment, and health, yields a range of new and relevant topics. In fact, the focus on multiple forms of discrimination or, especially, on gender issues appears to have the same effect: instead of focusing or narrowing down the IE’s working field, this focus appears to open up many interlinked and crosscutting minority issues which previously remained unnoticed or unaddressed.

6. Conclusions A first glance at the content and working methods mentioned in the IE’s mandating resolutions, might paint a picture of an IE who is facing a ‘mission impossible’ as regards the core content of the mandate, but who is, nevertheless, optimistically looking for best practices within the formulated four areas of concern and the three strategic objectives; who is waiting for states to decide to cooperate; who is manoeuvring her work in the gaps left by her colleagues in the field of minority protection; and who is confronted with a frustrating flow of information from NGOs reporting the most serious violations of rights of minorities and indigenous peoples.

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A/HRC/4/9, 2 February 2007, para 103 and A/HRC/4/9/Add.1, 2 March 2007, para 116 respectively.

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Fortunately, analysis of the IE’s work and mandate shows this description to be a caricature – and in many respects the opposite turns out to be true. The IE’s working field is expanding and growing, as is the amount of relevant issues, groups, and links. The limitation imposed by her colleagues’ mandates (to avoid overlap) turns out to be the IE’s strength and even seems to be a source of inspiration. By standing on the shoulders of her colleagues and incorporating their results and work in her own perspective, the IE has included an endless number of interlinked and crosscutting issues – especially those affecting minorities, such as poverty, education, health, and violence, but which have never before been thoroughly addressed from this perspective– in her field of attention and work. The same can be said with regard to the groups she is working with. By stretching the conventional minority definition to its maximum and by combining it with two other groups she is mandated for (women and children), she has created an almost global working field. The motor behind this expansion appears to be the ‘toolkit’ of working methods which provides the IE with several sources of information and means of cooperation, which in the light of the four areas of concern and the three strategic objectives lead to a growing list of relevant crosscutting issues. The gender perspective reinforces this effect. In fact, it could well be concluded that the topic of this special volume on the existence of differential standards in minority protection does not apply to the IE’s mandate and work, as her range of activities is only growing and becoming more inclusive. The IE’s holistic approach to her mandate and, consequently, the protection of minorities and her constant concern to make her work relevant for all continents of the world appear to reduce the risk of differential standards in her work. However, the conclusion that the different elements of the mandate do anything but limit or focus the IE’s working field does not answer the question how the IE manages to have control over this huge and still growing working field. The answer can probably be found in two factors: the structuring effect of the mandate and the IE’s personality. The structuring and supporting effect of the mandate follows, first, from the Declaration of Minority Rights and other legal documents containing minority rights, which constitute the broad legal basis. Second, the very broad four areas of concern provide the headings, or ‘files’ under which all different (crosscutting) minority groups and issues can be grouped. Third, urgent global issues concerning minorities can be grouped under and addressed as strategic objectives. Finally, the IE’s working methods support her by providing her with the information, flexibility and adaptability she needs to react, at different levels, to different minority-related questions and problems which constantly flow from legal, political, economical, or environmental developments in the world. Moreover,

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this flexibility and adaptability help to prevent a situation where the IE would be forced to prioritise specific groups or issues and to apply differential standards. However, the final assessments and decisions concerning all cases, questions and issues in the expanding working field of the IE fall on the shoulders of one person. Such a daunting task requires an exceptional personality with superb diplomatic, political and strategic intuitions, a strong drive, and total dedication to the cause of relieving the plight of minorities in all regions of the world.81 The present IE has developed her mandate into a versatile tool for the international protection of minorities. However, one could wonder how long the IE will be able to continue to apply a holistic approach and to carry on with her world-wide working field without adjusted financial and human resources. The success of this relatively new minority mechanism is in the hands of states.

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Part II Old V. New Minorities and Minorities within Minorities

The Rights of ‘New’ Minorities: Scope and Restrictions Asbjørn Eide Abstract It is argued in this article that contemporary international minority rights are based on and are extensions of universal human rights which do not justify general distinctions between ‘old’ or ‘new’ minorities. Most minority rights are in principle applicable to both. Since human rights form the basis for minority rights, states must also ensure that minorities like majorities respect human rights among themselves and towards others. Earlier definitions of ‘minority’ using ‘citizenship’ or ‘traditional’ as a general criterion for the minority concept is no longer tenable. Article 27 of the ICCPR and the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities have been authoritatively interpreted to cover both ‘old’ and ‘new’ minorities, though some of the rights listed are mainly applicable to the old or traditional minorities. It is recognized, however, that there exists a different opinion holding that protection of minorities, particularly of ‘national minorities’ requires something substantially different from an extended application of human rights. This is brought out particularly in regard to the scope of application given by many State Parties to the European Framework Convention for the Protection of National Minorities, many of whom apply the rights therein only to the ‘old’ minorities. This article discusses the origin and present status of that distinction and argues that most, though not all, rights even in the Framework Convention on National Minorities correspond to rights contained in universal human rights provisions, but agrees that in some contexts states have stronger obligations towards ‘old’ and settled national minorities than those that can be derived from human rights in general.

1. Introduction It has in the past been frequently argued that only ‘traditional’ or ‘old’ minorities are entitled or should be entitled under international law to minority Kristin Henrard, Double Standards Pertaining to Minority Protection, pp. 165–194. © 2010 Koninklijke Brill NV. Printed in the Netherlands.

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rights.1 On that issue I have taken the position, both in several earlier works and in my practice both as chairman of the former United Nations working group on minorities and as member and President of the Advisory Committee on the European Framework Convention on the Protection of National Minorities, that neither de lege lata nor de lege ferenda is it tenable to make a general distinction between ‘old’ and ‘new’ minorities as holders of minority rights. By ‘a general distinction’ I mean a distinction that applies generally, throughout the law on minority rights.2 I have argued, however, and would still argue that some old or traditional minorities are in some contexts entitled to stronger or more enhanced minority rights than most ‘new’ minorities normally can claim, but that depends on the particular context and is not a ground for making a general distinction between two main categories of minorities. There exists a contrary view that the concept of ‘minority’, and particularly ‘national minority’ has an established meaning which predates international human rights and which by definition excludes new minorities, which limits the range of minorities to groups of persons that are citizens of the country and have lived there traditionally. This is reflected in the well-known definition by Francesco Capotorti in his monumental study on the rights of minorities,3 and in much of the later discourse. Of particular interest is Recommendation 1201 (1993) of the Parliamentary Assembly of the Council of Europe (PACE), where the Assembly asked the Committee of Ministers to

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The clearest example is found in Recommendation 1201 (1993) of the Parliamentary Assembly of the Council of Europe (PACE), where the Assembly asked the Committee of Ministers to draw up an additional protocol on the rights of national minorities to the European Convention on Human Rights (which the Committee never did; in its place the Framework Convention was prepared and adopted in 1994). In the recommendation from PACE, a definition of minorities was included where one of the requirements was that the group ‘maintain long-standing, firm and lasting ties’ with the state concerned. While, as we shall see below, the European Framework Convention on the Rights of National Minorities does not contain any definition, most State Parties have limited its application to ‘old’ or ‘traditional’ minorities. When deciding to ratify a relevant international convention on the subject, states have a certain freedom to limit the scope of its application of the instrument concerned to particular minorities. This will then be an explicit or implicit reservation. The limitation can also manifest itself by the listing of minority groups on which the state reports under the European Framework Convention. The Capotorti definition of minorities read: A group numerically smaller to the rest of the population of the 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, traditions, religion or language. In Capotorti, Francesco, Study on the rights of persons belonging to Ethnic, Religious and Linguistic Minorities, New York: United Nations Publications 1991.

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draw up an additional protocol on the rights of national minorities to the European Convention on Human Rights (which the Committee never did; in its place the Framework Convention was prepared and adopted in 1994). In the recommendation from PACE, a definition of minorities was included where one of the requirements was that the group ‘maintain long-standing, firm and lasting ties’ with the state concerned. While, as we shall see below, the European Framework Convention on the Rights of National Minorities does not contain any definition, most State Parties to it have limited its application to ‘old’ or ‘traditional’ minorities. In order to elaborate my position on this and reflect on the opposing views, it may be useful to examine the evolution of the purposes underlying minority rights in international law (section 2 below), the discourse and positions on the definition of minorities (section 4 ) and finally an inspection of the content of minority rights in order to determine whether and to which extent there is anything in them that are less appropriate for new minorities (section 4) before the conclusions are drawn.

2. Purposes of minority protection and their relevance for ‘new’ minorities The evolution of minority rights in international law has gone through several stages. In her study in 1997, Athanasisa S. Åkermark4 argued that there are basically three justifications: (1) peace and security, (2) human dignity, (3) culture. Taking a long historical perspective there is considerable evidence for that view. I have argued, however, that the emphasis has changed over time, and the priorities are now somewhat different. This has also significance for the discussion of the rights of ‘old’ versus ‘new’ minorities. The main purpose now is to strengthen the protection of universal human rights also for persons belonging to minorities. Protection of minorities as part of human rights is built on two principles, the prohibition of discrimination and measures to protect and promote their separate identity.5 The relevant international instrument deal in part with obligations to prevent discrimination and to take measures to ensure full and effective equality, and in part to promote conditions for diversity and to abstain from assimilationist policies, while recognising the justification of the state to promote integration in society. 4

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Athanasia S., Åkermark: Justifications of Minorities in International Law, Uppsala: Justus förlag 1997. On this point see also Henrard, Kristin, Devising an Adequate System of Minority Protection, The Hague/Boston/London: Martinus Nijhoff Publishers 2000, p. 8.

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The initial concerns regarding minority protection in state practice was expressed in peace treaties dealing with the right of religious minorities to maintain their religion in spite of border change or conquests resulting from the religions wars during the 17th–18th century. It represented a growing recognition that it was harmful and unjust to force a group of people to change their religion simply because their territory had been taken over by another monarch or emperor.6 This was long before human rights entered international law, though it was linked to a growing acceptance of the principle of freedom of religion. The next stage in minority issues arose as an outcome of the peace settlements after World War I. Among the main origins of that war were the struggles in Central and Eastern Europe for national self-determination against established empires (The Ottoman Empire, the Habsburg Empire, and the German Reich). The term ‘national’ self-determination had at that time a clear ethno-nationalist understanding, implying that the nation was defined by its language or culture or history, and that each ‘nation’ understood in these terms should have a right to self-determination. The minority protection regimes after World War I served as a compromise between the acceptance of the principle of national self-determination and the fact that it was impossible to draw the borders of countries in ways which ensured that only those belonging to the dominant ethnic nation lived there. Consequently there was a recognised need of protection of those groups who belonged to another ethno-nation but who found themselves on the ‘wrong’ side of the border. These groups needed protection both against exclusion or even genocide, and also against assimilation and ‘ethnocide’. The justification was therefore in part to assist them in maintaining their identity, and partly to avoid kin-state intervention in the affairs of their host state. In both of the above-mentioned context, the concern was with protection of long-established, settled groups that were now faced with a new sovereign authority due to border change or the emergence of a new, independent country. Quite understandably, the focus was therefore on the protection of those settled or historical groups that were now in a minority situation. I submit that the frequent focus on ‘old’ or ‘historical’ minorities to a large extent is a legacy of the earlier approaches to minority questions. But the context of minority issues changed after World War II. The most fundamental element in the international order sought to be established by

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For details, see Asbjørn Eide, ‘The Framework Convention in Historical and Global Perspective’, p. 29 with references in: Marc Weller (ed.), The Rights of Minorities, Oxford: Oxford University Press 2005.

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the United Nations was the normative system of human rights. The very legitimacy of states changed. The Universal Declaration of Human Rights introduced the principle of equality and non-discrimination on an individual basis, irrespective of the racial or ethnic, linguistic or cultural background of each individual. Since universal human rights are intended to extend to everyone, a need for specific minority rights was not immediately seen. When the foundation of modern international human rights was laid with the adoption of the Universal Declaration of Human Rights in 1948, the majority of the members of the United Nations were in fact opposed to the inclusion of special provisions on minority protection. One of the main arguments was that there was no longer a need for such provisions: If ‘ordinary’ human rights of everyone were respected, the needs of the minorities would also be respected.7 There is considerable truth in that argument: properly implemented, ‘ordinary’ human rights – those contained in the International Bill of Human Rights and the related conventions – would cover many, but not all the needs of the minorities even if no specific minority convention was adopted. The rights to civil, political, economic, social and cultural rights, which form the pillars of the modern human rights edifice, would provide much of the guarantees required. This is particularly true when we take into account the basic principle of non-discrimination and substantive equality in the enjoyment of human rights, which is bedrock in the human rights system. Practice has shown, however, that there are some additional guarantees needed, and it is in regard to these that the question of their applicability to new minorities can raise questions. Which these are will be examined further below, following a review of the definition debate. That modern minority rights are closely related to general human rights comes out also in the monitoring of other human rights conventions than those dealing directly with minority rights, but where minority issues often come up. This has been clearly shown in the several contributions to a recent book on synergies in minority protection.8 One implication of the recognition that minority rights have their foundation in general human rights is that majorities and minorities respect human rights both in their relations to each other and within the groups concerned. This is a matter of increasing importance in Europe since some of the new groups come from areas where the 7

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I have analyzed in some length the positions on this matter during the drafting. See my chapter ‘The non-inclusion of minority rights: Resolution 217C (III)’, in: Alfredsson and Eide, The Universal Declaration of Human Rights- A Common Standard of Achievement, Leiden: Martinus Nijhoff publisher 2001, p. 701–723. Kristin Henrard and Robert Dunbar (eds.) Synergies in Minority Protection: European and International Law Perspectives, Cambridge: Cambridge University Press 2009.

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human rights culture is less engraved, where there is more discrimination of women and other practices that are no longer tolerated in some of the European countries. When a situation of coexistence emerges between groups with different cultural traditions, universal human rights must serve as the framework for the integrating processes in that society. The demand for minority protection should not be an excuse for condoning minority practices that violate human rights any more than preservation of majority cultures be a justification for majority practices that are incompatible with universal human rights.

3. On the definitional debate 3.1. The non-existence of a legal definition of minorities There has been a long and inconclusive discussion on how to define minorities. The Capotorti definition and that of the PACE are quoted above, but neither of these has been made use of. The relevant international instruments do not contain any definition beyond the mere words ‘ethnic, religious and linguistic’ minorities in ICCPR Article 27, ‘national or ethnic, religious and linguistic minorities’ in the UN Declaration of 1992, and simply ‘national minorities’ in the Council of Europe’s Framework Convention of 1994. In the Commentary to the United Nations Declaration on the Rights of National or Ethnic, Religious and Linguistic Minorities, it is pointed out that the Declaration is inspired by article 27 of the International Covenant on Civil and Political Rights and that it may be assumed that the Declaration has at least as wide a scope as that article. In conformity with article 2 of that Covenant, States parties are under an obligation to respect and ensure the application of article 27 to everyone within its territory and under its jurisdiction, whether the persons concerned are citizens of the country or not. This is also the view expressed by the Human Rights Committee in paragraphs 5.1 and 5.2 of its general comment No. 23 (fiftieth session, 1994). Persons who are not (yet) citizens of the country in which they reside can form part of or belong to a minority in that country. While citizenship as such should not be a distinguishing criterion that excludes some persons or groups from enjoying minority rights under the Declaration, other factors can be relevant in distinguishing between the rights that can be demanded by different minorities. Those who live compactly together in a part of the State territory may be entitled to rights regarding the use of language, and street and place names which are different from those who are dispersed, and may in some circumstances be entitled to some kind

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of autonomy. Those who have been established for a long time on the territory may have stronger rights than those who have recently arrived. The Commentary concludes on this point by stating that the best approach appears to be to avoid making an absolute distinction between ‘new’ and ‘old’ minorities by excluding the former and including the latter, but to recognize that in the application of the Declaration the ‘old’ minorities have stronger entitlements than the ‘new’. Following extensive discussions, the Council of Europe’s Venice Commission presented a report on non-citizens and minority rights in 2006.9 It argued that attention should be shifted from the definition issue to the need for an unimpeded exercise of minority rights in practice, and that citizenship should not be regarded as an element of the definition of the term ‘minority’, but it is more appropriate for the States to regard it as a condition of access to certain minority rights. The universal character of human rights, of which minority rights form part and parcel, does not exclude the legitimate existence of certain conditions placed on the access to specific minority rights, and in respect of some of those rights, citizenship may be a legitimate criterion. The Venice Commission therefore encouraged States to consider the possibility of extending, on an article-by-article basis, the scope of protection of the rights and facilities concerned to non-citizens. The opinion by the Venice Commission is fully in line with the practice of the Advisory Committee on the Framework Convention. It can therefore be concluded that citizenship is no longer perceived as a general criterion for minority rights. This does not necessarily prevent states, in their exercise of their margin of discretion when ratifying a minority treaty or reporting on its implementation, to reserve its application to groups whose members are citizens of the country. In my opinion, a legal definition of minorities is neither necessary nor useful. A general definition would easily lead to the assumption that all minorities falling within that definition would be entitled to all minority rights, and that all groups falling outside are entitled to none of the minority rights. Both of these assumptions are wrong, as will be shown below. It can be argued in favour of having a definition that it leaves to the states, more or less arbitrarily, to decide which group they want to protect. Avoiding a definition, on the other hand, makes it possible to have a much more practical approach, focusing on which groups should enjoy which minority rights, since the needs and possibilities will differ widely depending on contexts that cannot be sorted out by a rigid definition.

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Venice Commission, Report on non-citizens and minority rights, CDL-AD(2007)001.

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The drawn-out debate on a definition of ‘minority’ has overshadowed the fact that the major problem facing many minorities is the lack of respect for and, particularly, the weak or sometimes non-existing protection of their universal human rights, particularly when they want to exercise it in community with others. Since in principle everyone is entitled to universal human rights, also when exercised in community with others, there is no need for a strict and narrow definition of the concept of minorities. When the minority rights consist in claims on the State to adopt special measures to ensure appropriate conditions for the preservation and development of the group identity, there are genuine justifications for the state to differentiate between groups based on the particular contexts of the minority situation concerned, but this varies depending on which aspects of the right is under consideration. As will be shown below, there are contexts where ‘old’ minorities have a stronger claim on enhanced rights than ‘new’ minorities do. Roberta Medda-Windischer has in her recent important study on old and new minorities10 proposed a useful and broad description of the category of persons that should be lumped together under the term ‘minorities’. She suggests that minorities should be understood in the following way: ‘A minority is any group of persons (i) resident within a sovereign state on a temporary or permanent basis, (ii) smaller in number than the rest of the population of that state or of a region of that state, (iii) whose members share common characteristics of an ethnic, cultural, religious or linguistic nature that distinguish them from the ret of the population and (iv) which manifest, even only implicitly, the desire to be treated as a distinct group.’

This description is satisfactory for the purpose of this article. There is no group that falls outside and yet can reasonably be expected to have claims that can be associated with minority rights, particularly the right to preserve their common identity. This description is sufficiently open and helps to separate out issues that do not belong in the present context, such as sexual minorities. Their concern is to be protected from discrimination, but do not seek to be treated as a distinct group. Aliens as such, as well as migrant workers as such, clearly fall outside the description given above of minorities and should do so. While migrant workers may have many common problems such as frequent discrimination in employment, they do not have a desire to remain treated as a distinct and common group. Some of them may form part of particular ethnic, religious or linguistic groups and should as such enjoy protection for their

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Roberta Medda-Windischer, Old and new minorities: Reconciling diversity and cohesion, Baden-Bade: EURAC research/Nomos publishers 2009, p. 63.

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minority rights, but that is not a function of their status as migrant worker but as member of a particular minority group. A word of caution is required in relation to the term ‘member’ of a minority group in the definition just quoted. Automatic ‘membership’ should not be assumed, and was clearly not intended by the author. Not all persons originating from a given ethnic, linguistic or religious group who enter another country necessarily want, or manifest, the desire to be part of a distinct group. There is in practice great variations concerning the interest of different immigrant groups to manifest or not manifest their particular identity. There can be considerable tension within a group of ethnically defined immigrants between those who want to be treated as belonging to that ethnicity, and those who want the speediest possible integration, even full but voluntary assimilation in the host society in order to achieve as quickly as possible full integration in its social, economic and cultural life of the society they have entered. This may also generate some internal tensions within the group because some of them may want to ensure solidarity and a common platform within the group and others resist it. In regard to such internal tensions, the receiving state should be neutral. This also follows from the standards established in international human rights instruments. Article 3 of the United Nations Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities reads: 3.2. No disadvantage shall result for any person belonging to a minority as a consequence of the exercise or non-exercise of the rights set forth in the present Declaration The provision makes it clear that potential ‘members’ shall not be disadvantaged in any way for choosing not to belong to the minority concerned. Neither the state, nor the agencies of the minority concerned, are entitled impose a particular ethnic identity on a given person. Representatives of the minority concerned cannot subject to any disadvantage persons who on objective criteria may be held to form part of their group but who subjectively do not want to be part of it. States would be under a duty to prohibit the taking of measures by minorities to impose their particular rules on any person who does not want to be part of the minority concerned and therefore did not want to exercise her or his rights. This applies both to ‘old’ and ‘new’ minorities. While Medda-Windischer presented it as a possible general definition of minorities, I prefer to see it as a working description to delimit the topic under consideration. The drawn-out debate on a definition of ‘minority’ has overshadowed the fact that the major problem facing many minorities is the lack

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of respect for and, particularly, the weak or sometimes non-existing protection of their universal human rights. For the purpose of enjoying universal human rights in community with others, there is no need for a strict and narrow definition of the concept of minorities. The European Framework Convention for the Protection of National Minorities contains no definition of ‘national minority’. State parties therefore make their own decisions, implicitly or explicitly, regarding the scope of application they want to give to it. In practice, this is done either in connection with ratification or in the reporting process. Declarations made in the context of ratification are sometimes couched in generic terms, listing the criteria for inclusion, whereas others simply list the names of the minorities that will be covered. Some states use an open and inclusive approach to the scope of application. One example is the United Kingdom. The term ‘national minority’ is not, in the United Kingdom, a legally defined or used term. The FCNM is applied to the racial groups as defined in the Race Relations Act 1976, which defines a racial group as ‘a group of persons defined by colour, race, nationality (including citizenship) or ethnic or national origins’. There is no restriction to citizenship. Most states use the term ‘national minority’ in their legislation or practice and restrict the term to ‘traditional’ groups, which means that they must have existed in the country for a considerable length of time. Many of them do not require, however, that the individual persons belonging to those groups need to be citizens; newcomers can also be covered if they have the same language, practice the same religion or share the same culture as the traditional group in that country. States taking this approach include Norway, Sweden and some other countries. Other states have a double restriction: They include only well-established, traditional groups and exclude from coverage even those persons belonging to such groups that are not citizens of the country. The clearest example of a restrictive approach is that taken by Germany, which has insisted on its competence to define the term’ national minority’ as regards the application of the Convention to the groups in question. Only those groups of the population who meet the following five criteria are therefore by Germany considered national minorities: Their members must be German nationals. They must differ from the majority population insofar as they have their own language, culture and history; in other words, they have their own identity. They must have a wish to maintain this identity and to be traditionally resident in Germany, and they must live in their traditional settlement areas. As regards the last criterion, an exception is made only with reference to the German Sinti and Roma. This minority is protected under the Framework Convention

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although its members live – mostly as small groups – in almost all parts of Germany and do not have their own specific settlement areas. Thus there are three cumulative requirements: they must be citizens, they must live traditionally in Germany and they must do so in their traditional settlement areas, except for the Roma and Sinti (for whom, however, the two other criteria still apply they must be citizens and live traditionally in Germany, other Roma and Sinti are not protected by the Framework convention. Facing considerable differences among states regarding the scope of their application of the FCNM, the Advisory Committee on the Framework Convention (ACFC) recognized that in the absence of a definition of ‘minorities’ in the convention, governments have a margin of discretion in deciding which minorities they want to protect when ratifying the Convention, but that margin of discretion is not unlimited. Declarations by state parties at the time of ratification setting out a restrictive application of the Convention could be seen as a reservation, and could as such be held to be subject to the general law of treaties making a reservation invalid when it defeats the object and purpose of the Convention. Since FCNM Article 1 makes it clear that minority protection is part of international human rights law, there is less space for reservations than in regard to other types of treaties. This point is further strengthened by the FCNM Article 19, which says that in the application of the Convention, the parties can only make such limitations, restrictions or derogations which are provided for in international legal instruments, in particular the European Convention on Human Rights and Fundamental Freedoms. Justifiable distinctions could be made on objective and reasonable grounds. This is also built into the Framework Convention itself. The ACFC has therefore decided to combine a rather pragmatic approach to the scope of application with some basic principles. In its assessment of the state party’s application of the FCNM Article 3(1) (‘Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such’), the ACFC points out that, in the absence of a definition in the Framework Convention, the parties must examine the personal scope of application to be given to the Convention within their country. The position taken by the state party, whether in the declaration accompanying the ratification or explicitly or implicitly in its report on the implementation of the Convention, is therefore by the Committee deemed to be the outcome of that examination. Using the case of Germany as example, the ACFC in its first opinion on that country took account of the declaration made by Germany when signing and subsequently renewed at ratification, which had the following text:

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‘The Framework Convention contains no definition of the notion of national minorities. It is therefore up to the individual Contracting Parties to determine the groups to which it shall apply after ratification. National Minorities in the Federal Republic of Germany are the Danes of German citizenship and the members of the Sorbian people with German citizenship. The Framework Convention will also be applied to members of the ethnic groups traditionally resident in Germany, the Frisians of German citizenship and the Sinti and Roma of German citizenship.’

The ACFC agreed that Germany like other state parties have a margin of appreciation in this respect in order to take the specific circumstances prevailing in their country into account, but that this must be exercised in accordance with general principles of international law and the fundamental principles set out in Article 3. The implementation of the Framework Convention should not be a source of arbitrary or unjustified distinctions. The Advisory Committee considers that it is part of its duty to examine the personal scope given to the implementation of the Framework Convention in order to verify that no arbitrary or unjustified distinctions have been made. Apart from the groups identified by the German authorities as being covered by the Framework Convention, in their reply to the questionnaire and in the course of interviews with the Advisory Committee, the German authorities reported the existence of other groups that they do not consider, at this stage, to be covered by the Framework Convention. In this context they referred in particular to the large number of groups living in Germany and indicated that ‘about 7.49 million persons are non-citizens’.11 In particular, the Advisory Committee notes that, according to official statistics, several groups of non-citizens made up of hundreds of thousands of people were residing in Germany on 31 December 1999. The ACFC therefore concluded that it would be possible to consider inclusion of persons belonging to other groups than those listed in the German declaration and gently urged Germany to discuss this issue with the groups concerned.12 A somewhat similar view was expressed by the ACFC in relation to the second periodic report submitted by Germany. Germany has made it clear that it does not intend to change its scope of application, and has adduced a number of arguments what might be of interest in the present context. The arguments are set out most clearly in the third periodic report under the Convention, submitted in April 2009.

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Advisory Committee on Framework Convention, First opinion on Germany, ACFC/INF/ OP/I(2002)008, para 17. L.c. para 73.

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There are four main elements in the German position: One is the insistence of an undiluted competence of the state party to decide on the scope of application. The government points out in its third report that Germany has laid down a clearly abstract definition of the term ‘national minorities’ for legal applications in Germany and has – without any objections being raised by the Contracting States – in its ratification and reports designated the groups to which this definition applies. The second, and for the present purpose most interesting point, is that Germany does not consider the Framework Convention as a general human rights instrument for all groups of the population which differs from the majority in one or several respects such as race, language, culture, religious creed, but the objective is to protect national minorities, a term which according to the German government has a special connotation, requiring the fulfillment of the cumulative conditions that the persons concerned have the citizenship of the country, that the group as such has lived traditionally in the country, and with the exception of the Roma and Sinti, they must still live in their traditional settlement. The German approach represents a deep-rooted historically based conception of what is sometimes called ‘autochtonous’ minorities, a term used not only by Germany but also by some other countries such as Slovenia. In support of its position, Germany points out that the citizenship requirement for the protection of national minorities within the scope of the Council of Europe is used also in the European Parliamentary Assembly Recommendation 1201 (1993), and that the Regional/Minority Language Charta in its Article 1 (a) provides that the term ‘regional or minority language’ does not include the languages of migrants. The third argument is that a very clear distinction between national minorities on the one hand and various groups among migrants and immigrants on the other. Germany argues that this is in line with the purpose of the Framework Convention. ‘The limited scope of application of the Convention…also reflects the clear differentiation between autochthonous minorities, whose members are German nationals and have traditionally settled on German territory, and immigrant minorities.’ The fourth argument is that the article by-article approach preferred by the Advisory Committee would entail the risk of creating ‘first-class’ and ‘secondclass’ national minorities, that is, minorities which would benefit from the protection of all rights, and those which would be only granted selective rights.13

13

Third German report, ACFC/SR/III(2009)003, under section A.2, paragraph 008.

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Germany insists that it has no legal obligation to expand the scope of application of the Framework Convention, but concludes in a conciliatory tone that ‘Germany is prepared to further engage in a dialogue on the question of the scope of application even if it sees no acceptable possibilities for implementing the legal amendments proposed by the Committee’.14

The position of Germany has been quoted here as the clearest example of the restrictive approach, but it must be recognised that most state parties take similar positions though with somewhat greater flexibility. The narrowly defined German concept of national minority does not necessary imply that Germany denies the rights of other ethnic, religious and linguistic groups to use their own language, practice their religion and seek to preserve cultural characteristics, but considerable ambiguity can be detected in this regard. In its 4th periodic report on the implementation of the Covenant on Civil and Political Rights, maintained a very restrictive approach also in regard to Article 27 of the CCPR, asserting that its scope of application in Germany covered ‘ethnic or linguistic groups who have a traditional area of settlement in particular regions’ (para 244 of the 4th periodic report), which means the same as the scope given to FCNM. This resulted in critical comments by the Human Rights Committee, which in its concluding observations stated that this was much too restrictive. ‘The Committee is of the view that article 27 applies to all persons belonging to minorities whether linguistic, religious, ethnic or otherwise including those who are not concentrated or settled in a particular area or a particular region or who are immigrants or who have been given asylum in Germany’.15 In its 5th periodic report under CCPR Article 27, Germany expressed regrets that the impression has been created that the rights under Article 27 of the Covenant in Germany are granted only to specific minorities, and goes on to argue that this is not so:16 ‘All ethnic, religious and linguistic minorities in Germany are protected by the Basic Law as to the rights named in Article 27 of the Covenant. All minorities within the meaning of Article 27 may use their mother tongues and culture and practice their religion. Germany does not exercise any pressure aimed at enforcing assimilation. Accordingly, there are many associations and groupings organised by ethnic, religious or linguistic minorities. These associations serve to maintain cultural identity, the exercise of religious confessions and care for

14 15 16

The third German report.l.c. para 0011. Human Rights Committee, Concluding observations, CCPR/C/79/Add.73 para 13. Germany, fifth periodic report under the Covenant on Civil and Political Rights, CCPR/C/ DEU/2002/5, paras 373 following.

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customs and own language. The activities of these associations and groupings are not hindered in any manner. Many individual projects are supported financially by the state.’

Germany emphasizes, however, that the integration of aliens living lawfully in the long-term in Germany continues to form a particular focus of aliens policy, intended to enable aliens living in Germany to lead a life with equal rights and to enable as full participation as possible in all social fields. Pointing out that Germany extends additional protection to the national minorities defined as such by Germany, the report states that it presumes that Article 27 does not contain the right of ‘further protected minorities’ (those that are not national minorities’ also to be recognised as national minorities. In support of its argument here, Germany refers17 to the ‘Traveaux Preparatoires’ regarding ICCPR Article 27 where it is stated: ‘The provisions concerning the right of minorities, it was understood, should not be applied in such a manner as to encourage the creation of new minorities or to obstruct the process of assimilation. It was felt that such tendencies could be dangerous for the unity of the State. In view of clarification given on those points, it was thought unnecessary to specify in the article that such rights may not be interpreted as entitling any groups settled in the territory of a State, particularly under the terms of immigration laws, to form within that State separate communities which might impair its national unity or security.’ (A/2929, p. 63, para 186)

The German position, while somewhat more strict than several other European states, reflects an approach widely shared: while authorities in line with general human rights respect the freedom of ethnic, religious and cultural groups – also those that are new to the country – to use their language, practice their religion and engage in cultural activities, they nevertheless consider the full integration of these groups into the national society to be more important than to promote conditions for their separate identity. In regard to the traditional minorities, particularly those living in separate areas, the approach is different: It is not seen as an extension of human rights. The separate identity overrides the concern with integration. But the evolving practice indicates that the distinction in approach towards the respective groups is increasingly blurred. 3.3. Criteria used to distinguish ‘new’ from ‘old’ minorities Given that there is no legal definition of ‘minority’ in general, there is also no legal basis for the separation of minorities into categories of ‘old’ or ‘historical’ minorities on the one hand and ‘new’ minorities on the other. We might 17

CCPR/C/DEU/2002/5 para 382.

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nevertheless look at distinctions made in theory or practice, and explore which criteria that could be reasonable to use. The two criteria most commonly used are ‘citizenship’ and ‘traditionally residing in the country’, sometimes called ‘autochtonous minorities’. The evolution of international human rights law has significantly reduced the difference between the rights of citizens and non-citizens. In general terms, States are obliged to ensure the enjoyment of human rights to everyone within their territory and subject to their jurisdiction. The Universal Declaration States that the rights contained within it shall be enjoyed by everyone, without discrimination; thus also by non-citizens. The International Covenant on Civil and Political Rights (ICCPR) art. 2(1) reads as follows: ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’

The State shall ensure the rights contained in the ICCPR to all individuals (not only citizens) within the territory of the State, and there shall be no distinction made in the enjoyment of these rights. There are, as we shall see, some important exceptions. But the main rule should be clear: citizens and non-citizens should enjoy most of the civil rights contained in that ICCPR without distinctions.18 The European Convention for the Protection of Human Rights and Fundamental Freedoms has the same scope: its article 1 states that the State parties shall secure to everyone within their jurisdiction the rights and freedoms defined in the Convention. The Convention on the Rights of the Child is even more explicit in its article 2(1): States parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.’

The International Covenant on Economic, Social and Cultural Rights (ICESCR) art. 2 (2) requires the State parties to guarantee that the rights 18

See on this point also General Comment No. 15 of the Human Rights Committee, UN Doc. HRI/Gen/Rev.1 at p. 18 (1994), and the discussion by David Weissbrodt on this issue, op. cit. Chapter IV.A.1.

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contained in the ICESCR will be exercised without discrimination on grounds listed there, such as national or social origin. Article 2(3), however, contains an exception: developing countries can determine to what extent they would guarantee the economic rights contained in the Covenant to non-nationals. Antithetically, industrialized countries can make no such distinction. Other factors, such as legal residence, work permit and other elements may be relevant, but not citizenship as such. While the Universal Declaration had established that human rights were to be enjoyed by everyone, at least two of its articles contain restricting language – article 21 on political rights and article 13 on the right to freedom of movement. The Universal Declaration at article 21 para 1 and the ICCPR at article 25 deal with the right to take part in the government of one’s country, directly or through freely chosen representatives. Equally important is the right of everyone to equal access to public service in one’s country (Universal Declaration article 21 para 2, ICCPR art. 25 (c). The actual term used is ‘his country’, which obviously includes ‘her’ country as well. In these regards, it is generally recognised that ‘his’ (or her) country refers to the country of citizenship. Some doubts have arisen concerning the scope of the right to enter a country and to be free from expulsion from a country. The Universal Declaration at article 13 and the ICCPR at article 12 deal with freedom of movement. Everyone, citizen or not, is entitled to freedom of movement and residence within the borders of the State and to leave any country including his own, but the right to enter or re-enter a country is limited to ‘his own country’. This would at first sight limit the right of entry as a human right to citizens only, and that remains the general rule, but exceptions may exist. The issue has come up in practice mainly in connection with expulsions of aliens, which implies a denial of re-entry. Citizens (nationals) can generally not be expelled from one’s own country, but to which extent are non-national residents protected from expulsion or from denial of re-entry? The Human Rights Committee observed in its General Comment 27 para 20 that in some circumstances, a long-time resident of the country may enjoy protection under article 12 of the ICCPR, but this extension has been very narrowly construed in cases brought before the Human Rights Committee.19 While citizenship cannot be made a general distinction between ‘old’ and ‘new’ minorities, it is still under international law a legitimate requirement for the enjoyment of some minority rights, particularly for the right to effective

19

For details see Manfred Nowak, U.N. Covenant on Civil and Political Rights. A Commentary, N.P. Engel Publisher, 2nd. Revised edition, 2005, p. 282–289.

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participation in public life. This being so, the criteria for the allocation of citizenship is therefore of considerable importance for new minorities. Matters of nationality are generally considered to be within the domestic jurisdiction of each State, and this is still the main principle of public international law. States have generally been reluctant to accept international regulation of their citizenship legislation, but the relatively recent European Convention on Nationality which entered into force in the year 2000 and in October 2009 has 19 ratifications, has provided a start in this respect. Its article 5 provides that the rules of a State party concerning allocation of citizenship shall not contain distinctions or include any practices which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin. The implication is that states should not make distinctions aimed at preventing or delaying naturalisation of persons belonging to an ethnic group different from that of the majority. States shall also be guided by the principle of non-discrimination between its nationals (citizens), whether they are nationals by birth or have acquired their nationality subsequently, (through naturalization). Persons belonging to new minorities will often fall in the second category. Under Article 6.4 (e), states shall facilitate naturalisation of persons who were born on its territory and reside there lawfully and habitually; this will typically apply to secondgeneration immigrants, many of whom might belong to new minorities. The criterion ‘traditionally residing’ in the country can best be explained from the perspective of the need to ensure and maintain a harmonious social contract in a country. Many states did not emerge through a peaceful agreement between different members of society to create a joint state for the purpose of reciprocal protection, but was a result of wars and conquests before the borders were finally drawn. Recognizing that different ethnic or linguistic groups were thereby forced to live together in the same state, it has increasingly been accepted that the separate identity of the minority groups which did not voluntarily come to the country, but who lived there before the borders were drawn, should be allowed to maintain their own identity and to develop their own community to the extent compatible with the maintenance of a common domain in the state as a whole where the principle of equality and non-discrimination remains applicable. The concern with protection and developing the minority community is particularly appropriate where the minority continues to live in their traditional settlements. These considerations make it understandable that groups that involuntarily have been brought under an authority or government they have not themselves chosen, may be more entitled to preserve and develop their own identity even at the cost of a lesser degree of intergration in the society at large, while ‘new’ minorities who mostly have arrived voluntarily in the country with the full understanding

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that it was not their own, may be required to accept a higher degree of integration. The conclusion to be drawn is that ‘citizenship’ and ‘traditional residence’ should not be applied as criteria in general for the personal scope of application of minority rights or as a general definition of minorities, but can constitute legitimate distinctions in regard to the application of a limited set of minority rights.

4. On social cohesion and the ‘old’ vs. ‘new’ dichotomy An issue which is not always given full attention when discussing minority protection is the importance of social cohesion, a matter receiving increasing attention within the Council of Europe. The European Committee for Social Cohesion has drawn up the European Strategy for Social Cohesion which was adopted by the Committee of Ministers in 2004, and which builds on what is called ‘the European Social Model’. It has some important points of relevance for our discussions here. It pursues a human rights-based approach, including minority rights, but points out that legal protection of human rights have to be accompanied by determined social policy measures to ensure that everyone in practice has access to their rights. Special attention must be given to those that are or who risk becoming vulnerable, including migrants and some of the ethnic minorities. But the strategy also points out that exclusive stress on rights cannot form a sufficient basis for social cohesion. ‘A society is cohesive when people also accept responsibility for one another. It is therefore necessary to build or rebuild a sense of society, of belonging, of commitment to shared social goals.’20 It also emphasises that the integration of migrants and ethnic minorities into society is of utmost importance to social cohesion. As understood by the Council of Europe, social cohesion is the capacity of society to ensure the welfare of all its members, minimising disparities and avoiding polarisation. A cohesive society is a mutually supportive community of free individuals pursuing these common goals by democratic means. ‘Society’ is essentially understood to be the national society as a whole, encompassing the whole population including its majorities and minorities. For purposes of social cohesion and stability, a degree of integration in society is required, and the essential tool is by way of ensuring effective equality

20

Council of Europe, revised Strategy for Social Cohesion, Para 32. http://www.coe.int/t/e/ social_cohesion/social_policies/03.strategy_for_social_cohesion/2_revised_strategy/ G_Revised_Strategy_Part1.asp#TopOfPage.

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for all, while maintaining those aspects of diversity which are compatible with social cohesion and ensuring conditions for the further development of the different cultural traditions. Universal human rights serve as the overarching transcultural framework that should guide the process of integration. Even if we do not accept the restrictive view held by some European countries that the Framework Convention is not a human rights instrument potentially applicable to all ethnic or religious communities, it is reasonable to accept that priority of integration over diversity is stronger in relations to the ‘new’ minorities than for the old and settled minorities, particularly those who still live in their traditional areas. But the Framework convention does take this into account. The flexibility is built into the convention itself. The view expressed by Germany, that an article-by-article approach would create ‘firstclass’ and ‘second-class’ national minorities, is in my opinion untenable. The convention recognises that the contexts and needs of the groups differ, not solely depending on whether they are old or new, but on the nature of their settlement. A corresponding flexibility is found also in the United Nations minority declaration. The flexibility is itself limited, however, because universal human rights have at all times to be taken into account, and many of the provisions both in the UN Declaration and the Framework convention are basically human rights provisions expressed with particular reference to the situation of minorities. A brief review of the main provisions will show this to be the case.

5. ‘Old’ and ‘new’ minorities in general human rights, in the UN Declaration and in the Framework Convention Persons belonging to minorities are also entitled to the universal human rights set out in the Universal Declaration and elaborated in the main conventions (International Covenant on Civil and Political Rights (CCPR); International Covenant on Economic, Social and Cultural Rights (CESCR); International Convention on the Elimination of All Forms of Racial Discrimination (CERD); Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); Convention on the Rights of the Child (CRC); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) ), as well as to the relevant regional human rights instruments. Under CCPR, article 2, States have undertaken to respect and to ensure to all individuals within its territory the rights contained in the Covenant, thus also to persons belonging to any kind of minority, whether citizens or not. The obligations are both negative and positive in nature. States parties must not

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only themselves refrain from violation of the rights guaranteed in the Covenant, but the obligation to ensure those rights implies, if the need arises, the use of positive measures in order to protect the enjoyment of the rights against other, private parties. To do so, the State must adopt the necessary legislative, administrative and other measures to achieve that aim. Under ICESCR, article 2, States have undertaken to take steps to the maximum of available resources to achieve progressively the full realization of the rights for everyone without discrimination; therefore also to new minorities provided they have become residents of the country concerned. This imposes an obligation to move as expeditiously as possible towards that goal. States must immediately identify the vulnerable groups and set benchmarks for the progressive realization, step by step, of the rights contained in that Covenant for everyone under its jurisdiction. As pointed out by the Committee on Economic, Social and Cultural Rights in several of its general comments, the rights contained in the Covenant impose three types or levels of obligations on States parties: the obligations to respect, to protect and to fulfill. In turn, the obligation to fulfill incorporates both an obligation to facilitate and an obligation to provide the rights listed there. While the rights in the Universal Declaration and the Covenants are formulated as the rights of individuals, the respect for and protection of those rights go a long way in guaranteeing minority protection. In addition, some of the rights are mainly enjoyed in community with others of the same group. The principle of non-discrimination is of particular importance in this regard. It is of general applicability, elaborated in many human rights instruments and set out also in the Minority Declaration (art. 4.1), which requires States to take measures where required to ensure that persons belonging to minorities may exercise fully and effectively their human rights and fundamental freedoms without any discrimination and in full equality before the law. It is even more forcefully expressed in Article 4 of the Framework Convention. The freedom of religion and faith is a universal human right and can therefore be used by persons belonging to any religious group to practice their religion. States are under an obligation to respect these freedoms and to protect those who practice them against harassment and violence, as set out also in the UN Declaration and in the Framework Convention Articles 7 and 8. Limitations on the freedom of association, expression and information, or on religious practice, can only be limited under the grounds recognized in the international instruments. Such limitations must be prescribed by law and be necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. These rights are applicable to new as well as old minorities.

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While universal human rights are formulated as the rights of everyone as individual human beings, many of them are usually enjoyed in community with others and can therefore respond to the needs of many minorities. One of these is the freedom of religion and belief, mentioned above, which entitles every minority to profess, practice and manifest their own religion or belief. This implies a right to establish their own institutions to practice their religion or belief and to establish and run their own associations for that purpose. It includes the right to worship in community with others, to establish places for that worship, and the right to publish and disseminate their own religious materials and train or appoint their own religious leaders. Regardless of whether special minority rights exist or the minority is recognized, States have a general duty to respect that freedom and to protect those who practice their religion against harassment and violence. FCNM article 8 confirms what is contained in CCPR articles 18 and 27. Freedom of expression and information is mostly carried out through the use of spoken or written language. Part of that freedom is the right of persons belonging to linguistic minorities to use their own language in any communication among themselves, be it orally or in writing, including through electronic media. They can, of course, also use their own language in any communication with any other willing listener or reader. The right to use their own language in these respects does not depend on any special minority right – it is part of universal human rights. Their use of their own language cannot be prohibited. The content of communication can be limited, but only on the same grounds as restrictions on the content of expression and information in the majority language(s): when the limitations are provided by law and are necessary for the respect of the rights of others or the protection of national security or public order, public health or morals. It needs to be repeated, however, that the choice of language, including the use of one’s own, cannot be prohibited as such - it would be a discriminatory acts under international law and thereby a violation of human rights. Thus, Article 9.1 and 9.2 adds nothing to Articles 19 and 27 of CCPR. There is probably also nothing in Articles 9.3 and 9.4 that would not follow also from a reasonable interpretation of CCPR Articles 19 and 27. FCNM Article 10.1, on the right of persons belonging to minorities to use their own language, simply confirms what follows from universal human rights. Article 10.3 concerning the use of language in relation to arrest and criminal proceedings is also a confirmation of universal human rights including CCPR article 14 (3) (a) and (f). FCNM Article 10.2, however, is different. It deals with the right to use one’s own language in relations with administrative authorities. This can be costly and difficult because it requires not only that the administrative persons concerned can speak or read that language but also that documents can be drawn

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up and circulated, as required, in that language. This right is there severely circumscribed. It applies only in areas inhabited by persons belonging to national minorities traditionally or in substantive numbers, and only when those persons concerned so request and it corresponds to a real need. Even so it is not a real right, but the authorities shall endeavor to ensure as possible that the minority language can be used in these cases. This is one of the provisions of the Charter which explicitly refers to areas of settlement for minorities, but it is not exclusively available to traditional minorities – it applies also for other minorities if they live there in substantial numbers. In practice, however, it is very unlikely that ‘new’ minorities will be covered by this provision except under very special circumstances. Normally the new minorities will live more dispersed, mostly in urban areas, and during their early years of residence in the new country they will have learned the language of the state, and hence there will be no real need for the use of the minority language. But on the purely practical level, persons belonging to new minorities will often have to be helped by interpreters during the early years of presence until they master sufficiently the language(s) of their host country. The right to freedom of association is set out in UDHR, article 20, and in CCPR, article 22 (‘everyone shall have the right to freedom of association with others’). It is also set out in the regional instruments, and is an essential component of universal human rights. The term ‘association’ presupposes an organized, voluntary grouping for a common goal. Freedom of association is both a civil and a political right, and is eminently suited to protect and promote the cultural identity and interests of minorities. Freedom of assembly and freedom of association, together with the freedom of expression, provide the basis for defending those interests in community with others. Minorities need their freedom to communicate with each other, to assemble and to organize. Otherwise they would run serious risks of being subjected to discrimination, prevented from asserting their identity, and limited to the exclusive use of the language of the majorities in the societies in which they live. The State shall normally not interfere with the existence or activities of associations. Their existence is a result of their free decision, and the State is duty bound to allow the establishment and maintenance of voluntary associations, including those whose major purpose is to protect and develop the culture of a minority group. The State may legitimately require registration of associations, but that can generally only be in order to ensure the legitimate purposes of public order. The most common purpose of registration is to ensure that the statutes of the association provide for the economic aspects of the association in a proper way. The FCNM article 7 adds nothing to the existing right to

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freedom of assembly in CCPR Article 21 and the freedom of association in CCPR Article 22. Everyone has a right to education (UDHR, art. 26; ICESCR, art. 13), but the state has the right and the duty to determine the content of the education and the language used in the publicly run educational institutions. Persons belonging to minorities, like all others, are also entitled to establish private educational institutions. This applies to new as well as old minorities. FCNM Article 13 does not go beyond what is already found in CESCR Article 13. Both the CESCR Article 13 and the FCNM article 13 imply a right and duty for the state to set certain requirements for the content of the education. One such requirement is to ensure that children belonging to minorities learn the official language of the state, in addition to the minority language where appropriate. Another requirement is that the content of education of the children conforms to the requirement in the Convention on the Rights of the Child Article 29, as discussed below. In practice, however, the majority of primary, and often secondary and vocational, educational institutions in most countries are run by the State. While persons belonging to minorities shall not be discriminated against in their access to education, a much larger and more complex issue is to what extent they can demand that their identity and culture be taken into account in the educational process. The process of education has a profound impact, positively or negatively, on a young person’s sense of identity. Education can break down the identity shaped by the cultural environment into which the child is born and can leave the person humiliated and culturally disoriented; but education can also help to strengthen and further develop that identity while creating awareness and tolerance of other cultures existing in the same society. Public education in the past often served the purpose of assimilation. Forced assimilation can amount to serious discrimination. While it appears at times to be a natural process towards assimilation into the dominant culture, experience in recent decades has demonstrated that when a minority shows a willingness to assimilate, it is usually a result of existing cultural pressures that prevent it from developing its own culture. The content of education is therefore important for constructive minority policies, but many, and partly conflicting, considerations have to be taken into account. Under the Convention on the Rights of the Child, which has been almost universally ratified, article 29 sets out the purposes which should guide the content of education. By ratifying the Convention, the States parties agree that the education of the child shall be directed to the development of respect for human rights and fundamental freedoms and for the principles enshrined in the Charter of the United Nations. Education shall further promote the

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development of respect for the child’s parents, his or her own cultural identity, language and values; for the national values of the country in which the child is living and the country from which he or she may originate; and for civilizations different from his or her own. The child shall be prepared for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of the sexes and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin. Education shall also aim at the development of respect for the natural environment. One overriding concern, set out in paragraph 1 of article 29, is the development of the child’s personality, talents, and mental and physical abilities to their fullest potential. There is a need for a balance between receiving an education which places great emphasis on minority interests, and the need to be taught subjects which are of value for later life. Educational policies must therefore combine a focus on the universal values, the practical needs of the child, and the respect for separate cultural traditions and identities. Education shall promote the development of respect for the child’s parents, his or her own cultural identity, language and values; for the national values of the country in which the child is living and the country from which he or she may originate; and for civilizations different from his or her own. Under the UN Minority Declaration, article 4, States should, where appropriate, take measures in the field of education, in order to encourage knowledge of the history, traditions, language and culture of the minorities existing within their territory. Persons belonging to minorities should have adequate opportunities to gain knowledge of the society as a whole. The State has a role in ensuring that educational curricula reflect the culture of both minorities and majorities. Educational policies must therefore combine a focus on the universal values, the practical needs of the child, and the respect for separate cultural traditions and identities. Migrants and their families, who have to adapt to the customs and school system of the host country, should nevertheless be able to maintain their characteristics. Education can play a crucial role in shaping their new identity while redefining – but maintaining links with – the society from which the voluntary migrants migrated. Such minorities should, therefore, in accordance with article 29 of the Convention on the Rights of the Child, be entitled to education both about their culture of origin and that of their host culture. FCNM Article 12.3 requires State parties to promote equal opportunities for education at all levels for persons belonging to national minorities. This is a confirmation, in relation to minorities, of obligations arising also from CESCR Article 13 combined with the principle of non-discrimination in CESCR Article 2, and it should apply not only to ‘old’ but also ‘new’

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minorities, including migrants, from the time they have settled in the country concerned. FCNM Article 14, on the right to learn one’s own minority language, is sufficiently vague to be equally applicable both to old and to new minorities. As it stands it does not require the state to fund or organize such learning, but only that states shall not hinder it. It is in Article 14.2 that the main difference arises. It provides that ‘in areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the Parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language’. Article 14.3 adds that this shall be implemented without prejudice to the learning of the official language or the teaching in this language. The obligation is therefore limited, in the same way as Article 10.2, to areas inhabited by minorities traditionally or in large numbers, and only if there is a sufficient demand. Even if these conditions are fulfilled, the obligations are set out in very vague terms. Furthermore, there are two different alternatives, one which is much more far-reaching than the other: The first alternative is to give the persons belonging to minorities the opportunity to be taught the minority language as one specific subject within the broader curriculum witch otherwise is taught in the official language(s). The other alternative is to be generally taught during education in their own language. The former is compatible with an overall process of integration in society; the latter reinforces the diversity in society. The application of this provision is heavily dependent on the nature of the minority settlements, and it can be assumed that in most cases it will not be applied to ‘new’ minorities, for the same reasons as those mentioned in connection with FCNM Article 10.2 above. For practical reasons, however, some education not only of but also in the minority language is given in many countries also for new arrivers, but then only in the earliest stages of education. The issue of minority education is one of the most complex issues under the Framework Convention and has been the subject of an extensive Commentary adopted by the ACFC. FCNM Article 15 requires State parties to 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. In regard to participation in public life, one obstacle for new minorities is that only those that have become citizens are entitled to vote and to be elected in national elections and to hold positions which imply exercise of sovereign

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power. Beyond that, states are obliged as part of their general integration policy and based on their commitments for non-discrimination and equality under CCPR and CESCR, to ensure integration also of new minorities in the economic and social life. It is probable, however, that these obligations will have a different character in regard to old and established minorities as compared to the new. FCNM Article 16 has obviously been framed with the traditional national minorities in mind. That is probably also the case with Article 17, but there is no reason why it should not be applied in relation to new minorities. The same goes for Article 18, and Article 19 on the limits and derogations that states can set for the enjoyment of the minority rights in the FCNM should apply both to ‘old’ and to ‘new’ minorities, though recognising that there can be some differences regarding the two sets of minorities found in other international legal instruments including the FCNM. One of the important practical differences is that which is related to citizenship. Before concluding this section it is necessary to examine briefly two key provisions in the FCNM that is Article 4 and 5. These two articles contain the foundations of the minority system: Article 4 on the one hand, state guarantees for the implementation of the principle of non-discrimination and equal treatment of persons belonging to minorities; and article 5 on the other hand, concerning the obligation of States parties to promote conditions for persons belonging to minorities to maintain and preserve their own culture, including religion, language, traditions and cultural heritage. The provision in Article 4.1 does not go beyond what states are obliged to do under other international human rights instruments, in particular the Covenant on the Elimination of All Forms of Racial Discrimination (CERD), which also includes discrimination on grounds of ethnicity. But Article 4.2 requires more: The promotion of full and effective equality in all areas of economic, social, political and cultural life. It corresponds to the concept of affirmative action, to which State parties to CERD are also committed under its Article 1 paragraph 2. It is therefore doubtful whether the FCNM Article 4 goes beyond what states are obliged to do under CERD. It should in any case be part of the general integration policy of states to promote effective equality among all its inhabitants who are residents of the country. The main issue is the application of Article 5, on the promotion of and support for the maintenance of diversity. It is in this connection that the priority of integration will be felt stronger in relation to ‘new minorities’ than in regard to the old and settled national minorities, and it can be justifiable to make a distinction here. Clearly states have already under CCPR Article 27 and under the UN Minority Declaration to respect the right also of new minorities, also in community with each other, to enjoy their own culture, to profess and

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practice their own religion, and to use their own language, and the state is obliged under FCNM Article 6.2 to protect also persons belonging to new minorities who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity. But the degree to which states are obliged to support and promote the efforts to maintain their separate identity, is a more uncertain question and will not be further discussed here.

6. Concluding theses on new minorities: their rights and protection A frequent weakness in debates over definition is an underlying assumption that all groups which fall inside a possible definition should have the same rights, and that those who fall outside should not. I do not consider this to be a fruitful approach. There is a great variety of minorities, living under highly different circumstances, with very different needs, and the justification for their protection varies greatly. Rather than striving to have one common definition of ‘minorities’ one should focus on which rights should be held by which type of minority under particular circumstances. Considerations of reasonability and proportionality have to be taken into account. This is not to say that there should not be some general standards on minority rights, but these should be conceived as broad frameworks within which any specific situations could be addressed in ways which corresponds to the needs of the context and situation. International law does not in general terms make a distinction between ‘old’ and ‘new’ minorities, and this is so for very good reasons. All minorities, whether ‘new’ or ‘old’, should enjoy some of the rights contained in the emerging international law on the protection of minorities, but some of the rights – and some of the obligations of the state – can justifiably be reserved mainly to the older, established minorities. International standards of minority protection covers a broad set of rights and obligations, ranging from the universal principle of non-discrimination, through reinforcement of fundamental freedoms when applied in a minority context, to various forms of positive measures of lesser or greater burden in terms of resource allocation and in other ways. Members of all minorities whether new or old are entitled to the basic freedom from discrimination and the other fundamental freedoms, but that those parts of positive measures which constitute significant burdens on the state can more reasonably be reserved for ‘old’ or ‘traditional’ minorities. The distinction between ‘old’ and ‘new’ minorities should not be based on criteria of citizenship, partly because the status as non-citizens is not always a

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result of recent arrival and partly because there are great variations in the policies of states regarding allocation of citizenship. But lack of citizenship can have serious consequences for members of minorities. In particular, it can seriously undermine their possibility for effective participation in the political life of the country and even for their right to remain in existence in that country. For that and other reasons, it is necessary also to underline that states are no longer entirely free to determine their criteria of citizenship. International human rights law have already set important requirements to state legislation in this area, particularly in the context of state succession and state restoration. The Framework Convention on the Protection of National Minorities reflects the evolution that has taken place. While most of the provisions are mainly reiteration of general human standards, reinforcing the point that they can be used in community with other members of the same group, a few of them are restricted to groups living in particular areas either traditionally or in substantial number. In nearly all such cases they are ‘old’ minorities. In regard to those provisions (particularly Article 10.2 and 14.2) the distinctions between ‘old’ and ‘new’ has some practical applicability, even though it is not absolute – there may be conditions where the requirements under those provisions are fulfilled also for new minorities.

Changing Paradigms in the Traditional Dichotomy of Old and New Minorities Roberta Medda-Windischer1 Abstract In the current discussion on minority issues it is debated whether the scope of application of international treaties pertaining to minorities that are usually applied to historical, old minorities can be extended to new minority groups stemming from migration. Studying the interaction between traditional minorities and migrants or old and new minority groups is a rather new task because so far these topics have been studied in isolation from each other. It is also an important task for future research in Europe where many states have established systems of old minority rights, but have not yet developed sound policies for the integration of new minority groups originating from migration. An analysis of the differences and similarities of old and new minorities, their claims, needs and priorities will allow us to differentiate the catalogue of rights that can be demanded by, and granted to, different minority groups.

1. Conceptualising a Common Approach for the Protection of Old and New Minorities The terms historical, traditional, autochthonous minorities – the so-called old minorities – refer to communities whose members have a distinct language and/or culture or religion compared to the rest of the population.2 Very often, they became minorities as a consequence of a re-drawing of international 1

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The author is Senior Researcher, LL.M, PhD, at the Institute for Minority Rights (IMR) – European Academy Bolzano/Bozen (EURAC). This article is based on a larger work by the same author entitled Old and New Minorities: Reconciling Diversity and Cohesion, Nomos Publisher 2008. The Explanatory Report of the Framework Convention for the Protection of National Minorities states, rather ambiguously, that the term ‘inhabited … traditionally’ referred to by Art. 10 (2), Art. 11 (3), and Art. 14 (2) of the FCNM ‘does not refer to historical minorities, but only to those still living in the same geographical area.’ (Emphasis added) (para 66), at .

Kristin Henrard, Double Standards Pertaining to Minority Protection, pp. 195–218. © 2010 Koninklijke Brill NV. Printed in the Netherlands.

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borders and their settlement area changing from the sovereignty of one country to another; or they are ethnic groups which, for various reasons, did not achieve statehood of their own and instead form part of a larger country or several countries.3 The new minority groups stemming from migration refer to groups formed by the decision of individuals and families to leave their original homeland and emigrate to another country generally for economic and, sometimes, also for political reasons.4 They consist, thus, of migrants and refugees and their descendants who are living, on a more than merely transitional basis, in another country than that of their origin.5 A crucial issue in discussing minority protection is that claims of minorities, migrants and historical minorities alike, are often perceived as a challenge and antagonistic to the traditional model of homogeneous ‘nation-states’ 3

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It has to be noted that there is a subtle continuum between minority groups and indigenous peoples. Particularly in light of the complexity of the concept of ethnic minorities, it must be agreed that indigenous peoples constitute at the least a special type of ethnic minority. According to the working definition of indigenous peoples given by the UN Special Rapporteur, José Martinez Cobo in his report to the then Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study of the Problem of Discrimination Against Indigenous Populations, UN Doc. E/CN.4/Sub.2/1986/87, which led to the creation of the Working Group on Indigenous Populations, these are peoples that are native to the place in which they live, have a historical continuity with pre-invasion and pre-colonial societies that developed on their territories but have lost their independent character as a result of colonial invasion. See also, the Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly on 13 September 2007, UN Doc. GA/10612; and Art. 1(b) of ILO Convention 169 (1989) concerning indigenous and tribal peoples in independent countries. For recent data, see UN Population Fund, The State of World Population, 2007. It is important to note that some countries use regularly the term ‘minorities’ to refer to immigrants living on their territories. For instance, in the United Kingdom the term ‘ethnic minorities’ is used in preference to ‘migrants’. This terminological preference reflects a policy of regarding legally resident migrants (particularly those who were born in the country concerned) as a permanently established part of the population. The term ‘migrants’ is avoided because it not only implies that they moved to the country but also because it is simply incorrect to describe persons born in the country of migrant parents as ‘migrants’. See, John Murray, ‘Should Immigrants or Roma and Sinti be Regarded as Minorities?’, in: F. Matscher (ed.), Vienna International Encounter on Some Current Issues Regarding the Situation of National Minorities, Kehl/Strasbourg/Arlington: N.P. Engel Verlag 1997, p. 219. Use of the term ‘ethnic minority’ in such contexts however in no way necessarily implies the existence of any legal minority status. Its significance is rather administrative in that it may qualify them or their associations for various grants and make them potential beneficiaries of equal opportunities policies, but it does not necessarily entail other rights included in specific instruments on minority rights. See, in this regard, the position of the Netherlands, FCNM, List of Declarations, Status as of 30 June 2008, Declaration by the Netherlands, dated 16 February 2005, at .

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because both groups seek to increase within this model opportunities to express their identities and diversities at individual and group level. Moreover, historical minorities and migrants are often perceived as foreigners to the community of shared loyalty towards the state and shared rights guaranteed by that state. Members of historical minorities and migrants are seen as loyal to their kin-state or to the state whose citizens they are and to whose sovereign they belong, as long as they are not absorbed into the national body through assimilation or naturalisation. Historically, migrant groups have reacted very differently to majority, dominant societies than historical minorities.6 Unlike historical minorities whose cultural traditions may pre-date the establishment of the state of which its members now find themselves citizens, generally, few migrant groups object to the requirement that they must learn the official language of the host state as a condition of citizenship, or that their children must learn the official language in school. In general terms, migrants, more frequently than old minority groups, accept that their life-chances and those of their children depend largely on the participation in mainstream institutions operating in the majority language.7 With regard to migrants, but also to certain extent the traditional minorities especially in case of mixed marriages, the second and third generations face a number of problems ranging from identity-related issues to socioeconomic hindrances. Children of second and third generations are in fact

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According to Walzer, immigrants are considered to have made a choice to leave their own original culture, and know that the success of their decision will depend on integrating into the mainstream of their new society. In these cases ethnic diversity arises from the voluntary decisions of individuals or families to uproot themselves and join another society. On the contrary, Walzer argues, old minorities are settled on their historic homelands. These groups find themselves in a minority position, not because they have uprooted themselves from their homeland, but because their homeland has been incorporated within the boundaries of a larger state. This incorporation is usually involuntary, resulting from conquest, or colonization, or the ceding of territory from one imperial power to another. Under these circumstances, it is argued, minorities are rarely satisfied with non-discrimination-individual rights model and eventual integration. What they desire, Walzer says, is ‘national liberation’ that is, some forms of collective self-government, in order to ensure the continued development of their distinct culture. See Michael Walzer, ‘Pluralism: A Political Perspective’, in: Will Kymlicka (ed.), The Rights of Minority Cultures, Oxford: Oxford University Press 1995, p. 139–154. This differentiation is however questionable mainly because it is debatable whether migrants have really made a voluntary ‘choice’ to migrate. This applies not only to refugees or those fleeing from wars or natural disasters, but also to the so-called ‘labour migrants’ who escape from economic distress. Will Kymlicka, Politics in the Vernacular, Nationalism, Multiculturalism, and Citizenship, Oxford: Oxford University Press 2001, p. 152–172.

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subjected to the decisions taken by their parents and their living between two cultures and languages can be perceived either as an enriching experience or, often, as an excessive burden. This is due to the fact that often the second and third generations of migrants have less cultural distance from the host society than their parents, but they have not reached a satisfactory degree of integration from a socio-economic viewpoint. While it is acknowledged that there are exceptions, it can be said that the primary demands insisted on by migrants are thus mainly directed towards improving their integration in the major institutions of the autochthonous, host communities. Migrants seek to reform main public institutions in the host countries in order to provide greater recognition of their identities, and greater accommodation of their practices, so as to facilitate their participation in these institutions without seeking new forms of autonomies in these domains. They may want for example schools to provide more information about the immigrant experience, workplaces to accommodate their religious holidays or traditional dress and government agencies to provide health care and welfare benefits in a way that is culturally sensitive.8 On the contrary, historical minorities generally resist assimilation more strenuously, despite economic incentives and political pressures to do so, and prefer instead to seek official recognition for separate and autonomous use of their language and enjoyment of their culture.9 Hence, the claims of historical minorities concern not only the equal treatment of their members and preservation and development of their identity within the dominant society, but also those aiming at guaranteeing the effective participation in public life for their members through measures that range from territorial or non-territorial forms of autonomy all the way through to secession.10 In the current discussion on minority issues it is debated whether the scope of application of international treaties pertaining to minorities that are usually applied to historical, old minorities can be extended to new minority groups stemming from migration. The positions in this regard are extremely 8 9

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Ibid. See, among others, Article 5(2) of the FCNM that protects persons belonging to national minorities from assimilation against their will. It does not prohibit voluntary assimilation and it does not preclude member states from taking measures in pursuance of their general integration policy. See, Explanatory Report of the FCNM, paras 45–46. In general terms, territorial autonomy involves the granting of separate powers of internal administration, to whatever degree, to such entities possessing some ethnic or cultural distinctiveness without those areas being detached from the state. The creation of new political units which enable members of historical minorities to exercise self-governing powers over public institutions are variously referred to as multinational federations, quasi-federal autonomy, or extensive self-government regimes.

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diversified: among states, some have adopted rather narrow views firmly opposing the extension of minority provisions to new minorities;11 others have instead pragmatically applied some provisions to new groups12 whilst others have not yet taken an official position. Most international bodies dealing with minorities have adopted an open approach, in particular, the Advisory Committee on the Framework Convention,13 the European Commission for Democracy Through Law (the CoE Venice Commission),14 the Human Rights Committee,15 the UN Working Group on Minorities,16 and the OSCE High Commissioner on National Minorities that has recently extended its mandate to new minority groups stemming from migration.17 Scholars and academics range from those in favour of extending the scope of application of minority rights to new minority groups originating from migration to those opposing this approach.18

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See, among others, FCNM, List of Declarations, Status as of 30 June 2008, Declaration by Germany, dated 11 May 1995, and renewed on 10 September 1997, and Declaration by Estonia dated 6 January 1997, at . ACFC, Opinion on the United Kingdom, 30 November 2001, ACFC/INF/OP/I(2002)006, para 14. ACFC, Second Report submitted by Finland, 10 December 2004, ACFC/SR/ II(2004)012 (Art. 3). See, among others, ACFC, Opinion on Austria, 16 May 2001, ACFC/INF/OP/I/009, paras 19–20, at 34; ACFC, Opinion on Germany, 1 March 2002, ACFC/INF/OP/I/008, paras 17–18, at 40; ACFC, Opinion on Ukraine, 1 March 2002, ACFC/INF/OP/I/010, para 18. European Commission for Democracy Through Law (Venice Commission), Report on NonCitizens and Minority Rights, CDL-AD(2007)001, 18 January 2007. HRC, CCPR, General Comment No. 23, The rights of minorities (Art. 27), CCPR/C/21/Rev.1/ Add.5, 8 April 1994, paras 5.1–5.2. Asbjørn Eide, Commentary to the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Working paper submitted to the UN Working Group on Minorities, Sixth session, 22–26 May 2000, UN Doc., E/CN.4/Sub.2/ AC.5/2000/WP.1. See, OSCE Parliamentary Assembly, 2004 Edinburgh Declaration, in which the Assembly specifically called on the HCNM to ‘initiate a comparative study of the integration policies of established democracies and analyse the effects on the position of new minorities.’ See, OSCE, High Commissioner on National Minorities, Policies on integration and diversity in some OSCE participating States. Exploratory study prepared by the Migration Policy Group, HCNM.GAL/6/06, 3 July 2006. See also, Rolf Ekéus, Statement to the OSCE Parliamentary Assembly, Fifth Annual Winter Meeting, Vienna, 23 February 2006, HCNM.GAL/3/06, 24 February 2006. For an overview of different viewpoints, see, Edwin Bakker and Jeroen Bomers (eds.), New Minorities: Inclusion and Equality, Roundtable Conference – 20 October 2003, Netherlands Helsinki Committee 2003; Paul Lemmens, André Alen, Bruno De Witte and Annelies Verstichel (eds.), The Framework Convention for the Protection of National Minorities. A Useful Pan-European Instrument?, Intersentia 2008.

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It is well known that, on the whole, drafters of international instruments have been so far unsuccessful in efforts to define the term ‘minorities’. In international law there is no generally recognised legally binding definition of the term ‘minority’, not to mention ethnic, religious or linguistic minorities, despite several attempts in the past decades to elaborate such concepts.19 A significant amount of energy and time has been spent over the past five decades by various international organisations in the quest for a generally acceptable definition of the term minority, mainly for codification purposes, yet no conclusive results can be reported. In the case of the UN Declaration on the Rights of Persons Belonging to National or Ethnic Religious and Linguistic Minorities (hereinafter ‘Declaration on Minorities’)20 as well as the CoE Framework Convention for the Protection of National Minorities (hereinafter ‘Framework Convention’),21 drafters expressly avoided a definition of the term ‘minorities’, leaving this to the courts, parliaments, governments or other bodies involved in the interpretation of these instruments. The lack of a common, legally binding definition of minority makes it more difficult to establish whether migrant minorities are to be considered as included within the scope of application of international instruments pertaining to minorities. As discussed earlier, although migrants possess ethnic, religious, cultural and/or linguistic characteristics differing from those of the host communities, they are usually excluded from the definitions of minorities proposed by many State Parties for the implementation of relevant legal instruments. As seen, the Framework Convention refrains from any attempt at a legally binding definition of national minorities. Thus, neither the text of the Convention nor the Explanatory Report contains any indication as to whether populations of immigrant origin ought or ought not to be considered as being covered by the provisions of the Framework Convention. States interpret the Convention differently on this point as they enjoy a certain margin of appreciation in determining the groups to which the Convention shall apply. They may legitimately do so in order to take the specific circumstances prevailing in 19

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The most quoted, though non-binding, definition of minorities is by Francesco Capotorti in his Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.1, 1977, para 568. See also the (non-binding) general definition of national minorities formulated by the Parliamentary Assembly of the Council of Europe, in PACE, Recommendation 1201 (1993) on an Additional Protocol on the Rights of National Minorities to the European Convention of Human Rights. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by General Assembly Resolution 47/135 of 18 December 1992. Framework Convention for the Protection of National Minorities, adopted on 1 February 1995, entered into force on 1 February 1998, ETS No. 157.

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their country into account. This margin of appreciation, however, must be exercised in accordance with the general principles of international law, the fundamental principles set out in Article 3 of the Framework Convention22 as well as the international practice in this field because the Framework Convention should not be, a source of arbitrary or unjustified distinctions.’23 With a view to preventing any such distinctions from being made, the Committee of Ministers of the Council of Europe, with the assistance of the Advisory Committee on the Framework Convention, exercises a supervisory role on the personal scope given by each country to the implementation of the Framework Convention.24 Most member states of the Framework Convention that have limited the personal scope of application of this treaty have done so by requiring that members of the group concerned must be citizens of the state in order to constitute a minority.25 In many cases, it is also required that the group has long-established or historical ties with the country. The latter requirement means that even those who have obtained the citizenship of the country concerned through naturalisation remain out of the scope of the FCNM. Germany, for instance, has declared that the Framework Convention apply to Sinti and Roma if they reside traditionally in Germany and have also German citizenship.26 Likewise, Austria has decided that the Framework Convention applies to minority groups which live and traditionally have had their home in parts of the territory of Austria and which are composed of Austrian citizens with non-German mother tongues and with their own ethnic cultures. It must be emphasized that despite any formal declaration, in practice, a growing number of states do not restrict in their report on the implementation of the FCNM the information provided to people who are citizens:

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Art. 3(1) FCNM provides: ‘Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice.’ See, CoE PACE Recommendation 1623 (2003), Rights of National Minorities, para 6. See Art. 26 FCNM. For full reference, see the website of the Council of Europe’s Legal Affairs/Treaty Office, at: . In its declaration made with respect to the FCNM, Germany has declared that ‘national minorities’ are only the Danes and the members of the Sorbian people with German citizenship. It is important to note that with regard to Sinti and Roma as well as the Frisians with German citizenship, Germany has only declared that the FCNM will also apply to them without implying any legal recognition of these groups as national minorities. See, FCNM, List of Declarations, Status as of 30 June 2008, Declaration by Germany, dated 11 May 1995, and renewed on 10 September 1997, at .

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Estonia,27 Sweden,28 Ireland,29 the United Kingdom,30 or Finland,31 provide information on certain groups, regardless of whether their members are citizens or not and this sometimes include information on groups of recently arrived immigrants. However, this inclusive approach cannot be interpreted as a recognition that the concept of ‘minorities’, as benefiting the rights stipulated under the Framework Convention on the Protection of National Minorities, is automatically extended to non-nationals, whether or not they have strong links to the national territory.32 As said earlier, this paper contends that on the basis of a common definition of minorities, encompassing old and new minorities, it is possible to develop a common but differentiated set of minority rights. Before formulating a common definition for old and new minorities, the next section will analyse some of the problems connected with the lack of a general binding definition of minorities.

2. Definition of Minorities: Cons and Pros Some commentators have argued that reaching an agreement on a common definition of minorities might not only be difficult, but also of little usefulness and even potentially harmful.33 The main criticisms to a general definition of minorities can be summarised as follows: firstly, it is argued that a general definition would not be necessary because bad minority protection is not a problem of definition but rather of lack of political will or capability to act; secondly, a legally binding definition would not be desirable and would be 27

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ACFC, Opinion on Estonia, 14 September 2001, ACFC/INF/OP/I(2002)005, para 17; ACFC, Opinion on Estonia, 22 July 2005, ACFC/INF/OP/II(2005)001, paras 24–27. ACFC, Opinion on Sweden, 20 February 2003, ACFC/INF/OP/I(2003)006, para 16. ACFC, Opinion on Ireland, 22 May 2003, ACFC/INF/OP/I(2004)003, para 24. ACFC, Opinion on the United Kingdom, 30 November 2001, ACFC/INF/OP/I(2002)006, para 14. ACFC, Second Report submitted by Finland, 10 December 2004, ACFC/SR/II(2004)012 (Art. 3). It is obvious that not all non-citizens are migrants; there are minorities who are stateless, as many members of the Roma community, or have become stateless as a consequence of state succession or state restoration, as the members of the Russian-speaking minorities in the Baltic States. References to this approach are reported by Asbjørn Eide, Prevention of Discrimination and Protection of Minorities, Report submitted to the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Fifty-fifth session, 17 June 2003, UN Doc. E/CN.4/Sub.2/2003/21, para 40.

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potentially harmful, because a general definition would easily lead to the assumption that all minorities falling within that definition would be entitled to all minority rights, and that all groups falling outside are entitled to none of the minority rights; thirdly, the introduction of a commonly accepted definition would inevitably mean alignment by the lowest common denominator, and, finally, for many groups, the designation ‘minority’ is objectionable because it is perceived to imply some kind of secondary citizenship, if the members are given citizenship at all.34 Despite these criticisms, it is acknowledged that to guarantee a homogenous and consistent implementation of legally binding instruments on minority rights, states should clarify the intended beneficiaries. This is particularly relevant if one considers that states are ultimately the main guarantors of minority protection, including the implementation and realisation of the relevant international instruments and the rights assigned by them to persons belonging to minorities. A pragmatic approach that leaves the question of definition open to the state’s margin of appreciation is thus not fully satisfactory because it can lead to inconsistent implementation of the same provisions by different states in respect to minority groups that find themselves in analogous situations. Any reliance in an international instrument on the notion of ‘minorities’, as for instance, in Article 2 of the Treaty on European Union (Lisbon consolidated version, 2008),35 or of ‘national minority’, as in Article 21 of the EU Charter of Fundamental Rights (2000),36 should be based on a common legally binding definition of minorities and should not be subject to diverse interpretations in different Member States. Moreover, a legal general definition of minorities encompassing different types of minorities may be an important tool for advocating the extension of

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In this respect, the Advisory Committee on the Framework Convention has noted that the possibility for certain groups that constitute a numerical minority to enjoy the protection provided by the Framework Convention does not imply ‘a weakening of their status as constituent peoples as provided for by the Constitution, but merely aim at offering an additional tool to respond to a specific need for protection.’ See, ACFC, Opinion on BiH, adopted on 27 May 2004, ACFC/INF/OP/I(2005)003, para 28; ACFC, Opinion on Cyprus, 6 April 2001, ACFC/INF/OP/I(2002)004, para 17. The Consolidated Version of the Treaty on European Union (OJ C115, 9 May 2008) has been amended by the Treaty of Lisbon of 13 December 2007 (OJ C306/01, 17 December 2007), which followed the failure of the Treaty Establishing a Constitution for Europe (OJ C310/4, 16 December 2004). The Treaty of Lisbon is not entered into force yet. Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000, as amended by the Treaty of Lisbon, OJ C 303/01, 14 December 2007.

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the scope of application of international instruments on minority rights to new minority groups originating from migration. This would reverse the fact that most international instruments for the protection of migrants, such as the United Nation’ s 1990 International Convention on the Protection of the Rights of All Migrants Workers and Members of Their Families (hereinafter‚ ‘UN Migrant Workers’ Convention’),37 the Council of Europe’ s 1977 Convention on the Legal Status of Migrant Workers (hereinafter ‘CoE Migrant Workers’ Convention’)38 or the EU Directive on the status of third-country national who are long-term residents,39 contain only a vague reference to the protection and promotion of their identities, or even a potential conflicting requirement of ‘integration’, whilst the notion of collective rights is completely absent.40

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UN, International Convention on the Protection of the Rights of All Migrants Workers and Members of Their Families, adopted by General Assembly Resolution 45/158, entered into force on 1 July 2003. CoE, Convention on the Legal Status of Migrant Workers, adopted on 24 November 1977, entered into force on 1 May 1983, ETS No. 093. EU Directive concerning the status of third-country nationals who are long-term residents, OJC 109, 23 January 2004. The UN Migrant Workers Convention is an exception in this regard but so far it has been ratified only by countries of emigration: Art. 31 provides: ‘States shall ensure respect for the cultural identity of migrant workers and members of their families and shall not prevent them from maintaining their cultural links with their State of origin (1). States Parties may take appropriate measures to assist and encourage efforts in this respect (2).’ Article 12(f) of the ILO Convention No. 143 ‘Concerning Migrations in Abusive Conditions and the Promotion of Opportunity and Treatment of Migrant Workers,’ entered into force on 9 December 1978, only concedes that ‘Members States should take all necessary steps to assist and encourage the efforts of migrant workers to preserve their national and ethnic identity and their cultural ties with their country of origin, including the possibility for children to be given some knowledge of their mother tongue.’ (Emphasis added). Emphasis on the teaching of the migrant workers’ mother tongue for their children is also placed by the CoE Migrant Workers Convention (Art. 15) and by the UN Migrant Workers Convention (Art. 45). The aim of these provisions is however the return of these children to the country of origin of their parents. The EU Directive on the status of third-country national who are long-term residents (Art. 5(2) and Art. 15(3) ) as well as the CoE Migrant Workers Convention (Art. 14) emphasise the integration conditions in the receiving countries including linguistic training on the language of the host country. Finally, the 1978 UNESCO Declaration on Race and Racial Prejudice (adopted by the General Conference of UNESCO on 27 November 1978) proclaims the right to be different, and thus, in developing policies for the integration of migrants, host states should guarantee the preservation of migrants’ cultural identity as a pledge of their right to be different, although subject to the legislation of the host countries (Art. 1, para 2). The UNESCO Declaration is however not a legally binding instrument.

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3. A Common Definition for Old and New Minorities Generally, it is acknowledged that the existence of a minority depends on a combination of objective and subjective factors.41 Exclusive reliance upon supposedly objective or factual criteria is likely to be associated with policies of separation such as those involving the creation of separate voting rolls, as until recently in Pakistan,42 or the formal recording of ethnic affiliation on individual identity cards, as in the propiska system in the former Soviet Union. It may also prove difficult to implement in practice, particularly where inter-marriage and the resulting mixed identities are prevalent. In addition, not only objective or factual criteria run counter to the principle of individual choice in the UN Declaration and the Framework Convention, but so too would exclusive reliance upon communal acceptance. On the other hand, exclusive reliance on purely open procedures of self-identification and self-declaration may result in perverse claims of membership. Hence, a combination of objective and subjective criteria and an acceptance that individuals may choose not to be identified as a member of any group but to assert an individual or integrated identity is likely to fit most easily with general policies of minority protection. As discussed earlier, many states consider the citizenship of members of a distinct group as an important requirement for defining such a group as a minority. The citizenship requirement obviously excludes aliens, refugees, permanent residents, migrant workers or stateless persons. It is however recognized that not all non-citizens are migrants or refugees; there are minorities whose members have been arbitrarily denied or illegitimately deprived of citizenship, such as the case of the Roma within many European states. In addition, as clearly stated by the Human Rights Committee, members of a minority need not to be citizens of the state from which protection of Article 27 of the International Covenant on Civil and Political Rights – the Grundnorm for the protection of minorities – is demanded. The Human Rights Committee clarified that the terms of Article 27 indicate that individuals designated to be protected need not be citizens of a state party, and that a ‘State party may not therefore restrict the rights under Article 27 to its citizens alone.’43 Then, it 41

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For an analysis on this point, See, Roberta Medda-Windischer, Old and New Minorities: Reconciling Diversity and Cohesion, Nomos Publisher 2008. Constitution of the Islamic Republic of Pakistan, Art. 51(4A); this provision was repealed in 2001. See, also, UN Doc. E/CN.4/Sub.2/AC.5/2003/WP.5, International Centre for Ethnic Studies, Statement of Principles on Minority and Group Rights in South Asia, 2003, p. 23–26. Human Rights Committee, CCPR, General Comment No. 23, The rights of minorities (Art. 27), CCPR/C/21/Rev.1/Add.5, 8 April 1994, paras. 5.1–5.2. See also UN HRC, Sandra Lovelace v.

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continues: ‘Just as they need not be nationals or citizens, they need not be permanent residents. Thus, migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights.’44 Asbjorn Eide, Chairman of the (former) UN Working Group on Minorities, has clearly noted that citizenship as such should not be a distinguishing criterion which excludes some persons or groups from enjoying minority rights.45 On the basis of a combination of objective and subjective elements – i.e. ethnic, cultural, religious or linguistic characteristics, residence or legal abode, numerical minority, non-dominant position and a sense of solidarity or will to survive – a general definition of minorities can be formulated as follows: a minority is any group of persons, 1) resident within a sovereign state on a temporary or permanent basis, 2) smaller in number than the rest of the population of that state or of a region of that state, 3) whose members share common characteristics of an ethnic, cultural, religious or linguistic nature that distinguish them from the rest of the population and 4) manifest, even only implicitly, the desire to be treated as a distinct group.46 Clearly, in a common definition for old and new minorities, the element of citizenship, which is usually required by states to limit the personal scope of application of most international instruments on minorities, is replaced by the element of residence or legal abode. As seen earlier, new minority groups originating from migration could benefit mostly from a general legal definition of minorities encompassing old and new minorities as this constitutes the basis for advocating the extension of the scope of application of international instruments pertaining to minorities, in particular the CoE Framework Convention, as to include them. This would mean extending minority rights, though not necessarily all of them, to groups stemming from migration in particular, the set of rights related to identity and diversity. This extension would fill the gap present in most international instruments on migrants’ rights that contain only weak and ambivalent references to the protection of migrants’ identity and diversity. But the protection of the identity of minorities, and in particular of new minorities, is one of the

44 45

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Canada, Communication No. 24/1977, UN Doc. CCPR/C/13/D/24/1977, Views of 30 July 1981. HRC, General Comment No. 23, ibid. Asbjørn Eide, Prevention of Discrimination and Protection of Minorities, Report submitted to the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Fifty-fifth session, 17 June 2003, UN Doc. E/CN.4/Sub.2/2003/21, para 40. The requirement to manifest the desire to be treated as a ‘distinct group’ includes in the definition ‘constitutive peoples’ as those existing in Bosnia and Herzegovina. See, ACFC, Opinion on BiH, adopted on 27 May 2004, ACFC/INF/OP/I(2005)003, para 28.

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bases of a successful process of integration in which minority groups can develop a genuine sense of loyalty and common belonging with the rest of the population without being threatened of being forcibly assimilated in the mainstream society, which as a result can engender resistance and alienation. A veritable integration process, as referred to in Articles 5 and 6 of the Framework Convention and its Explanatory Report,47 can be defined along the lines of four dimensions: integration implies an acquisition of rights, access to positions and statuses in the core institutions of the mainstream society (legal or structural integration), a cognitive, cultural, behavioural and attitudinal change (cultural integration), a building of social relations (social integration) and a formation of feelings of belonging and identification by minorities towards the community in which they live (identificational integration).48 An integrating approach based on a common and broad legally binding definition of minorities would be thus the starting point for appropriate qualifications in regard to which specific right should be granted to which specific group and under which conditions they shall apply.

4. Defining a Common but Differentiated Protection of Minorities As seen throughout this paper, this work contends that minority groups, old and new alike, share some common characteristics and thus voice similar claims. Consequently, it is arguably possible to conceive a common but differentiated system of protection. The main claims and rights of minorities can be

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The Framework Convention and its Explanatory Report refer to the ‘general integration policy’ that can be implemented by states without any purpose or effect of assimilating the minorities into the dominant culture (Art. 5 FCNM and para. 46 of the Explanatory Report) and to the integration into society of persons belonging to ethnic, cultural, linguistic and religious groups whilst preserving their identity (Explanatory Report, para. 49 on Art. 6 FCNM). The European Commission has defined ‘integration’ as a ‘dynamic, two-way process of mutual accommodation by all immigrants and residents of Member States’, Communication from the Commission, A Common Agenda for Integration. Framework for the Integration of ThirdCountry Nationals in the European Union, 1 September 2005, COM(2005)389 final, Annex, CBP 1. See also European Commission (DG Justice, Freedom and Security), Handbook on Integration for Policy Makers and Practitioners, Migration Policy Group, May 2007, 2nd ed.; Council Meeting (2618), Justice and Home Affairs, Common Basic Principles for Immigrant Integration Policy in the European Union, Council Document 14615/04, 19 November 2004, Annex; OSCE High Commissioner on National Minorities, Policies on integration and diversity in some OSCE participating States. Exploratory study prepared by the Migration Policy Group, HCNM.GAL/6/06, 3 July 2006.

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divided into four main categories – Right to existence, Equal treatment and non-discrimination, Right to identity and diversity, Participation in cultural, social and economic life and in public affairs – which correspond to the historical development of international minority protection.49 In the next paragraphs the common categories of rights for old and new minorities will be analysed, and subsequently, the factors for differentiating claims and rights will be addressed. During the initial stage, legal protection was principally focused on the protection from destruction (Right to existence). In many parts of the world, minority groups live under the shadow of extinction: some have suffered or are suffering from physical destruction, genocide or ‘ethnic cleansing’, and so fought or are fighting for the basic right of their existence. For these groups, issues such as language rights, regional autonomy or group representation may seem like utopian ideals or, at best, ‘luxury’ rights. The existence of a community relies also on the legal framework existing in the domestic legal order of the country in which they live that guarantees minority protection and regulates the recognition of national minorities and the collection of basic data concerning their existence, needs and concerns.50 49

50

See, for a slight different categorization, Asbjørn Eide, Prevention of Discrimination and Protection of Minorities, Report submitted to the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Fifty-fifth session, 17 June 2003, UN Doc. E/CN.4/Sub.2/2003/21; Marc Weller, ‘Creating the Condition necessary for the Effective Participation of Persons belonging to National Minorities – A critical evaluation of the first results of the monitoring of the FCNM 1998–2003’, in: Filling the Frame, 5th Anniversary of the entry into force of the FCNM, 30–31 October 2003, Strasbourg: Council of Europe 2003, p. 3. The question of non-recognition of a minority group is a subject on which there are no national or international instruments; nor is there any satisfactory case-law. In some cases the de facto existence of a minority is admitted, but that admission does not imply de jure recognition. If an independent state does not accept the existence of a minority group, there is no ad hoc machinery for settling the dispute at international level, even though sectors of the international community, the press and the general public recognise that the group in question should enjoy explicit and legal recognition. This is considered to be a major lacuna both in international legislation and in conflict-resolution mechanisms. Only through (indirect) recourse to other provisions, such as freedom of assembly and association or freedom of religion, can the use of recognition and existence of a minority be brought before international courts. See, José Bengoa, Member of the Working Group on Minorities (currently Chairperson-Rapporteur), Existence and Recognition of Minorities, Working paper submitted to the UN Working Group on Minorities, Sixth session, 22–26 May 2000, UN Doc. E/CN.4/ Sub.2/AC.5/2000/WP.2, at 22. See also, ECtHR, Görzelik v. Poland, Appl. No. 44158/98, judgment (Grand Chamber) of 17 February 2004, in which, on the practice regarding official recognition by states of national, ethnic or other minorities within their population, the Strasbourg Court noted: ‘The choice as to what form such recognition should take … must,

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As a result of their ethnic, cultural, linguistic or religious characteristics, minorities can be singled out from others in the society in which they live for differential and unequal treatment and therefore regard themselves as the subject of discrimination (Equal treatment and non-discrimination). The discrimination they experience can be of many kinds: ranging from threats to personal security to discrimination in employment, housing and access to property.51 When minorities are subjected to serious inequalities in the enjoyment of economic, social or cultural rights, they tend to lose their belief in the legitimacy and responsiveness of the state. As a result of various forms of discrimination, the ensuing unease can easily facilitate the mobilisation by ethnic entrepreneurs, and escalate into ethnic or religious conflict that may quickly become unmanageable. It is therefore of pivotal importance not only to protect the identity and diversity of minority groups but also to afford and guarantee equal treatment and protection against discrimination. One of the main questions concerning minorities and the principle of equality and more particularly the prohibition of discrimination is what kind of differential measures are legitimate (and do not fall foul of the prohibition of discrimination). Of particular concern is how a balance can be struck between the concept of non-discrimination and special norms necessary to guarantee equality for minorities, the so-called ‘special measures’ or ‘positive actions’. Minorities must also be given the space to maintain and develop their linguistic, ethnic and religious identity within a diverse society (Right to identity and diversity). This third set of claims refers to the fact that minorities are often prevented from (or do not have the necessary pre-conditions for) preservation of identity, particularly in terms of language, religion, cultural practices.52 These claims can be a matter of high priority for some minority groups but of lower importance for others until they have received proper equal protection of their basic human rights. Protection of identity entails, at the very least, the right to use one’s own language in non-official contexts; the freedom

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by the nature of things, be left largely to the State concerned, as it will depend on particular national circumstances,’ and further it reiterates: ‘… [I]t cannot be said that the Contracting States are obliged by international law to adopt a particular concept of “national minority” in their legislation or to introduce a procedure for the official recognition of minority groups,’ paras 67–68. See Art. 6(2) of the FCNM: ‘The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity.’ See Art. 5 FCNM; Art. 1 of the UN Declaration on Minorities. The right to be different is proclaimed by Art. 1(2) of the 1978 UNESCO Declaration on Race and Racial Prejudice. See also, the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.

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of opinion and its expression, including the right to publish in any language without restrictions and the freedom to practice one’s religion in any way not infringing the rights of others. Language and educational policies are crucial in this respect. Denying minorities the possibility to learn their own language, or the transmission of the knowledge of their own culture, history and tradition would be a violation of the obligation to protect their identity.53 At the same time, although persons belonging to minorities are not under a legal obligation to integrate, they are aware that if they want to participate in the wider national society they have to acquire, for instance a proper knowledge of the official language. In this respect, international norms set out two general parameters: on the one hand, preserving identity, and on the other hand, integrating into the overall national society while keeping one’s identity.54 Full and effective participation in cultural, social and economic life and in public affairs is at times considered to be a so-called ‘fourth generation’ minority entitlement (Participation in cultural, social and economic life and in public affairs). Whilst a minority group needs to be able to preserve its own culture and promote its own identity, it also needs to be able to participate in the public life of the state, particularly with regard to matters affecting its culture, identity and institutions. The way this right can be organised and exercised depends, to a large extent, on the kind of minority group concerned such as for example large and closely knit minorities having a special interest in participation in the affairs of the country as a whole and in matters affecting the group and, at the same time, smaller or more dispersed groups being mainly concerned with effective participation in decisions on matters concerning them. In addition, autochthonous minorities have in some cases a legitimate claim for, though not a right, to territorial autonomy whereas new minorities stemming from migration generally do not claim such forms of autonomy but

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See, Article 14 FCNM; ACFC, Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002; Article 29 CRC; Article 13 ICESCR. See, Art. 6 FCNM. According to the Explanatory Report of the FCNM on this Article: ‘In order to strengthen social cohesion, the aim of this paragraph is, inter alia, to promote tolerance and intercultural dialogue, by eliminating barriers between persons belonging to ethnic, cultural, linguistic and religious groups through the encouragement of intercultural organisations and movements which seek to promote mutual respect and understanding and to integrate these persons into society whilst preserving their identity.’ (para 49) Emphasis added. See, also, Art. 12 FCNM that according to the Explanatory Report: ‘…seeks to promote knowledge of the culture, history, language and religion of both national minorities and the majority population in an intercultural perspective.’

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other forms of representation.55 In these contexts, the form of settlement in which the minority group live is also relevant: in the case of historical minorities living compactly, forms of territorial autonomy can be the best solution to be negotiated, whereas, where minorities live dispersed among the majority, not forming a majority in any substantial area, other forms of institutionalisation of these rights are more suitable, which may well include non-territorial, functional variants of autonomy.56 Obviously, effective participation in public life includes not only participation in political life and how an adequate representation should be devised, but also participation in cultural, social and economic life.

5. Old and New Minorities: Still a Valid Dichotomy? Along the lines of the categories presented above, the claims of old and new minorities are in many respects essentially the same: while there are differences between groups these clearly relate only to certain rights in the international catalogue. Traces can be found of this position in some international instruments. For instance, only three articles of the Framework Convention on the Protection of National Minorities, namely those pertaining to the use of the minority language in public administration (Art. 10 (2) ), and on public signs (Art. 11 (3) ), and also in relation to education in the mother tongue (Art. 14 (2) ), condition their entitlements on ‘traditional’ ties, which, according to the Explanatory Report of the Framework Convention, are not necessarily only those of historical minorities.57 According to the Framework Convention and its Explanatory Report, these three provisions may be invoked only by persons belonging to a national

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See, Article 15 FCNM; Article 5 ICERD; Article 25 ICCPR. See, ACFC, Commentary on the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs, 5 May 2008, ACFC/31DOC(2008)001; Joseph Marko, Effective Participation of National Minorities. A Comment on Conceptual, Legal and Empirical Problems, Report prepared for the Fourth Meeting of the Committee of Experts on Issues Relating to the Protection of National Minorities (DH-MIN), 19–20 October 2006, Strasbourg, DH-MIN (2006)014; Alan Phillips, ‘Creating the Conditions necessary for the Effective Participation of Persons belonging to National Minorities – Commentary focusing on the Economic Participation of National Minorities,’ in: Filling the Frame, 5th Anniversary of the entry into force of the FCNM, 30–31 October 2003, Strasbourg: Council of Europe 2003. See, Asbjørn Eide, Prevention of Discrimination and Protection of Minorities, Report submitted to the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Fiftyfifth session, 17 June 2003, UN Doc. E/CN.4/Sub.2/2003/21. See, Explanatory Report of the FCNM, at .

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minority living either traditionally in a given area or in a substantial number – for the topographical indications, these requirements are cumulative – and only if there is a real need or a sufficient demand and, with regard to the use of a minority language in relations with the administrative authorities and the teaching of and instruction in a minority language, depending on the available resources of the state concerned (‘as far as possible’). The Explanatory Report notes however that the Framework Convention deliberately refrains from defining‚ ‘areas inhabited by persons belonging to national minorities traditionally or in substantial numbers’ because it was considered preferable to adopt a flexible form of wording which will allow each state’ s particular circumstances to be taken into account. Besides, the Explanatory Report states, rather ambiguously, that the term ‘inhabited … traditionally’ – referred to by Art. 10 (2), Art. 11 (3), and Art. 14 (2) of the FCNM – ‘does not refer to historical minorities, but only to those still living in the same geographical area.’58 All other entitlements provided for in the Framework Convention relate to all individuals who may be in the position of a minority, thus old and new minorities alike, groups officially recognised as national minorities and those not recognised, individuals with or without the citizenship of the country in which the live. For example, Art. 6 of the FCNM applies clearly to all persons within a State Party’s territory: It obliges states to protect everyone from threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity. It also requires states to encourage tolerance and intercultural dialogue; Art. 7 FCNM requires States Parties to guarantee the right of every person belonging to a national minority to freedom of peaceful assembly, freedom of association, freedom of expression, and freedom of thought, conscience and religion; Art. 8 FCNM refers to the right to manifest a religion or belief and to establish religious institutions, organisations and associations. Art. 9 of the FCNM contains more detailed rules for the protection of the freedom of expression, and refers specifically to the freedom to receive and impart information and ideas in the minority language, but it also implies the freedom to receive and impart information and ideas in the majority or other languages. Moreover, this provision encourages States Parties to facilitate access to the media in order to promote tolerance and cultural pluralism. The conviction that minority groups, regardless of being old or new minorities, have some basic common claims does not mean that all minority groups have all the same rights and legitimate claims: some have only minimum

58

Ibid., para 66 (Emphasis added).

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rights, while others have or should be granted more substantial rights; some can legitimately put forward certain claims – not enforceable rights – that have to be negotiated with the majority, while others cannot. For instance, the members of any minority have the right to use their own language, in private and public, with anyone who is prepared to communicate with them in that language; but not all minorities, or not all their members, have the legitimate claim to receive state-funded education in their own language, or to use their own language in communicating with public officials. In other words, when reference is made to universal human rights or some basic norms of minority protection there is no need to distinguish between persons belonging to ethnic, religious or linguistic groups made up of recent immigrants, or those living in a given territory from time ‘immemorial’. Other claims, such as the claim to use a minority language in relations with the authorities or the claim to street names in the minority language are more specific and need to be differentiated. The difference, however, is not (only) based upon the fact that a given group belongs to the ‘old’ or ‘new’ minority category: other factors are also relevant and apply without distinction to old and new minorities alike, such as on the one hand, socio-economic, political and historical factors, legacy of past colonisation or forms of discrimination, but on the other, the fact that members of a minority live compactly together in a part of the state territory or are dispersed or live in scattered clusters, or that members of a community having distinctive characteristics have long been established on the territory, while others have only recently arrived. Minority groups, old and new minorities alike, are not indistinct monoliths but are composed of groups very different from each other. The catalogue of minority rights has been so far implemented to historical minorities without an abstract differentiation amongst various minority groups, but by taking into account other more pragmatic factors, as those mentioned above. The same approach should be applied when extending minority protection to new minority groups stemming from migration. Asbjørn Eide best summarised this point by saying: ‘The scope of rights is contextual.’59 This is also the approach followed by the Advisory Committee on the Framework Convention with regard to new minority groups originating from immigration. When examining some state reports, the Advisory Committee

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Asbjørn Eide, Protection of Minorities, Report submitted to the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Forty-fifth session, 10 August 1993, UN Doc. E/CN.4/Sub.2/1993/34, para. 27.

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considered the possibility of extending the scope of application of the Framework Convention to new minority groups.60 Due to the significant proportion of non-citizens – including migrant workers – in the total population of the countries concerned, the Advisory Committee found that it would be possible to consider the inclusion of persons belonging to these groups in the application of the Framework Convention on an article-by-article basis, and noted that the authorities of the countries concerned should consider this issue in consultation with those concerned.61 To clarify how a common but differentiated set of rights can be developed examples can be taken from the so-called ‘symbolic ethnocultural disputes’ that in contrast to ‘claims of assistance rights’, are disputes regarding aspects pertaining to the identity of a minority group that do not directly affect the ability of a group to enjoy or live according to its culture. These aspects range from how the state names groups or places to what historical figures are honoured with public buildings named after them or statues to special constitutional recognition of founding peoples or official languages. These disputes are about claims to recognition: recognition as a (or, ‘the’) founding people of the polity, or recognition as a group which has made important contributions to the state in which they live. The demand to have a minority language be made one of a state’ s ‘official’ languages (or the demand to eliminate or prevent the category of ‘official languages’ altogether) is for instance a symbolic one, albeit one that might have an important impact on the whole range of assistance language-claims. In these cases groups with long-lasting, traditional ties with a given territory, groups that were settled on a territory before the ‘social contract’ or the constitutive national agreement was reached among the national groups or groups that have made special contributions to the state where they live or with whom

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See, among others, ACFC, Opinion on Austria, 16 May 2001, ACFC/INF/OP/I/009, paras 19–20, at 34; ACFC, Opinion on Germany, 1 March 2002, ACFC/INF/OP/I/008, paras 17–18, at 40; ACFC, Opinion on Ukraine, 1 March 2002, ACFC/INF/OP/I/010, para 18. Ibid. It is worth reporting an excerpt from the reply of the German government to the ACFC on this point: ‘… [T]he objective of the Framework Convention is to protect national minorities; it is not a general human rights instrument for all groups of the population that differ from the majority population in one or several respects (ancestry, race, language, culture, homeland, origin, nationality, creed, religious or political beliefs, sexual preferences, etc.). Members of these groups are protected by the general human rights and – insofar as they are nationals – by the guaranteed civil rights. … The article-by-article approach would not only dilute the specific objective of the Framework Convention, i.e. the protection of national minorities; it would also entail the risk of creating first and second-class national minorities – that is, minorities that would benefit from the protection of all rights, and those who would be only granted selective rights,’ 12 September 2002, GVT/COM/INF/OP/I(2002)008, Ref. Art. 3, No. 73.

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the state has a legacy of past discrimination, colonisation, slavery (for instance, Afro-Americans in the US, Jews in Germany, etc), all these groups may formulate claims that, although cannot be defined as enforceable rights, acquire ‘legitimization’ and have more weight in the negotiations with majority groups as a result of the above considerations. In case of uncertainty on how to differentiate the set of rights for old and new minorities a general principle can be formulated: if it is true that the majority – minority relationship is intrinsically asymmetric due to the fact that members of minorities, old and new, are more under pressure than members of the majority to adapt to the majority society, for instance, in terms of language knowledge or recognition of qualifications, in the case of old minorities – in comparison to new minorities – this process is more demanding on the part of the majority or, in other words, more symmetric than asymmetric. The claim to use a minority language in the context of education can serve to illustrate this principle: despite the fact that both groups, old and new minorities, are under the obligation to learn the official language of the majority, in areas inhabited by old minorities members of the majority can be sometimes obliged to learn the minority language (for instance, in South Tyrol where the members of the Italian-speaking group living in South Tyrol are under the obligation to learn the minority language, German, at school and must provide evidence of the knowledge of the minority language if they want to obtain a post in the Public Administration of the Province of South Tyrol), whereas the same obligation cannot be found, at least as Europe is concerned, in areas inhabited even largely by new minorities.

6. Conclusion The differences between minority and majority groups may be profound or may be difficult to discern. That which distinguishes all minority groups is however that they manifest, albeit implicitly, a desire to maintain a collective identity which differs from a dominant culture. Culture in this context is not synonymous with particular practices, customs or manners of dress. It is a sense of communal self-identity that pervades almost every aspect of life, including work and economic activity; in other words, the ‘traditions of everyday life’.62 The existence of a minority is not ‘static’, but dependant upon the will of its members to continue to form a group distinct from the majority, and on their

62

Steven Wheatley, ‘Deliberative Democracy and Minorities’, 14(3) European Journal of International Law, 14(3), 2003, p. 508.

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capacity to recreate their own identity. This means that the existence of a minority depends to a large extent on the minority itself and the relations it has established with the majority or with other groups of the population. There may be groups of people with many objective characteristics which, because they had no desire to preserve their minority status, have been integrated or even assimilated into the majority without any problem. Conversely, there are groups with very few distinct objective traits that are indistinguishable from the rest of the population among whom they live, but that are highly conscious of forming a distinct group. The disappearance, affirmation, constitution or reorganization of a minority is considered to be a socio-cultural process: a process by which a group of people differentiates itself from the rest, maintains and perpetuates that difference and gives it cultural, organizational and political expression.63 In this respect many consider that the existence of minorities depends largely upon the presence of intellectuals, cultural leaders, creative people and artists, whose main purpose is to continue redefining the characteristics of the group in accordance with the relations it has and the situations it meets with.64 In order to exist, minorities must constantly redefine their relations with the rest of the population. If they do not do so, they cease to exist and become assimilated. As such, the subjective aspect should be applied with caution: in many cases, minorities are so intimidated by various forms of repression and forced assimilation that they do not manifest this sense of solidarity in any significant respect. Many, especially among governments’ representatives, worry that by extending the definition and protection of minority rights to migrants, they will claim the recognition of rights and powers similar to those granted to traditional minorities thereby threatening unity and diluting the protection intended for old minority groups. Yet, if it is true that in Western countries some immigrant groups are demanding certain group rights, it would firstly be incorrect to interpret immigrant demands for recognition of their identities as the expression of a desire, for instance, for self-government.65 As discussed earlier, migrants are generally aware that if they want to access the opportunities made available by

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José Bengoa, Existence and Recognition of Minorities, Working paper submitted to the UN Working Group on Minorities, Sixth session, 22–26 May 2000, UN Doc. E/CN.4/Sub.2/ AC.5/2000/WP.2, at 14. Ibid. Will Kymlicka and Magda Opalski (eds.), Can Liberal Pluralism be Exported? Western Political Theory and Ethnic Relations in Eastern Europe, Oxford: Oxford University Press 2001, p. 31–36.

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the host countries, then, they must do so within the economic and political institutions of these countries. It remains, for example, the case that immigrants must learn the official language to gain citizenship, or to gain government employment or professional accreditation. Active civic participation and effective integration amongst immigrants are essential to the economic prospects of most migrants, and indeed to their more general ability to participate in social and political life of the host country.66 Obviously, this leaves open the possibility that some leaders of ethnic groups hope that integration policies will provide a channel for obtaining separatist policy. But, as Kymlicka observes, this is a vain hope which massively underestimates the sort of support needed to create and sustain a separate societal culture: ‘[S]ustaining a certain culture is not a matter of having yearly ethnic festivals, or having a few classes taught in one’s mother-tongue as a child. It is a matter of creating and sustaining a set of public institutions through the use of instruments that are similar to those used by the majority in their programme of nation-building, i.e. standardised public education, official languages, including language requirements government employment, etc.’67 So far, there is no evidence from any of the major Western immigration countries that immigrants are seeking, and succeeding, to adopt a nationalist political agenda.68 Indeed, when attempts have been made, these were rejected by national and international courts.69 As said earlier, a general definition of minorities is based on the conviction that in spite of their differences, old and new minorities are in many respects alike. Hence both categories should be entitled to broadly similar rights (right to existence, recognition, non-discrimination, equality, effective participation in the public life). When reference is made to universal human rights or general norms of minority protection there is therefore no need to distinguish between persons belonging to ethnic, religious or linguistic groups made up of recent immigrants, or historical minorities. Other rights, such as the right 66

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See, amongst others, Communication from the Commission, A Common Agenda for Integration. Framework for the Integration of Third-Country Nationals in the European Union, 1 September 2005, COM(2005) 389 final. Will Kymlicka, States, Nations and Cultures, Spinoza Lectures, University of Amsterdam, Assen: Van Gorcum 1997, p. 52–56. Ibid. Along these lines, see also Fernand de Varennes, Minority Rights and the Prevention of Ethnic Conflicts, Paper prepared for the Working Group on Minorities, E/CN.4/Sub.2/ AC.5/2000/CRP.3, 10 May 2000, para 2.1. See, for instance, ECtHR, Kalifatstaat v. Germany, Appl. No. 13828/4, decision on the admissibility of 11 December 2006, concerning the ban of an association whose aim was the restoration in Germany of the caliphate and the creation of an Islamic State founded on sharia law.

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to use a minority language in relations with the authorities or the right to street names in the minority language are more specific and their implementation must be differentiated. The difference however is not solely based on the fact that a given group belongs to the ‘old’ or ‘new’ minority category: other factors are relevant and apply without difference to both old and new minorities, such as socioeconomic, political and historical factors. Furthermore, the fact that members of a minority live compactly together in a part of the state territory or are dispersed or live in scattered clusters, or the fact that members of a community having distinctive characteristics have long been established on the territory, while others have only recently arrived, are important factors. Clearly, it must be recognised that any decision to bring minorities of immigrant origin within the scope of application of international and/or national instruments pertaining to minorities is bound to be political. If a country is serious about wanting to integrate immigrants, then that country should not oppose the extension of the scope of application of minority provisions to new minorities. This would not entail the extension of the full range of minority protection to all minority groups indiscriminately and, moreover, it might be seen as a very appropriate political gesture, in other words, a means of underlining the importance of integration policy and of sending out a powerful message that populations of immigrant origin can be seen to be an integral, though distinctive, part of the nation.

Rationalizing the Differentiation between ‘New’ and ‘Old’ Minorities? The Role of the Margin of Appreciation Doctrine in Determining the Scope of Protection of Minority Rights Yutaka Arai-Takahashi (University of Kent) 1. Introduction In an age when the right to be different and to distinct identity has been successfully manifested under the expanded notion of the right to privacy, the notion of ‘minorities’ itself is a contestable concept,1 the ‘ownership’ of which is claimed by varied groups in a national society. Members of minorities relied upon existential rationales to advance a common set of rights, which they consider essential to their self-identification and survival.2 The purpose of this paper is to explore the role of the margin of appreciation doctrine in determining the level of protection afforded to minority rights in relation to the oft-cited distinction between so-called ‘old’ minorities and ‘new’ minorities. The paper will start with discussing the nature of the margin of appreciation doctrine, and its application in clarifying indefinite concepts of minority rights and determining specific positive obligations to give effect to rights of minorities. Having obtained insight into the modalities of the margin of appreciation in relation to minority rights regime, the paper will undertake theoretical inquiries into underlying rationales for differentiating or undifferentiating ‘old’ and ‘new’ minorities.

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Clearly, the term ‘minorities’ is not confined to holders of distinct ethno-cultural identities. It may be used to encompass members of diverse politically and socially disadvantaged groups, such as homosexuals, transsexuals, the handicapped and the mentally-ill. Indeed, this denomination may not necessarily suppose numerical inferiority of a historically disadvantaged group as compared to a politically and socially ‘dominant’ group, so that women may be categorised as a minority in relation to men. Such rights encompass political rights (political participation and autonomy), cultural rights (identity, cultural security, language and education), religious rights, and anti-discrimination (equal treatment), and in case of indigenous populations, the right relating to land.

Kristin Henrard, Double Standards Pertaining to Minority Protection, pp. 219–242. © 2010 Koninklijke Brill NV. Printed in the Netherlands.

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2. Classification of the Genres of Minority Rights It has been proposed that the catalogue of minority rights may be distinguished between four generations of rights, which correspond to their historical developments.3 The first generation rights relate to existential rationale of minority groups such as their right to existence and survival. The second generation rights refer to the rule of anti-discrimination and equality rights, which are equipped with clear and hard substantive obligations and fully anchored in the bedrock of customary international law. The third-generation rights are the category of rights that yield obligations to protect and foster minority identity and diversity, the obligations embodied in the provisions may, at first glance, be programmatic. These rights can be gradually given more specific meaning through the work of the national and international monitoring bodies.4 The conceptual framework of these rights is underpinned by the keenly felt need to address the problem of minorities being prevented from, or dispossessed of necessary preconditions for, preserving their identity (language, religion and cultural practices).5 Langue and educational policies prove of pivotal importance, often requiring states not only to abstain from interference but also to implement affirmative measures.6 The ‘fourth generation’ rights relate to the full and effective participation of minorities in cultural, social and economic life, and in public affairs. This category of minority rights should not, however, be confused with rights associated with a soft law. Instead, they ought to be deemed foundational in nature,7 as their right to devise forms of

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T. Malloy, R. Medda-Windischer, E. Lantschner and J. Marko, Indicators for Assessing the Impact of the Framework Convention for the Protection of National Minorities in its State Parties, Report prepared for the Conference: Enhancing the Impact of the Framework Convention, 9–10 October 2008, Strasbourg, Council of Europe p. 36. Compare M. Weller, ‘A Critical Evaluation of the First Results of the Monitoring of the Framework Convention for the Protection of National Minorities 1998–2003’, Report prepared for the Workshop 1: Creating the Conditions necessary for the Effective Participation of Persons belonging to National Minorities, Filling the Frame, 5th anniversary of the entry into force of the Framework Convention for the Protection of National Minorities, Strasbourg, 30–31 October 2003, p. 2–3. Weller divides the minority rights into three categories: (i) the first generation rights relate to the anti-discrimination rule and equality rights; (ii) the second-generation rights yield obligations to protect and foster minority identity; and (iii) the ‘third generation’ rights relate to the effective participation of minorities in cultural, social and economic life, and in public affairs: ibid. Weller, ibid., p. 3. Malloy et al., supra n. 3, p. 36–37. Ibid. Weller, supra n. 3, p. 3.

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their institutions and representation remains crucial to the enhanced effectiveness of other generations of minority rights. Of greater importance to determining the scope of the margin of appreciation, especially in respect of positive duties, is the distinction between ‘general human rights’, and so-called ‘enhanced’ or ‘core’ minority rights.8 General human rights are basic rights inferred from the catalogue embodied in the general instruments of human rights law, such as the freedom of association, freedom of expression, freedom of peaceful assembly, freedom of thought, conscience and religion, respect for privacy and prohibition of discrimination. Enhanced minority rights are entrenched in instruments dealing specifically with minority rights and entailing resource implications. They are more demanding in terms of requiring state authorities to set up specific infrastructure or to take specific measures to meet minorities’ needs relating to language, education, cultural life, and participation in public life. While the general human rights, of necessity, entail positive duties on the national authorities, it is the ‘enhanced minority rights’ that are much more prone to affirmative obligations and of special pertinence to ‘margin analysis’.

3. ‘Old’ and ‘New’ Minorities, and Narrow Interpretation of ‘National Minorities’ In the discourse on international human rights law, a distinction has often been drawn between so-called ‘old’ minorities and ‘new’ minorities. The term ‘old’ minorities refer to the ‘homeland’ minorities who ‘were settled on their territory prior to its becoming part of a larger, independent country’.9 On the other hand, ‘new’ minorities are those who ‘were admitted to a country as immigrants after it achieved legal independence’.10 Michael Walzer refers to two sets of distinctions for the purpose of achieving ‘just treatment’ of ‘national minorities’: (i) ‘between territorially concentrated and dispersed minorities’; and (ii) ‘between minorities radically different from and those that are only marginally different from the majority population’.11 While embracing

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See, Council of Europe, European Commission for Democracy Through Law (Venice Commission), Report on Non-Citizens and Minority Rights, 15–16 December 2006, CDL-AD(2007)001, para 106. W. Kymlicka, ‘The Internationalization of Minority Rights’, in: Int’l J. Const. L., 6, 2008, 1, p. 7. Ibid., p. 7. M. Walzer, Thick and Thin – Moral Argument at Home and Abroad, Notre Dame: University of Notre Dame Press 1994, p. 73.

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indigenous populations within the notion of minorities, Walzer’s disaggregation of national minority groups seems to stop short of comprising ‘new’ minorities. With respect to ‘old’ minorities, not only indigenous populations but even ‘national minorities’ fall within this category. With respect to national minorities, the European democracies traditionally favoured an integrationist, or at worse outright assimilationist policy. In contrast, predominantly immigrationbased democracies such as the United States, Canada and Australia have displayed a willingness to embrace the ‘accommodationist’ approach, which would require ‘accommodat[ing] diversity through minority-specific institutions’.12 There was concern that minority groups could proceed with claims to self-determination,13 with profound constitutional implications on national sovereignties.14 However, the trend discernible in many western democracies since 1990s is to treat not only indigenous peoples but also national minorities as ‘old minorities’ entitled to an ‘accommodationist’ approach.15 As regards new minorities, they are generally comprised of immigrants and lawful residents who constitute a minority cohort relative to the majority of the host state. Adding further complexity to this categorisation is the question of citizenship. Ought an individual person to be a citizen of a host state to benefit from the minority rights regime? While there are some non-citizen individuals who are affiliated with an ‘old’ minority group residing in a specific territory,16 many ‘new’ minorities have acquired citizenship of the receiving states. Yet, among new minorities, a large number of migrant workers and refugees remain unnaturalized. These minority groups, together with stateless members of minority groups, can nonetheless be comprised within an expanded framework of ‘new minorities’.17

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15 16

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Kymlicka, supra n. 9, p. 9. See also J. McGarry, B. O’Leary and R. Simeon, ‘Integration or Accommodation? – the Enduring Debate in Conflict Regulation’, in: S. Choudhry (ed.), Constitutional Design for Divided Societies – Integration or Accommodation?, Oxford: Oxford University Press 2008, 41 p. 87. Kymlicka criticizes the conceptual inconsistency of the United Nations’ ‘integrationist’ approach to national minorities (the approach applicable to immigrant minorities), which is based on ‘integration of all citizens on a nondiscriminatory basis into shared national institutions’: ibid. D. McGoldrick, ‘Multiculturalism and its Discontents’, in: HRLRev, 5, 2005, 27, p. 31. Ibid., p. 31; and P. Thornberry, ‘Self-Determination, Minorities, Human Rights: A Review of International Instruments’, in: ICLQ, 38, 1989, p. 867. Kymlicka, supra n. 9 p. 9. European Commission for Democracy Through Law (Venice Commission), Report on NonCitizens and Minority Rights, 15–16 December 2006, para 41. For assessment of rights of migrant workers and other ‘non-citizens’, see D. Weissbrodt, ‘The Protection of Non-Citizens in International Human Rights Law’, in: R. Cholewinski,

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In the context of the Council of Europe, the Framework Convention for the Protection of National Minorities fails to provide definition of ‘national minorities’. Traditionally, the general understanding was to confine this denomination only to ‘old’ minorities, to the exclusion of immigrant groups,18 as seen in Article 1 of the proposed ((but aborted) Additional Protocol on the Rights of National Minorities to the European Covention on Human Rights, adopted under the Parliamentary Assembly, Recommendation, 1201 (1993).19 According to this provision, the personal scope of this additional protocol was confined only to ‘a group of persons in a state who: (a) (b) (c) (d)

reside on the territory of that state and are citizens thereof; maintain longstanding, firm and lasting ties with that state; display distinctive ethnic, cultural, religious or linguistic characteristics; are sufficiently representative, although smaller in number than the rest of the population of that state or of a region of that state; (e) are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their traditions, their religion or their language’. This narrow definition was endorsed by the joint concurring opinions of the judges of the Strasbourg Court in Gorzelik v. Poland, where certain electoral privileges linked to an association of Silesian minority group were disputed.20 3.1. Distinguishing ‘Old’ and ‘New’ Minorities Differentiating ‘old’ and ‘new’ minorities can trace back to the origin of the minorities rights protection under international law in the post-World War I order. Macklem argues that the rudimentary system of safeguarding minority rights that operated in the inter-war period in Europe was the product of distribution of sovereign powers and legitimacy. As a mechanism enforcing the distributive justice of particular social goods (minority rights), this system was highly policy-based and anchored in particular geopolitical paradigm. It contemplated international monitoring of minority rights protection only in respect of the states that were built on the former territories of the three defeated Central Powers. In that sense, the genesis of the minority protection

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R. Perruchoud and E. MacDonald (eds.), International Migration Law, The Hague: T.M.C. Asser Press 2007, p. 221. P. Keller, ‘Re-thinking Ethnic and Cultural Rights in Europe’, in: OJLS, 18, 1998, 29, p. 44. Council of Europe, Parliamentary Assembly, Recommendation 1201 (1993) on an additional protocol on the rights of national minorities to the European Convention on Human Rights (assembly debate on 1 February 1993). ECtHR, Gorzelik and Others v. Poland, Judgment of 17 February 2004, Joint Concurring Opinion of Judges Costa and Zupančič joined by Judge Kovler, para 8.

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can be described as epiphenomenal and historically contingent in international legal order.21 Surely, the limited scope of application of minority rights has been broadened to evolve into the universal system within the UN framework. Yet, the historically contingent nature of minority rights is discernible even in respect of the Council of Eruope’s Framework Convention, which can be deemed an ‘offshoot’ of the Organisation for Security and Co-operation in Europe (OSCE) in response chiefly to turbulent ethnic conflicts in former Yugoslavia and other former communist countries of Europe.22 Against such historical background, several substantial rationales can be proposed. First, it is still not judged outright illegitimate to distinguish ‘new’ and ‘old’ minorities with respect to the specific minority rights that have special implications on national sovereignty, such as the right to return to home countries, and the right to vote and stand for election at a national level.23 Even so, these rights are among the diminishing categories of the rights that are still subject to the exclusionary rule based on citizenship.24 Second, it is argued that the distinction between ‘old’ and ‘new’ minorities can be warranted for preserving ‘constitutional identity’ and distinct culture of host states against threat of globalization and value-uniformity. Indeed, the Advisory Committee of the Framework Convention for the Protection of National Minorities (ACFC) in itself has recognised the distinction, stating that ‘the application of the Framework Convention…to persons belonging to different national minorities often requires differentiated treatment according to their specific situation and needs’.25 Habermas notes that mass migration and identity conflicts of a state system have often resulted in the fear of ‘disconnection of the traditional, constructive assemblage of political and legal systems, national traditions’.26 This fear can be particularly warranted in case of a tiny ethnic minority group whose cultural identity is threatened by immigrants from a dominant neighbouring state. Nevertheless, except for such a special case, it

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P. Macklem, ‘Minority in International Law’, in: Int’l J. Const. L., 6, 2008, 531, p. 552. Keller, supra n. 18, p. 44. See, for instance, the Inter-American Court of Human Rights, in its Advisory Opinion on Juridical Condition and Rights of Undocumented Migrants, ruled that ‘States may also establish mechanisms to control the entry into and departure from their territory of undocumented migrants, which must always be applied with strict regard for the guarantees of due process and respect for human dignity’: Advisory Opinion OC-18/03, 17 September 2003, requested by Mexico, para 119. See European Commission for Democracy Through Law (Venice Commission), Report on Non-Citizens and Minority Rights, 15–16 December 2006, para 95. ACFC, Second Opinion on Germany, 1 March 2007, para 27. J. Habermas, ‘Toward a Cosmopolitan Europe’, in: Journal of Democracy, 14, 2003, p. 86 (hereinafter referred to as Habermas 2003b, p. 89.

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can be countered that the risk of alienation or isolation leading to tensions may be augmented if ‘new’ minorities are excluded from minority rights regime simply because they are not citizens of the residential states. Third, with respect to the claim for specific ‘core minority rights’ entailing resource implications, such as the rights to education and language, and less cogently, the right to participation in cultural life, it is justifiable to reserve more privileged status to ‘old’ minorities as compared to ‘new’ minorities. Further, assigning special privileges and rights to ‘old’ minorities may be justified as a form of compensation and redress for historical injustice done to such minorities by a dominant majority of the territorial state.27 Shared consciousness of victimization among historically oppressed minority groups28 resurfaces through upbringing and collective memory and continues to form a crucial facet of members’ self-identification. This rationale is of special pertinence to debates over positive obligations. The Human Rights Committee (HRC), in its General Comment No. 23, observed that positive measures designed to rectify existing social, economic, political or cultural conditions that have impaired potentials for minority groups effectively to tap into their rights under Article 27 ICCPR constitute a legitimate differentiation, provided that they satisfy ‘reasonable and objective criteria’.29 To what extent can such rationales be equally applied to enhance rights of members of ‘new’ minorities? If one argues that members of national minorities who are victims of genocide and crimes against humanity on European soil (incontrovertibly, members of the Jewish or the Roma group) provide morally unassailable cases for according them special rights based on ‘national minority’ status, then there is no less cogent reason to rebuff similar treatment of ‘new’ minority members whose country of origin was in the past the victim of egregious violations of human rights committed by a former colonial power.30

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Compare the argument presented by Margalit and Raz, according to whom ‘a history of persecution’, which is prominent in debates over self-determination, ‘is neither a necessary nor a sufficient condition for the instrumental case for self-government’, as ‘[s]uffering can be the result of neglect or ignorance of or indifference to the prosperity of a minority group by the majority’: A. Margalit and J. Raz, ‘National Self-Determination’, in: The Journal of Philosophy, 9, 1990, 439, p. 450. J. Habermas, ‘Intolerance and discrimination’, in: Int’l J. Const. L., 1, 2003, 2 (hereinafter referred to as Habermas 2003a, p. 10. HRC, General Comment No. 23: The rights of minorities (Art. 27): 08/04/94, CCPR/C/21/ Rev.1/Add.5, para 6. Compare discussions on unjust economic enrichment resulting from colonial exploitation in the context of the principle of self-determination as a form of ‘instrumental justice’. See Margalit and Raz, supra n. 27 p. 460. One can reckon, for instance, the Congolese immigrants, workers or refugees in Belgium, millions of whose forebears more than thirty years before

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4. The Processes in Which the Margin of Appreciation Operates in Relation to Minority Rights 4.1. Overview What Letsas describes as the ‘substantive concept’ of the margin of appreciation doctrine is set in motion to rationalize the relationship between rights of individual persons and the collective interests.31 Quintessentially, this in turn suggests the process of ‘structured balancing’32 between a right and a public good, or of reconciling clashes between rights. The margin of appreciation doctrine, due to its contextual nature,33 makes its operational effectiveness depend largely upon the interplay of a variety of evaluative standards and interpretive principles.34 Faced with its incapacity internally to determine ‘hard cases’, the supervisory organs of human rights treaties may feel more at ease at fiddling with its review standard than relying on extralegal backgrounds and meta-legal factors to explicate controversial decisional choice.35 Analytically, the main contours of normative debates on the margin of appreciation as a policy standard can be contemplated in three functional processes: (i) the process of fact-finding and ascertainment of fact; (ii) the process of evaluating the normative scope of a given right; and (iii) the process of assessing the means to achieve desired social ends.36 Underlying all three

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the outset of the Holocaust were the victims of ‘genocidal’ atrocities committed under the auspices of King Leopold’s Belgium: For the scale of mass murder (arguably over ten million deaths) in Belgian Congo, see A. Hochschild, King Leopold’s Ghost – A Story of Greed, Terror, and Heroism in Colonial Africa, New York: Houghton Mifflin 1998. Letsas (2006), supra n. 14, p. 709. S. Greer, ‘ “Balancing” and the European Court of Human Rights: A Contribution to the Habermas-Alexy Debate’, in: Cambridge Law Journal, 63, 2004, 412, p. 434. With respect to the concept of reasonableness, MacCormick considers that this concept taken out of context is an example of what Julius Stone describes as ‘legal categories of illusory or indeterminate reference’: N. MacCormick, Rhetoric and the Rule of Law – A Theory of Legal Reasoning, Oxford: Oxford University Press 2005, p. 165. See J. Stone, Legal System and Lawyers’ Reasonings, London: Stevens & Sons 1964, Chapters 7 and 8; and W. Twining, ‘The Province of Jurisprudence Re-examined – Problems of Generalization in a Global Context’, Julius Stone Memorial Lecture 2000, available at http://www.ucl.ac.uk/laws/jurisprudence/ docs/twi_jstone.pdf (last visited on 22 October 2008). In the ECHR context, most notably these include the proportionality principle and evolutive interpretation. Compare J. Habermas, Between Facts and Norms – Contributions to a Discourse Theory of Law and Democracy (translated by W. Rehg), Cambridge: MIT Press 1996, p. 200–202, where he provides useful theoretical explanations for the approaches followed by positivists and hermeneutics in assessing the role of judges faced with indeterminate laws. Y. Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’, in: European Journal of International Law, 16, 2005, 907, p. 917 and p. 935.

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processes is the notion of subsidiarity, which alludes to the consideration of judicial economy and to the lack of democratic accountability of an international supervisory organ.37 The concept of subsidiarity is closely intertwined with the idea of distributive justice. It reifies the received wisdom regarding the distribution of powers between the supranational judiciary and national authorities.38 Further, the operational spheres of the doctrine are determined largely by the intrinsic notion of ‘normative contestability’ of human rights, the notion that is rooted in value-pluralism39 and specifically pertinent to issues of minority rights. 4.2. Ambiguity of Language in Normative Standards of Minority Rights The normative standards of minority rights guaranteed in human rights instruments are often couched in ambiguous terms. Such conceptual uncertainty does not, however, necessarily relegate relevant provisions to ones of programmatic nature. The relevant provisions, including Article 27 ICCPR, embody substantive rights for individual persons. Even so, the conceptual indefiniteness of programme-type provisions inevitably leaves national governments a margin of appreciation.40 By applying the margin of appreciation, the monitoring bodies of human rights treaties are deemed to acknowledge the transparent and fair process in which public deliberations have taken place at a national level.41 Confronted with an immanently wide spectrum of discretion, it is the structure, terms and underlying values of pertinent norms on minority rights that can provide a framework of constraints on such discretionary powers.42 In essence, the prima facie case for national discretionary powers can be

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Y. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, Antwerp: Intersentia 2002, p. 239–241. Petzold, H ‘The Convention and the Principle of Subsidiarity’, in: MacDonald, RStJ, Matscher, F and Petzold, H (eds.), The European System for the Protection of Human Rights Martinus Nijhoff 1993, 41, p. 49. G. Beck, ‘Human Rights Adjudication under the ECHR between Value Pluralism and Essential Contestability’, in: EHRLRev 2008, 214, p. 216 and p. 230. European Commission for Democracy Through Law (Venice Commission), Report on NonCitizens and Minority Rights, 15–16 December 2006, CDL-AD(2007)001, para 131. In the ECHR context, where the normative scope and meaning are indefinite, the Strasbourg Court becomes receptive to the argument that national authorities are better placed to ascertain the extent to which rights of minority members are to be accommodated to those of the majority: Keller, supra n. 18, p. 52–53. For the same view in the ECHR context, see S. Wheatley, ‘Minorities under the ECHR and the Construction of a ‘Democratic Society’ ’, in: PL 2007, 770, p. 790. Compare Greer’s discussion of the judicial discretion in the ECHR context: Greer 2004, supra n. 32 at 424.

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sustained in determining two specific questions: (i) the personal scope of application in relation to the ‘ethnic, religious or linguistic minorities’ within the meaning of Article 27 ICCPR, and to ‘national minorities’ under the Framework Convention; and (ii) the type and extent of positive measures that need to be taken to given effect to minority rights, the issue that are at the heart of minority-specific rights. With respect to the Framework Convention, as Wheatley notes,43 the Convention is sprinkled with ambiguous terms, such as ‘adequate measures’,44 ‘appropriate measures’,45 ‘adequate opportunities’,46 ‘the conditions which would make it possible to use the minority language’,47 ‘traditionally or in substantial numbers’,48 and ‘sufficient demand’.49 Some provisions of the Convention are couched in a general manner and lacking in substantive clarity and concreteness. Indeed, the Explanatory Report on the Framework Convention for the Protection of National Minorities in itself goes to a remarkable length to recognise that the Convention includes ‘mostly programmetype provisions setting out objectives which the Parties undertake to pursue’ and ‘which will not be directly applicable, leave the States concerned a measure of discretion in the implementation of the objectives…thus enabling them to take particular circumstances into account’.50 Indeterminacy in legal norms for minority rights is compounded by several factors. Even in the regional context of the Council of Europe, it can be argued that there lack cultural, social or moral values in common to sustain the juridical order, which would help identify and guide concrete meaning of such ambiguous norms.51 This line of argument is redolent of the hermeneutics’ postulation that the pre-understanding of judges, which is shaped by ‘the shared topoi of an ethical tradition’ serves to forge ‘the flexible connections between norms and states of affairs’ on the basis of ‘received, and historically

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S. Wheatley, Democracy, Minorities and International Law, Cambridge: Cambridge University Press 2005, p. 57–58. The Framework Convention for the Protection of National Minorities, Article 4(2). Ibid., Article 6(2). Ibid., Articles 12(2), 14(2). Ibid., Article 10(2). Ibid., Articles 10(2), 14(2). Ibid., Articles 11(2), 14(2). The Framework Convention for the Protection of National Minorities and the Explanatory Report, para. 11. See also ibid., paras 64 (concerning Article 10(2) ) and 75 (relating to Article 14(2) ), in which there is recognition that these provisions ‘ha[ve] been worded very flexibly, leaving Parties a wide measure of discretion’. Wheatley 2007, supra n. 41, p. 789.

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corroborated principles’.52 Clearly, the absence of such shared topoi of moral fabrics underlying the espace juridique can be more forcefully said of the universal instruments of minority protection. In contrast, the lack of common moral order can be taken as a positive feature of the social order of the humanity, which sustains richness and diversity in cultural values against the odds of the accelerating process of globalisation and ‘value-uniformization’. Further, normative indefiniteness does not critically disable the impetus for placing minority rights regime as such at an upper echelon of international legal order. The Badinter Arbitration Commission audaciously categorized the ‘rights of peoples and minorities’ as ‘peremptory norms of general international law’.53 Indeed, any lacunae in the treaty-based rules on minority rights and lingering doubt over effectiveness of these rules can be resolved by conceptualizing higher-order ‘constitutional’ principles in the international legal order.54 Turning back to the ambiguous nature of programme-type provisions on minority rights, this is indicative of some flexibility allowed in evaluating both the level of protections to be afforded to specific, ‘enhanced’ minority rights and the personal scope of protections of those rights. As will be analyzed below, in assessing the protection of minority rights for new minorities, a flexible and nuanced approach is markedly preferable to the rigidly uniform and systematic approach based on a fixed criterion such as citizenship, which may entail the risk of arbitrary exclusion of minority groups.55 This can be especially true in the case of a state succession emanating from the dissolution of a federal state, or of the break-up of a multi-ethnic state, which results in the sudden loss of citizenship of certain minority groups (the phenomenon of

52 53

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Habermas 1996, supra n. 35, p. 200. Conference on Yugoslavia Arbitration Commission: Opinions on Questions Arising from the Dissolution of Yugoslavia, Opinion No. 1, para 1(e); (1992) 31 ILM 1488 at 1495–96, emphasis added. In the context of secession, the Commission observed that ‘the peremptory norms of general international law and, in particular, respect for the fundamental rights of the individual and the rights of peoples and minorities are binding on all the parties to the succession’. Admittedly, the Commission’s across-the-board legal characterisation, which seems to equate all ‘the fundamental rights’ of individuals to jus cogens may be contested. Compare Koskenniemi’s frustration over obtaining both concreteness/effectiveness of international legal rules and their normative independence from politics: M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument, reissued Cambridge: Cambridge University Press 2005. European Commission for Democracy Through Law (Venice Commission), Report on NonCitizens and Minority Rights, 15–16 December 2006, paras 136, 137, and 143.

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‘minoritized majorities’)56 pervasively seen in the post-communist, Central and Eastern European societies.57 4.3. Positive Obligations, Minority Rights and the Margin of Appreciation Positive Obligations in Relation to the Protection of Minority Rights in General Are there any distinct patterns of legal finesse when the margin of appreciation is deployed to ascertain specific positive duties to give effect to minority rights? The idea of positive obligations58 should be comprehended as the shift in emphasis from a ‘difference blindness’ approach to a ‘difference awareness’ approach in safeguarding minority rights. In essence, positive duties are derived from the demands of respect and public recognition of culture and identity of particular minority groups.59 The traditional, ‘difference blind’ model of equality, which is predicated on the laissez-faire concept of states and on an individual minority member’s right to enjoy cultural belief and practice free from discrimination, is not deemed sufficient to address a multitude of demands made by minority members. Indeed, genuine and effective equality can be attained only through the ‘difference awareness’ approach based on the equality of respect and recognition.60 Positive Obligations and the Margin of Appreciation With respect to the instruments specifically dealing with minority rights regime, such as Article 27 ICCPR and the Framework Convention, there is much of ambiguity about what positive measures need to be taken to achieve effective equality and guarantee of minority cultures.61 The lack of specific and

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60 61

This phenomenon refers to majorities that continue to act as if they remain feeble and victimized minorities while living in existential fear for their cultural survival: W. Kymlicka, Multicultural Odysseys – Navigating the New International Politics of Diversity, Oxford: Oxford University Press 2007, p. 185. Kymlica considers that this term was coined by Tove SkutnabbKangas: ibid., p. 185, n. 11. See, European Commission for Democracy Through Law (Venice Commission), Report on Non-Citizens and Minority Rights, 15–16 December 2006, para 137. For analysis of positive obligations in the context of the ECHR, see C. Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention, Berlin: Springer 2003; and A. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, Oxford: Hart 2004. A. Gutmann, ‘Introduction’, in: C. Taylor (edited by A. Gutmann), Multiculturalism: Examining the Politics of Recognition, Princeton: Princeton University Press 1994, 3, p. 8. Keller, supra n. 18, p. 39–42. In the context of the Framework Convention, see ibid., p. 32.

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detailed list of positive measures can be explicated by ‘a deeper anxiety that the demand for ethnic diversity and autonomy will eventually overwhelm the common interest and destroy the essential bonds of social cohesion and national solidarity.’62 Even so, such legitimate concern must not foreclose or marginalise minority cultures by allowing states to associate the ‘protected core interests’ under the relevant instrument with the preservation of ‘a dominant cultural identity’.63 Issues of positive obligations are closely intertwined with the question of indefinite norms concerning minority rights protection. Implementing the minority rights based on the ideas of protection, assistance and promotion (the so-called second generation minority rights) can yield considerable leeway to national authorities.64 Indeed, even the ‘first-generation minority rights’ such as equality and non-discrimination entail decisional choice as to positive measures to achieve ‘full and effective equality’, the term susceptible to varying interpretation. The Margin of Appreciation and ‘General Human Rights’ of Minorities With regard to the ‘general human rights’ which are derived from general instruments of human rights, the margin of appreciation can be considered ingrained. For instance, although the Framework Convention is not equipped with limitations and derogation clauses that can be invoked to trump rights of minorities, the clauses that are generally prone to varying scope of margin of appreciation, Article 23 provides that cases of conflict between the ECHR and the Framework Convention are to be resolved by reading the latter consistently with the obligations under the former. What would, however, be more controversial is the question of the role of the margin of appreciation in assessing minority-specific rights (‘enhanced minority rights’). Be that as it may, with respect to ‘general human rights’, it may be argued that the margin of appreciation doctrine would pose a serious danger to the protection of minority. When its rational basis is rooted principally in deference to legitimacy of democratic governments,65 the doctrine might be considered to endorse a ‘skewed’ majority-minority relationship in

62 63 64 65

Ibid., p. 51. Ibid. Ibid., p. 53. In their dissenting opinion in Karatas v. Turkey, Judges Wildhaber, Pastor Ridruejo, Costa and Baka observed that ‘the democratic legitimacy of measures taken by democratically elected governments commands a degree of judicial self-restraint’: ECtHR, Karatas v. Turkey, Judgment of 8 July 1999, Joint Partly Dissenting Opinion of Judges Wildhaber, Pastor Ridruejo, Costa and Baka.

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democracy.66 Minority members would be divested of means to redress injustice through democratic political procedures. That would signal a wrong message that the treaty-based monitoring bodies are abandoning their institutional role as the external guarantors against the ‘tyranny of the majority’.67

5. Minority Rights, Deliberative Democracy and the Margin of Appreciation As a theoretical exploration for rationales geared towards lowering the barrier between ‘old’ and ‘new’ minorities, this section firstly examines the implications of the concept of deliberative democracy on minority rights regime. It then turns to the ideas of cultural identity and value-pluralism as underlying rationales for sustaining a continued (albeit weakened) pattern of differentiating minorities cohorts. The concept of deliberative democracy is ‘an attempt to institutionalize discourse as far as possible as a means of public decision making’.68 It is predicated on the value-laden process of building common consciousness, with strong emphasis on civic constitutional identity. This process must adhere to the ‘norm of equal inclusion of every citizen’,69 or to the principles of toleration and inclusiveness.70 The latter principles are akin to Ronald Dworkin’s conceptual framework of democracy within which the notions of ‘equal concern’ and ‘respect’ figure as the lynchpin for resolving ties between conflicting rights or legal rules generally.71 Manifestations of pluralistic values through claims of minority rights can be comprehended in the on-going, multifaceted processes of democratic deliberation.72 Wheatley, while locating the demands of minority protection and 66

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E. Benvenisti, ‘Margin of Appreciation, Consensus and Universal Values’, in: New York University Journal of International Law and Politics, 31, 1999, 843, p. 847 and p. 849–850. Wheatley (2007), supra n. 41, p. 791. In the ECHR context, Wheatley argues that ‘the limited relevance of the ECtHR in relation to majority/minority conflicts is explicable principally by the operation of the margin of appreciation doctrine and the ‘balance’ metaphor’. Viewed in that way, deference to democratic majority on questions of culture appears not to dovetail with the object and purpose of the ECHR: R. Alexy, ‘Balancing, Constitutional Review, and Representation’, in: Int’l J. Consti. L., 3, 2005, 572, p. 579. Habermas 2003a, supra n. 28, p. 3–4. Ibid. R. Dworkin, Law’s Empire, Oxford: Hart, 1986, p. 200; and ‘Do Liberal Values Conflict?’, in: R. Dworkin, M. Lilla and R.B. Silvers (eds.), The Legacy of Isaiah Berlin, New York: New York Review of Books 2001, 73, p. 87. See also Beck, supra n. 39, p. 223. The deliberative model is congruent to what Sadurski terms as the concept of ‘democracyplus’ (or ‘value-enhanced democracy’), according to which democracy must be predicated

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cultural diversity within the universalizing project of human rights law, stresses ‘evidence of inclusive, consensus-seeking deliberations’ among responsible agents (national or local governments and minority groups) in the deliberative process premised on ‘the principle of public reason’.73 Renegotiations and ‘constitutional’ resettlement become necessary when ‘injustice’ of unwarranted constraint on the freedoms and dignity of minority groups stifles their capacity to flourish meaningfully in their private and public autonomy.74 In the context of ‘deliberative universalism’, respect should be given to all reasonable opinions ‘without assuming that the provisional resolution of a fundamental moral conflict can be politically neutral in its rationale or result’.75 Such ‘constitutionalizing’ processes of deliberation are saliently seen at national76 and European levels. At the universal level, the process of normative deliberation undertaken by the supervisory bodies of UN treaty-based bodies, even though not anchored in the democratic bedrock, provide meaningful suggestions to deal with the complexity of competing minority rights claims. Indeed, these deliberative processes facilitate the neutralization and reconciliation of competing worldviews of divergent minority groups. A ‘normative consensus’ reached in such processes in the cognitive sense77 helps construct a common value-framework tolerating equal enjoyment of rights by ‘others’, including rights of immigrants belonging to ethno-cultural traditions different from those of the majority of the host state.78 This conceptual model can lend succour to the nuanced and flexible approach to ‘new minorities’, which does not draw systematically on

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not only on correct procedures, but also on certain substantive values, such as human dignity, liberty and equal concern for all, in order to be ‘fully legitimate’: W. Sadurski, ‘Law’s Legitimacy and ‘Democracy-Plus’ ’, in: Oxford J. Legal Stud., 26, 2006, 377, p. 377. In specific regard to minority rights, he proposes the ‘criteria of a democratically legitimate outcome’ and condemns the democratic majority’s decision to deprive ethnic minority members of their rights as illegitimate and contrary to ‘the foundational values’ of democracy: ibid., p. 397. Wheatley 2007, supra n. 41, p. 792. Habermas 1996, supra n. 35, p. 419. A. Gutmann, ‘The Challenge of Multiculturalism in Political Ethics’, in: Philosophy and Public Affairs, 22, 1993, 171, p. 199. Gutmann’s view is surely open to an objection ‘why should the agreement only of those with reasonable views be required?’: J. Raz, ‘Disagreement in Politics’, in: American Journal of Jurisprudence, 43, 1998, 25, p. 33. See also Rawls’ ‘liberal principle of legitimacy’, according to which the ‘fully proper’ political power can be found only when exercised in compliance with the constitution, the essence of which is agreed upon by ‘free and equal citizens’ with common human reason: J. Rawls, Political Liberalism, New York: Columbia University Press 1993, p. 137. Habermas 2003a, supra n. 28, p. 3–4. Ibid.

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the citizenship criterion in assessing the personal scope of minorities, the approach to which the appraisal now turns. ‘New’ Minorities and the Liberal Tendencies The restrictive approach premised on the citizenship criterion has been challenged at different levels. At least with respect to ‘general human rights’ for minorities, the practice of international human rights law has demonstrated an inclusive approach to ‘new’ minorities. At the UN level, the HRC, in its General Comment No. 23, specifically obliterated the requirement of citizenship in relation to the personal scope of application of Article 27 ICCPR.79 It has underscored that individual members that can benefit from this provision do not hinge on their permanent resident status, so that migrant workers or even visitors, insofar as they constitute ethno-cultural minorities in a host state, are entitled to the rights guaranteed under this provision.80 The Committee on the Elimination of Racial Discrimination (CERD) has corroborated this view, stating that ‘Under the Convention [International Convention on the Elimination of All Forms of Racial Discrimination], differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim’.81 Further, the InterAmerican Court of Human Rights has stressed the jus cogens status of the principle of non-discrimination and the right of equality, and recognised the applicability of these to all residents regardless of immigration or migrant status, so as to benefit even undocumented migrants.82 However, apart from the general rights (freedom from discrimination, and right to a distinct pattern of cultural life), it remains unsettled to what extent such an undifferentiated approach evolving under Article 27 ICCPR and the ACHR can be applied to the ‘enhanced minority rights’ entailing specific positive duties on states.83 79

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HRC, General Comment No. 23: The rights of minorities (Art. 27): 08/04/94, CCPR/C/21/ Rev.1/Add.5, para 5.1. Ibid., para 5.2. CERD, General Recommendation No. 30, Discrimination Against Non-Citizens, para 4. See also ibid, para 13. Inter-American Court of Human Rights, Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion OC-18/03, 17 September 2003, requested by Mexico, paras 100– 101, 111, 119 and 127. The Court, nonetheless, recognized lawful distinction between nationals and migrants in relation to rights concerning political participation and immigration, on the proviso that ‘this differential treatment is reasonable, objective, proportionate and does not harm human rights’: ibid., para 119. Wheatley proposes that the right to ‘respect for a distinctive way of life’ under Article 27 ICCPR, or under Article 8 ECHR, should benefit even the persons belonging to ‘new’

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In the European context, the recent trend marks a clear departure from the approach predicated on rigid criteria, including citizenship. Many Recommendations adopted by the Parliamentary Assembly of the Council of Europe (PACE) have come to make no reference to the citizenship requirement.84 With regard to the Framework Convention, admittedly, the ACFC has recognised a margin of appreciation of national authorities in determining the personal scope of application while taking into account their specific historical circumstances.85 Yet, it is quick to pronounce that this margin must be exercised in a manner compatible with general principles of international law and the ‘fundamental principles’ embodied under Article 3, including the prohibition of ‘arbitrary or unjustified distinctions’.86 The ACFC has adopted a host of opinions indicating a nuanced approach, calling on states to apply the Framework Convention to consider its applicability, on an Article-by-Article basis, to groups that some governments did not consider to be covered by the definition of ‘national minorities’.87 In its Second Opinion on Germany, for instance, the ACFC has reiterated its proposal that while citizenship may be deemed a legitimate requirement as to certain measures, the government should consider applying the Framework Convention, on an Article-by-Article basis, to groups that have not met the citizenship and traditional residence criteria, such as Turks and other immigrant minorities.88 Indeed, on closer scrutiny, the approach followed by the ACFC can even be taken as recognising the national discretion in applying differential standards to ‘new’ minorities as opposed to ‘old’ minorities, albeit without specifically relating to ‘enhanced minority rights’. In the same opinion on Germany, it has stressed that ‘the application of the Framework Convention, as well as other international human rights instruments, to persons belonging to different national minorities often requires differentiated treatment according to their specific situation and needs’, and that ‘de facto applying differentiated measures to respond to the needs of persons belonging to different minorities…

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minorities, who are the product of mass migration since the Second World War: Wheatley (2007), supra n. 41, p. 774–755. See, for instance, PACE Resolutions 1623 (2003); 1527 (2006); and 1766 (2006). See ACFC, Opinion on Hungary, 22 September 2000, para 12; Opinion on Denmark, 22 September 2000, para 14; Opinion on Finland, 22 September 2000, para 12. Ibid. See ACFC, Opinion on Slovakia, 22 September 2000, para 12; Opinion on Hungary, 22 September 2000, para 14. ACFC, Second Opinion on Germany, 1 March 2006, para 27. See also Second Opinion on Sweden, 8 November 2007, para 28.

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cannot in itself be considered as incompatible with the right to equality as set out in the Framework Convention’.89 Another approach followed by the ACFC to dilute the distinction between ‘old’ and ‘new’ minorities is to invoke the general principles of minority rights regime set out under Article 6 of the Framework Convention, such as the demands of tolerance and intercultural dialogue, and the promotion of mutual respect, understanding and cooperation.90 Such a methodology has enabled the ACFC to address serious issues faced by ‘new’ minorities’ such as hostility, racism and stereotyping expressed in media,91 and the discriminatory practice in areas of language education,92 prejudice held by law enforcement agencies93 and access to housing and employment.94 Nevertheless, this approach does not indicate specific references to ‘core minority rights’. Further, the Venice Commission, which is comprised even of non-European states, has asserted its sinew, stressing that ‘citizenship is generally irrelevant to the content of internationally prescribed minority rights’.95 It has proposed that the citizenship should not be used as a constituent element of the definition of minorities, but instead that it be regarded as a condition of access to specific minority rights.96 Whether a distinction between ‘old’ and ‘new’ minorities with respect to minority-specific rights is deemed reasonable and justified depends on specific factual criteria. These include objective elements such as the existence of distinct cultural, religious or linguistic practice and traditions pertaining to specific new minorities, their length of residence in a host country (or their ‘effective link’ to a specific territory), their population size, the level of geographical concentration, and ‘genuine and effective links’ between specific measures or facilities and a minority group.97 89 90

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ACFC, Second Opinion on Germany, 1 March 2006, para 27. European Commission for Democracy Through Law (Venice Commission), Report on NonCitizens and Minority Rights, 15–16 December 2006, para 37. ACFC, First Opinion on Austria, 16 May 2002, para 85; and ACFC, First Opinion on Ireland, 22 May 2003, para 67. ACFC, First Opinion on Slovenia, 12 September 2002, para 45. ACFC, First Opinion on the Czech Republic, 6 April 2001, para 40. ACFC, First Opinion on Germany, 1 March 2002, para 37. CDL(2001) 74, Opinion on the Constitutional Law on the Rights of National Minorities in Croatia, para. 4. See also CDL(2001) 71rev., Opinion on the draft law on rights of national minorities of Bosnia and Herzegovina, para 4. European Commission for Democracy Through Law (Venice Commission), Report on NonCitizens and Minority Rights, 15–16 December 2006, para 144. European Commission for Democracy Through Law (Venice Commission), Report on NonCitizens and Minority Rights, 15–16 December 2006, CDL-AD(2007)001, paras 84, 133, 134 and 136.

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6. Cultural Identity and Value-Pluralism 6.1. Overview As an attempt to search for coherent rationales for continuing distinction between old and new minorities, this section examines implications of the ideas of cultural identity and value-pluralism on the discourse on minority rights. It seeks to ascertain how the operation of the doctrine in the context of minority rights can be accounted for in the light of the ethos of value-pluralism. Indeed, lurking behind both the application of the doctrine and the protection of minority rights in the decision-making policy of human rights treaty bodies are the ideas of cultural identity and value-pluralism. As mentioned above, it is this underlying rationale that can prove the most convincing for differentiating traditional and immigrant minorities, even though this distinction is increasingly challenged. 6.2. Cultural Identity of Minorities The concept of cultural identity is ‘a dynamic, evolving organism that is often blurred with political identity and political ideology’.98 Needless to say, this concept is indispensable in intrinsically coalescing individual members with their minority group99 on the assumption that ‘the moral importance of the group’s interest depends on its value to individuals’.100 With respect to distinct languages spoken by ethno-cultural minority groups, struggles for preserving them no doubt constitute one of the most important facets of their personal identity. An inter-generational transmission of linguistic traditions can be understood as part of ‘an inter-subjectivist expansion of the abstract concept of the ‘legal person’ ’, which is cardinal to identity-formation of minority groups.101 Once transplanted into an ‘experimental’ ground of human rights discourse, the concept of cultural identity finds expression in a range of rights catalogues. The ‘right to maintain and develop a cultural identity’ can be portrayed as a 98 99

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McGoldrick, supra n. 13, p. 28. Margalit and Raz contend that ‘[i]f the culture is decaying, or if it is persecuted or discriminated against, the options and opportunities open to its members will shrink, become less attractive, and their pursuit less likely to be successful’: Margalit and Raz, supra n. 27, p. 449. Ibid., at 450. With specific regard to minorities, the Strasbourg Court has ruled that the existence of minorities and different cultures is a ‘historical fact that a ‘democratic society’ [must] tolerate and even protect and support according to the principles of international law’: ECtHR, Sidiropoulos v. Greece, Judgment of 10 July 1998, para 41. Habermas 2003a, supra n. 28, p. 9–10.

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‘universal’ right.102 Clearly, the right to distinct cultural identity is fully established in Article 27 ICCPR and in its customary concomitant. This right symptomatizes the underlying ethos of the Framework Convention and the European Charter for Regional or Minority Languages.103 The right to distinct cultural identity can also be distilled from the notion of privacy under Article 17 ICCPR and Article 8 ECHR, which can be liberally construed as embracing diverging facets of individual autonomy and self-determination, including distinct identity and ways of life claimed by ethno-cultural minority members.104 Needless to say, cultural rights play a crucial role in maintaining and reinforcing personal identity of members of ethno-cultural minority groups by guaranteeing equal access to their discrete forms of communication, traditions and practices.105 The ‘struggle for equal rights’ for minority groups gives rise to an expanded notion of ‘multicultural citizenship’.106 Cultural rights that are demanded under the banner of ‘politics of recognition’ are vital to ensure ‘equal inclusion’ of all individuals, including those marginalized. They would ensure minority members’ ‘equal access to cultural environments, interpersonal relations, and traditions’, insofar as these are essential to maintaining their respective personal identities.107 6.3. Value-Pluralism, Multiculturalism and Rights of Minorities The recognition of diverse cultural identities and moral differences of minority members is encapsulated in the approach that views multiculturalism as a ‘human good’.108 However, the notion of multiculturalism in many Continental

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Keller, supra n. 18, p. 43. See A. Van Bossuyt, ‘Is There an Effective European Legal Framework for the Protection of Minority Languages? – The European Union and the Council of Europe Screened’, in: ELRev, 32, 2007, 860. For this argument under Article 8 ECHR, see Wheatley (2007), supra n. 41, p. 774. Yet, there is a limit to the strategy of relying on this provision, as illustrated by the ECtHR’s approach in Buckley UK. The case concerned a Roma woman who was denied planning permission on her land on which she stationed her caravan. The Court’s assessment may be criticized for failing to recognise that the claimant’s value emanating from her ethnicity, namely her traditional itinerary lifestyle, was an important factor in assessing whether, faced with a shortage of Gypsy caravan sites, she could be exempted from general rules applicable to the public at a large: ECtHR, Buckley v. UK, Judgment of 25 September 1996, especially paras 79–85. However, see the dissenting opinion of Judge Pettiti, who duly took into account her ethnicity factor. See also Keller, supra n. 18, p. 52. Habermas (2003)a, supra n. 28, p. 9. Ibid. Ibid., p. 10. McGoldrick, supra n. 13, p. 35.

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European democracies, as opposed to prevailingly immigration-based societies such as the United States, Canada and Australia, has been seen as a ‘model of management’ within the framework of their primordial liberal principles, but not as a model of ‘genuine integration’.109 Beneath its veneer of (limited) recognition is the concern over the ramifications of what Amy Gutmann calls ‘multicultural conflict’, namely, (fundamental) disagreement over the meaning of basic social goods.110 Such a concern may be translated into an exaggerated fear that the notion of multiculturalism might be used as legitimating force by particular ethno-cultural groups, including ‘kin-state minorities’ harbouring ‘transborder affiliations’, who claim territorial autonomy, irredentist or even secessionist movements.111 Further, the idea of multiculturalism may be regarded as counterproductive and even oppressive to struggles for equality for non-ethno-cultural minorities such as women and homosexuals.112 Indeed, the idea of multiculturalism as rationale underpinning of both the margin of appreciation and the system of minority rights is deemed ‘a localizing doctrine’ that may clash with ‘a universalizing doctrine’ of international human rights.113 The idea of value-pluralism, which serves as rationale underpinnings of the framework of multiculturalism, suggests the plurality, conflict and incomparability (or incommensurability) of claims.114 The ‘constitutional’ edifice of 109 110 111 112

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Ibid., p. 38–39. Gutmann (1993), supra n. 75, p. 181. Kymlicka, supra n. 9, p. 25–26. See also McGarry et al, supra n. 12, p. 73. L. Volpp, ‘Feminism versus Multiculturalism’, in: Columbia L.Rev, 101, 2001, 1181. See also A. Schachar, Multicultural Jurisdictions : Cultural Differences and Women’s Rights, Cambridge: Cambridge University Press 2001. McGoldrick, supra n. 13, p. 53. The practice of human rights law within the UN framework accords primacy to universality of cardinal human rights principles while impervious to justifications based on particular cultural traditions. In its General Comment No. 31, the Human Rights Committee (HRC) observed that a failure to abide by the obligations to comply with the ICCPR rights cannot be justified by reference to cultural considerations: HRC, General Comment No. 31 [80] Nature of the General Legal Obligation Imposed on States Parties to the Covenant: 26/05/2004, CCPR/C/21/Rev.1/Add.13, para 14. With special regard to women’s rights, the HRC noted that ‘traditional, historical, religious or cultural attitudes’ should not legitimate violations of women’s right to equality before the law and to equal enjoyment of the ICCPR rights: HRC, General Comment No. 28: Equality of rights between men and women (article 3): 29/03/2000, CCPR/C/21/Rev.1/Add.10, para 5. In the context of the ECHR, the Strasbourg Court, in the Refah Partisi case, famously rejected the introduction of the sharia law as being incompatible with the primordial principles of the ECHR, such as gender equality and secularism: Refah partisi (the Welfare Party) and Others v. Turkey, Judgment of 13 February 2003 (Grand Chamber), para 119 (confirming a Chamber’s Judgment of 31 July 2002, para 70). W. Lucy, ‘Adjudication’, in: J. Coleman and S. Shapiro (eds.), The Oxford Handbook of Jurisprudence & Philosophy of Law, Oxford: Oxford University Press 2002, 206, p. 234.

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human rights treaties is geared towards value-pluralism rather than towards value- monism. For instance, in the European context, the Framework Convention stresses ‘a spirit of tolerance and intercultural dialogue’ as essential to promoting ‘cultural diversity’ and ‘enrichment’ of each European society.115 The European Court of Human Rights has highlighted the principle of pluralism, tolerance and broadmindedness.116 It has stressed that the notion of pluralism requires the ‘recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities’117 by creating ‘appropriate conditions’ that can allow persons belonging to national minorities ‘to express, preserve and develop this identity’.118 Bearing in mind the caveat on the localizing tendencies of both the margin of appreciation doctrine and the cultural identities espoused by minority groups, one can submit that the preservation of distinct cultural fabrics of national societies will furnish the most coherent rationale for a continued, differentiated (albeit weakened) approach to ‘old’ and ‘new’ minorities. ‘Historical’ minorities such as autochthonous groups are deemed to possess greater legitimacy than ‘new’ minorities in claiming entitlement to the third and fourth generations of minority rights. Hence, they can be more privileged than minority groups stemming from migration in asserting culture-related rights involving positive duties and infrastructural implications, and in some circumstances, even a territorial autonomy or other forms of political representation.119

7. Conclusion When mapping out the pluralist idea of distributive justice, Michael Walzer argues that social goods ought to be distributed for different reasons through 115

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The Framework Convention on the Protection of National Minorities, preamble and Article 6(1). See, for instance, ECtHR, Handyside v. UK, Judgment of 7 December 1976, Series A, No. 24, para 49. See also United Communist Party of Turkey and Others v. Turkey, Judgment of 30 January 1998 (Grand Chamber), paras 42–43. For religious minorities, the Strasbourg Court has consistently stressed the closely intertwined nature of religious pluralism and democracy within the configuration of the ECHR: Refah partisi (The Welfare Party) and Others v. Turkey, Judgment of 13 February 2003 (Grand Chamber), paras 89–90. See also Kokkinakis v. Greece, Judgment of 25 May 1993, Series A No. 260-A, para 31, and Buscarini and Others v. San Marino, Judgment of 18 February 1999, para 34. ECtHR, Gorzelik v. Poland, Judgment of 17 February 2004 (Grand Chamber), para 92. Ibid., para 93. See, for instance, Malloy et al., supra n. at 38 and 69.

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varying procedures and by diverse agents. Such differences emanate from various understandings of the social goods themselves, which are ‘the inevitable product of historical and cultural particularism’.120 This observation is aptly true of minority rights, which have developed as historically epiphenomenal, social goods. Intriguingly, the examinations reveal that not only the margin of appreciation but also the system of minority rights as such are historically contingent and transitional in nature. Each society has its own internal distributive arrangements, and is engaging itself in the ongoing process of developing and revising shared social meaning and cultural identity, the process that can be dubbed as a ‘cultural project’. Individual persons can obtain identity and wellbeing through their participation in this process.121 This furnishes a cogent argument against cultural insensitivity and callosity in the globalizing world. The margin of appreciation doctrine can be described as a context-sensitive, policy-standard that helps ensure transitive but steady march towards the formation of ‘common interpretive culture’.122 The doctrine can facilitate the piecemeal but conscientious deliberative process of international monitoring bodies, which is predicated on evaluations (a balance of reasons)123 of appropriate value-factors. In this process, the doctrine finesses the confrontation of the two opposing, dynamic forces immanent in their decision-making policy as regards the minority rights regime: the integrationist trend bolstered by universal values of human rights; and the centrifugal force pulling towards distinct values espoused by diverse minority groups. It can be submitted that the most crucial ‘constitutional’ function of the margin of appreciation lies in its capacity to endorse different cultural or traditional values espoused by a specific society or minority group. It signals international supervisory organs’ due recognition that normative objectives envisaged in the rights secured under human rights treaties can be attained

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M. Walzer, Spheres of Justice – A Defence of Pluralism and Equality (Oxford: Basil Blackwell, 1983) at 6. A. Buchanan and D. Golove, ‘Philosophy of International Law’, in: Coleman and Shapiro (eds.), supra n. 114, 868, p. 900. Compare Dworkin (1986) supra n. 71, p. 67. Indeed, it is pertinent to recall his caveat that ‘the interpretive attitude cannot survive unless members of the same interpretive community share at least roughly the same assumptions about this [what counts as part of the practice]’. He also adds that it is impossible to determine how much difference is excessive with regard to the degree of disparity in the convictions of fit among the citizens: ibid. In this context, compare Alexy’s suggestion of ‘discursive constitutionalism’, which is defined as ‘an enterprise of institutionalizing reason and correctness’: Alexy, supra n. 68, p. 581.

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without drawing on strictly uniform standards.124 Such assumptions are corroborated by the overarching ideas of value-pluralism and cultural diversity. Indeed, the application of the margin of appreciation doctrine manifests the distinct (quasi-)judicial strategy of preserving value-pluralism. This rationale can be applied to bolster minority members’ distinct ways of life against the conformist trend.125 The doctrine is instrumental in consolidating the universalising endeavour of human rights in a local society imbued with distinct minority culture and morality and in fostering ‘ethical decentralization’.126 It is in such profoundly idea-enriched and value-laden bedrock that one can unearth a residual modicum of justifications for drawing a line between ‘old’ and ‘new’ minority groups.

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Arai-Takahashi (2002) supra n 37, p. 242–249; S. Greer, ‘Constitutionalising Adjudication under the European Convention on Human Rights’, in: Oxford Journal of Legal Studies, 23, 2003, 405 at 409; and Shany, supra n. 36. See, for instance, Arai-Takahashi 2002, ibid; P. Mahoney, ‘Marvellous Richness of Diversity or Invidious Cultural Relativism’, in: Human Rights Law Journal, 19, 1998, 1; and J.A. Sweeney, ‘Margins of Appreciation: Cultural Relativity and the European Court of Human Rights in the Post-Cold War Era’, in: International and Comparative Law Quarterly, 54, 2005, 459. Sweeney, ibid., p. 472–474.

Do Vulnerable Groups within Ethnic, Religious or Linguistic Minorities Need Special Standards? Clive Baldwin1 The problems faced by ethnic, religious and linguistic minorities, and by other vulnerable groups would appear to be similar and therefore require common solutions. All appear to face discrimination and exclusion, and, in many cases, violence, or a denial of their way of life. And yet the vulnerable within the minorities – such as women and lesbians, gays, bisexuals and transgender – may not benefit from increased protection of the rights of minorities. Minority rights, which are amongst the oldest recognised rights internationally, have traditionally been concerned with ensuring that members of specific groups are not only protected from persecution but are able to practice their distinct languages, religions and cultures in private and public. But it has been claimed that some of these cultures and religions discriminate against women and members of sexual minorities. In fact as some groups, such as LGBT, have successfully begun to claim equality in many countries in recent years, some religious minorities appear to be claiming a right to discriminate as societies change around them. Separately, the phenomenon of multiple, or intersectional, discrimination appears to be increasingly recognised, that is that persons who suffer discrimination may do so for multiple reasons, not just because of their race or ethnicity, but also their sex, sexual orientation, age, disability or other reason. It is often these vulnerable groups within the vulnerable who may be most likely to be ignored, to suffer damage and therefore to be most in need of special attention and protection. These two broad areas – whether minorities have, or should have a right to discriminate, and how to address multiple discrimination – may mean that special standards are needed for the vulnerable within minorities. To assess this it is necessary to examine what the problems actually are affecting vulnerable groups within minorities, and whether the problem is that the existing framework and international legal standards are inadequate, and therefore new ones are needed, or whether the problems can best be addressed by developing and applying the existing standards to meet the particular problems. 1

All websites referenced last accessed on 10 August 2009, unless otherwise stated.

Kristin Henrard, Double Standards Pertaining to Minority Protection, pp. 243–258. © 2010 Koninklijke Brill NV. Printed in the Netherlands.

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This will be assessed by first: considering the existing framework of minority rights and anti-discrimination in international law and standards, and then looking at specific examples of five key problems for vulnerable groups within minorities and how the existing standards have or have not addressed them. Three of these problems relate to minorities’ apparent claims to be able to discriminate: in the areas of determining their own membership; in the state recognition of personal laws for religious communities which may discriminate on the grounds of gender; and in the right of religious minorities to discriminate on the grounds of sexual orientation. The fourth area to be examined is state attempts to restrict headscarves amongst Muslim women in western Europe, in the name of protecting them from what are described as abuses within their religion. The final example is how authorities tackle domestic violence in minority communities, which has recently been highlighted by a European Court of Human Rights ruling and shows how vulnerable groups within minorities may need special attention. The focus will be on how law has, or has not addressed these problems.

1. The international standards Minority rights, i.e. the rights of those belong to ethnic, religious or culturebased groups that happen to be a minority within a particular territory, date back to before the Universal Declaration of Human Rights. In their modern form they began with the post-World War I minority treaties in which specific states (some of the defeated and newly independent states) guaranteed to respect the cultural rights of certain minorities within their territory. Such rights concerned specific rights of specific minorities and little, if anything, was done to address the rights of vulnerable groups within those minorities. After the Second World War, the stress was on universal human rights, aimed at combating a perception that rights were only for a few in select states. This principle of universality, of the same rights for all, was shown most clearly by the Universal Declaration itself of 1948 and the two comprehensive human rights treaties that eventually (in 1966) emerged out of it, the International Covenants on Civil and Political Rights (ICCPR) and on Economic, Social and Cultural Rights (ICESCR) respectively. However, as rights in the sixty years since have become more precise and detailed, in the realm of equality and the rights for disadvantaged groups, three basic trends can be discerned. First, the retention of a basic, fundamental commitment to equality and to the prohibition of discrimination on fundamental grounds such as race and gender, on the belief that all should be treated equally, especially in the

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application of other human rights.2 This was claimed from the beginning as Article 1 of the Universal Declaration states: “All human beings are born free and equal in dignity and rights.” Second, a continuation, or revival, of the pre-war protection of the rights of minorities, now stated clearly to be national or ethnic, religious or linguistic. This was apparent with one article (27) on the rights of minorities in the ICCPR and the further development of this by the Declaration on the Rights of Minorities approved by the UN General Assembly in 1992.3 Third, is the development of specific rights for members of vulnerable groups, these rights being considered necessary to end discrimination. This has been largely through treaties, that are focused exclusively on eliminating specific forms of discrimination as they affect particular groups. Such a trend started with race with the Convention on the Elimination of All Forms of Racial Discrimination (CERD). It has continued with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and with further treaties on the rights of children, migrant labourers, and the disabled. The Convention on the Rights of the Child remains the most widelyratified UN human rights treaty. Put crudely then, the trend in international human rights law at the treaty level has been of retaining the principle of equal rights for all, but in practice developing specific rights for certain vulnerable groups and their members. The possibility of clashes between different rights of different groups is there and has not yet been satisfactorily resolved, whether it is of overlooking vulnerable groups within vulnerable groups, or of religious or cultural minorities claiming the right to discriminate against other groups (usually women and sexual minorities) within their religious or cultural group. Looking at the treaties in more detail, the early sources of human rights law stressed the universality of the human rights, and although prohibiting discrimination, did not specifically address the needs of those vulnerable groups within minorities. Article 1 of the Universal Declaration begins with ‘All human beings are born free and equal in dignity and rights’ and the next Article goes on to say: ‘Everyone is entitled to all the rights and freedoms set forth by this Declaration without distinction of any kind …’ Article 7 states that all are equal before the law, and entitled to equal protection of the law, including equal protection against discrimination. Article 2 in both of the major Covenants requires states to ensure that each right in each Covenant

2 3

See ICCPR Articles 2 and 26, ICESCR Article 2. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UN General Assembly, 18 December 1992, A/RES/47/135.

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are exercised without discrimination. Article 26 of the ICCPR takes the equal protection provision of the Universal Declaration further by requiring states to ensure their law ‘shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ The guarantee of equality is therefore strong, on paper. However, the early discrimination-focused treaties did not address the needs of those suffering from multiple discrimination. The rather short CERD (which was actually agreed by the General Assembly in 1965, a year before the two Covenants) says nothing about those suffering other forms of discrimination as well as race. It has been for its Committee on the Elimination of Racial Discrimination to develop methods to begin to address this issue. The CERD Committee has produced General Recommendations on addressing discrimination against specific vulnerable racial groups – including indigenous peoples, Roma and on descent-based discrimination. But of particular importance is its 2005 General Recommendation No. 25, on Gender Related Dimensions of Racial Discrimination. Here the Committee clearly acknowledged that ‘racial discrimination does not always affect women and men equally or in the same way’. Examples it gave were gender-based violence against women from particular racial groups and abuse of women workers in the informal or migrant workforce, and the access of women to remedies for racial discrimination. The Committee stated it would from then on work on ensuring the gender aspects of racial discrimination were addressed, and requested states to do so also, including in breaking down figures on racial discrimination by gender. CEDAW, which was finalised in 1979, the year it was approved by the General Assembly, shows the development of anti-discrimination law since 1965 by being longer and more detailed. But like CERD it does not specifically acknowledge intersectional discrimination, or vulnerable groups within its main target group – women. The one exception to this being rural women, as Article 14 of CEDAW requires states to acknowledge the particular needs of such women and ensure their equality, in particular in rural development. But like the CERD Committee, the Committee on the Elimination of Discrimination Against Women has over the years begun to examine how to address multiple discrimination through the needs of other vulnerable groups. The CEDAW Committee agreed a General Recommendation (no. 18) on disabled women in 1991, requesting states to address their particular needs through reporting on them and taking steps to ensure disabled women have equal access to education and employment and other areas of public and social life.

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However, more recent human rights treaties have been more explicit in acknowledging the need to address multiple vulnerabilities. The Convention on the Rights of the Child, finalised in 1989, specifically refers to the rights of children with disabilities (Article 23) and those from minorities or indigenous groups (Article 30). It also has a general non-discrimination provision (Article 2) which was the first in a human rights treaty to specifically acknowledge disability as a ground for non-discrimination. The Committee on the Rights of the Child has adopted two impressive General Comments on vulnerable groups – its General Comment 9, in 2006, on the rights of children with disabilities, and its General Comment 11, in 2009 on indigenous children. Both go into much greater detail then any similar document previously produced by a UN treaty body on how to address the rights of these doubly vulnerable groups – indeed in addressing the rights of children with disabilities, the CRC went on to consider the rights of disabled children from minorities or indigenous groups.4 The Migrant Workers Convention of 1990 has a general non-discrimination provision similar to the ICCPR requiring states to apply the Convention without distinctions such as sex, race or religion (Article 1 and 7). The newest human rights treaty, the Convention on the Rights of Persons with Disabilities, finalised in 2006, has a general non-discrimination provision (Article 5) but also specific sections on women and children with disabilities, respectively (Articles 6 and 7) which includes a specific recognition of multiple discrimination

2. Specific issues Membership of minorities and women A critical issue for minorities is maintaining and controlling their membership. Their right to do so may be recognised by the state, or the state may set the rules, purportedly meeting criteria for membership set by the minorities themselves. However, some minority groups, or states, may claim traditional rules on membership which may treat men and women differently, often meaning the minority women are discriminated against. A claim from a woman claiming discrimination in the rules governing membership of her indigenous group was addressed by the UN Human Rights Committee in its first ruling on Article 27 on the rights of minorities, Sandra 4

Committee on the Rights of the Child, General Comment No. 9 The Rights of Children with Disabilities, para. 80, 27 February 2007, CRC/C/GC/9.

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Lovelace v Canada.5 Lovelace was born a Manikeet Indian, but lost her rights and status as an Indian when she married a non-Indian. Under the Canadian law that governed this (its Indian Act) this loss of status only affected Indian women who married ‘out’, not Indian men. Because of her loss of Indian status she was prevented from living on a Reserve, where she wished to live after her marriage broke down. She brought a complaint to the Human Rights Committee in 1977 (a year after the entry into force of the ICCPR) alleging Canada was in violation of the ICCPR on discrimination on the grounds of sex (Article 2, 3 and 26) and of equality in marriage (Article 23) but also of the rights of members of minorities (Article 27). The Canadian government argued, that although it was trying to change the law, it was necessary to ‘protect’ the Reserve by defining who could live there – i.e. who was a member of the minority. The government went on to argue that the Indian communities, at the time of the drawing up of the laws in the mid-nineteenth century, had felt more ‘threatened’ by non-Indian men moving into the Reserve than nonIndian women, a viewpoint the government claimed was still valid. In a key ruling, the Committee said the most important Article to consider was Article 27 and the key issue was the refusal to allow Lovelace to live on the Reserve. It found Lovelace to be a member of a minority, whatever the Canadian law said, given her background. It did find that it was justifiable for the state to set rules for determining the membership of a community. However, the attempt to prevent Lovelace from living on the Reserve would deny her practising her language and culture with other members of her group, and given the other provisions of the Covenant (on non-discrimination) there could not be a reasonable justification for this – protecting the community was not a reasonable justification in this context. Therefore the rule was a violation of the Covenant. The Canadian government finally changed the law to remove the discrimination that had affected Lovelace in 1985, despite the opposition of several indigenous groups. However the discrimination had not ended there. Sharon McIvor, the granddaughter of an Indian woman who had married ‘out’ found that the revised law, although restoring her own Indian status still did not allow her children to regain their Indian status. She claimed this amounted to discrimination on the grounds of sex as it would not have been the case if she had had Indian grandfathers rather than grandmothers. After a 20 year struggle she won a ruling from the British Columbia Supreme Court in April 2009 that the Indian Act was a violation of the equality provision of the Canadian

5

Sandra Lovelace v. Canada, Communication No. R.6/24, U.N. Doc. Supp. No. 40 (A/36/40) at 166 (1981).

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Charter (section 15) and gave the government one year to change it.6 The government has announced it will comply. However, McIvor is appealing the part of the ruling that would appear to only remove discrimination going back to 1985 and not further.7 Personal Laws and women A second area where minority rights may clash with the rights of women is that of state recognition of personal status laws for minority religions. A prominent example is in India. Under British rule, its colonial courts had applied ‘indigenous’ religious law in family and other religious matters.8 On independence, and with the division into India and Pakistan (and mass killings of Hindus, Muslims and Sikhs in both countries), India, despite declaring itself a secular state, retained the use of religious law for religious communities, including Muslims, Christians, Jews, Parsees (Zoroastrians) and Hindus. On the other hand, the Indian Constitution contained provisions on equality, including on the basis of sex (Articles 14–16), and Article 44 of the Constitution stated that the ‘State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’ However, the Indian state has not secured such a uniform civil code. The potential conflict between the traditional religious laws used by the minority communities and the commitment to gender equality was shown in the Shah Bano case in the Indian Supreme Court in 1985.9 There, the applicant, a Muslim women born in 1916 and married in 1932, had been divorced by her husband in 1978 and had applied for maintenance. The Supreme Court said that the Indian Criminal Procedure Code applied, not personal law. As the Criminal Procedure Code applied to all equally, it required support to be provided to Ms Bano in this case. The Court also expressed its regret that the Article 44 of the Constitution had remained a ‘dead letter’ and not led to any efforts to actually create a common Civil Code. The response however, was allegations from Muslims that this ruling was an interference with Muslim law – which they said mean a husband should only pay maintenance during a period of iddat (normally three months after marriage). An ‘All India Muslim Personal Law Board’ (ALPLB) largely formed in response to the case, organised mass demonstrations. The government’s response was not to pass a common

6 7 8

9

McIvor v. Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153. http://metisbarefacts.blogspot.com/2009/06/sharon-mcivor-is-trying-to-take-her.html India was a mixture of areas under direct British rule and other ‘princely states’ some of whose rulers were Muslim. Mohammad Ahmed Khan v. Shah Bano Begum and Others (AIR 1985 SC 945)

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Civil Code, but instead it passed a Muslim Women (Protection of the Rights of Divorce) law in 1986, which appeared to take treat Muslim women differently from other women on matters of maintenance, saying their former husbands would only be liable for maintenance during the iddat, but, if the woman remained in need of maintenance afterwards, either her relatives or the Waqf (Muslim community) would be responsible. This law was upheld as constitutional by the Supreme Court in the case of Danial Latifi v Union of India. But this latter ruling and others went on to uphold, on the basis of the equality provisions of the Constitution, the practice of wives being awarded lump sum payments during the iddat at a level that would ensure they do not suffer destitution thereafter. The Court has still been attacked for, notwithstanding the equality provision of the Constitution, accepting a law that puts Muslim women in a worse position than non-Muslim women on maintenance (and indeed puts non-Muslim men in a worse position than Muslim men).10 When India ratified CEDAW, in 1993, it made a declaration that articles 5(a) and 16(1), relating to cultural and customary practices, and equality in marriage and family relations respectively, would only be applied ‘in conformity with [India’s] policy of non-interference in the personal affairs of any Community without its initiative and consent.’ CEDAW has also expressed its concern about India not reforming the personal laws, urging it to withdraw its declarations to the Convention and move towards a uniform civil code.11 In 2007, India’s report to CEDAW said that although personal laws were being reviewed with the aim of removing those provisions that discriminated against women its policy was ‘not to interfere in the Personal Laws of the Minority Communities unless the necessary initiatives for change come from a sizeable cross section of the communities concerned.’12 The Committee responded with its clearest statement yet, that ‘The Committee is concerned by the State party’s reluctance to review its policy of non-interference in the personal laws of communities without their initiative and consent and to withdraw its reservations to articles 5(a) and 16(1) of the Convention, which stand in contradiction not only to the overall spirit and aim of the Convention but also to the State party’s existing constitutional guarantees of equality and non-discrimination.’13 10

11

12 13

See: Mihir Desai ‘Flip Flop on Personal Laws’, in: Combat Law, Volume 3, Issue 4, NovemberDecember 2004, available at http://www.indiatogether.org/combatlaw/vol3/issue4/flipflop .htm accessed 20 July 2009. See for example CEDAW Concluding Comments on India, 4 February 2000, CEDAW/ C/2000/I/CRP.3/Add.4/Rev.1 paragraph 61 India’s Response to List of Issues, 13 December 2006, CEDAW/C/IND/Q/3/Add.1. CEDAW Concluding Comments on India, 2 February 2007, CEDAW/C/IND/CO/3, paragraph 10.

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A comparable situation exists in Lebanon. There the system, inherited from the Ottoman Empire and continued under the French (who drafted the first version of the Lebanese Constitution in 1926), was not only of recognition of distinct religious groups (18 in all), but also of their right to apply personal law (statut personnel).14 Some of these 15 different personal status laws discriminate against women on grounds such as marriage, inheritance and child custody.15 CEDAW, has as in India, taken a strong interest in this issue. During Lebanon’s last review, in 2008, Lebanon was asked about moves towards a unified personal status code. Its response was scarcely much better than India’s: ‘The adoption of a unified personal status code in Lebanon is far from imminent and no initiatives in that direction have been started’ although it did suggest that Lebanese courts were limiting the scope of the application of religious laws.16 CEDAW in its Concluding Comments regretted that its previous recommendation of a unified personal status law had effectively been ignored, and again recommended that such a law, that would treat all women in Lebanon equally, be adopted urgently, and that Lebanon, in its next report provide full details about how the existing religious laws affected women.17 In fact moves towards removing the discrimination in personal status laws in Lebanon, whether through a unified code, changing each religious law one by one, or through litigation, seem to have progressed little. The ‘confessional’ division of Lebanon is even more pronounced than in India, based on political power-sharing, but it appears that women may be the main victims as the confessional division seems to allow religions to discriminate against women. One small step in February 2009 was the removal of religious identification from identity cards.18 South Africa represents, though, an apparent example of how to reconcile the need to respect minorities and particularly the diversity of different religions and cultures, including through customary law, whilst ensuring that equality is protected. The South African constitution, which came into force 14

15

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Article 9 of the Lebanese Constitution available in French at http://www.conseil -constitutionnel. gov.lb/fr/constitution.htm last accessed 1 August 2009. Human Rights Watch ‘Removal of Religion from Ids Positive but not Sufficient’, February 16, 2009 http://www.hrw.org/en/news/2009/02/16/lebanon-removal-religion-ids-positive-not -sufficient. Lebanon: Response to List of Issues (Question 4), 19 October 2007, CEDAW/C/LBN/Q/3/ Add.1. CEDAW Concluding Comments on Lebanon, 1 February 2008, CEDAW/C/LBN/CO/3, paragraphs 18 and 19. Human Rights Watch op cit.

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after apartheid, understandably has a strong commitment to equality – although so does the Indian constitution of 40 years earlier. However the South African constitution specifically sets out that it recognises customary law, but this is made clearly subject to the Bill of Rights in the Constitution, which includes a strong guarantee of equality, and therefore customary law must be applied and interpreted to so comply.19 An example of this in practice was the passing of a Recognition of Customary Marriages Act in 1998 which, although recognising customary law and marriages, abolished, at least in law, any inequality between men and women in these marriages. A memorandum on the law says its objective is to bring customary law into compliance with the Constitution and international law, and states that it is attempting to reconcile the preservation of cultural traditions with equality. The discriminatory issues with respect to customary law in South Africa are, as with religious law in India and Lebanon, often about the position of women with respect to marriage and divorce (including maintenance and child custody), property and inheritance. The South African courts seem to have been more willing than those in India to, whilst respecting customary law if they can, nevertheless strike down any provision that violates equality. So the High Court found in Prior v Battle and Others that customary marriage law violated the Constitution with respect to any granting of ‘guardianship’ to the husband over the wife. The Constitutional Court, in Bhe v The Magistrate Khayelitsha and Another and two other joined cases in 200420 ruled that customary inheritance laws that privileged men were in violation of the Constitution. The customary law in that case meant Ms Bhe and her daughters would have not inherited anything after the death of her partner, the father of her daughters to whom she may have been married. The Court ruled the customary rule, which would have had all the property of the deceased devolve on his father, discriminated on the grounds of both sex and status (i.e. it discriminated against children born outside marriage) and therefore could not stand. Langa, writing the majority decision said that although it would be desirable to ‘develop’ customary law to bring it into line with basic principles of equality this was not possible with something so fundamental to customary law as male primogeniture. 19

20

Constitution of the Republic of South Africa, Articles 39, 211. Available at http://www.the constitutional.org/constitutions/south_africa/south_african_constitution_full_text.html. (2005(1) B.C.L.R. 1 (CC) ). The two other joined cases were: Shibi v Sithole and others Case CCT 69/03; South African Human Rights Commission and another v President of the Republic of South Africa and another Case CCT 50/03.

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Rights of religions to discriminate? Finally, a more recent development, especially in Europe, has been the growing acceptance of the rights of Lesbian, Gay, Bisexual and Transexual people (LGBT) to equality and non-discrimination. As new laws on equality have been discussed and implemented across Europe, what has also emerged are attempts by majority and minority religions to claim what is effectively a ‘right to discriminate’ on the grounds of sexual orientation. This was apparent in the United Kingdom where new laws were drafted in 2007 to extend prohibition of discrimination on the grounds of sexual orientation to services. However the (minority) Catholic church lobbied heavily for an exemption for Catholic adoption agencies, which would give them the right to continue to refuse to accept same sex couples as potential adopters.21 Media reports at the time suggested that this attempt was strongly supported by the Communities Secretary Ruth Kelly (a committed Catholic) and then-Prime Minister Tony Blair (who became a Catholic later that year). No permanent exemption was granted, although a temporary exemption until the end of 2008 was. The only reported difficulty since the end of that exemption (i.e since agencies were required to no longer discriminate on the grounds of sexual orientation) was an attempt, in 2009, by three Catholic agencies to obtain a new exemption through a change in their charitable objects to allow them to discriminate. This was rejected by the Charity Commissioner (the rejection was upheld on appeal, although the agencies may be appealing further).22

3. Headscarves in Western Europe The issue described above is where religious or other minorities are claiming particular rights, although it appears in some cases the rights they claim would include freedom to discriminate. However in the last decade another issue with respect to religious minorities has emerged in Europe – that of the attempt by certain Western European states, in the name of protecting women within the Muslim minority, of banning those women from wearing religious clothes – i.e. the headscarf or burqa.

21

22

See Gay Adoption Row: Kelly puts faith in Catholic Opt-Out, The Independent 28 January 2007 http://www.independent.co.uk/news/uk/politics/gay-adoption-row-kelly-puts-faith-in -catholic-op tout-434002.html. Gay Catholics welcome rulings against adoption agency discrimination 5 June 2009 http:// www.ekklesia.co.uk/node/9585.

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The issue of state involvement in religious clothing does of course address issues of majority religions in some countries. Both Saudi Arabia and Iran for example have strict rules on how all persons should dress, with particularly strong rules for women, based on their majority religion. Turkey, a supposed secular state with a majority Muslim population, introduced a ban for women students wearing headscarves after a military coup in 1980, a ban which was upheld by the European Court of Human Rights. The Muslim minorities in various countries in Western Europe have grown significantly since immigration since the Second World War.23 Although countries such as the Netherlands and the United Kingdom now have significant Muslim minorities, the two countries which have seen the most persistent recent attempts to ban women from wearing religious clothing have been France and Germany. France has claimed to be a secular state since the formal separation of the Catholic church and state in 1905. But in the last twenty years the focus of the state on imposing ‘laïcité’ seem to have been on the clothing worn by Muslim women. This began with the 1989 ‘affaire des foulards’ when a school director tried to ban three Muslim girls from coming to school in their headscarves. Fifteen years later, this discussion culminated in the law 2004–228, which bans ‘conspicuous’24 religious symbols in schools. This law on the face of it applies to all religions and both boy and girl students, although the aim was predominately that of Muslim girls wearing the headscarf, which was certainly the target of most of the discussion about the law. It should be noted that “conspicuous” requirement means the ban does not include small crucifixes, the most common religious symbol worn by Christians. Similar bans on religious clothing were also then mooted or applied in areas such as driving licences and passport photographs. Although another victim group of such laws have been Sikhs, predominately men, who wish to wear the turban, Muslim women have remained the focus of attention. Their continuing importance was made clear when President Nicolas Sarkozy stated, in a speech to the National Assembly on 22 June that what he called the ‘burqa’ was ‘not welcome’ in France. In doing so he claimed to take up the rights of women, apparently against Islam, saying the burqa was ‘not a religious problem’ but one of ‘liberty and dignity of women’ and the burqa was a sign of ‘subservience’.25 At the time of writing some form of ban on the wearing of 23

24 25

The origin of recent Muslim immigrants in western European countries was slightly different – with south Asians generally going to Britain, north Africans to France and Turks to Germany. In French, ‘ostentatoire’. See ‘L’intégrale du discours de Sarkozy devant le Congrès’, Liberation, 22 June 2009. http:// www.liberation.fr/politiques/06011049-l-integrale-du-discours-de-sarkozy-devant-le -congres.

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burqas and other religious clothing by Muslim women in France was being considered. But in the burqa discussion those seeking a ban have so far produced virtually no evidence of how women are being oppressed and why a ban which actually targets them, the apparent victims of this oppression, is necessary. Some evidence has emerged in Germany of the reasons for and effect of bans targeting Muslim women. In February 2009 Human Rights Watch published a report on the impact of bans on women teachers wearing the headscarf.26 What this showed was that such bans were recent, only beginning in 2004, had only been put in place in half of the German Lander, and did not, on the face of the laws, only prohibit headscarves, but ‘religious symbols’. However, it was apparent both from the public and political discussion about such bans that they were targeted at Muslim women wearing the headscarf and the only cases of the laws being applied Human Rights Watch found were against Muslim women. The purported reasons for such laws were similar to those in France, ‘neutrality’ (Germany does not have the official French position of secularity as a principle of the state) and protecting women from oppression. However in several Lander, specific exemptions from the ban were made for ‘Christian’ or ‘Western’ symbols (such as a nun’s habit). Most powerfully none of the women Human Rights Watch spoke to said they had been pressurised into wearing the headscarf, and none welcomed the ban. In fact they said had freely chosen to wear the headscarf and the effect of the ban on these teachers meant they had to either compromise their religion, or give up teaching – and in some cases working altogether – or be forced to move. A powerful statement by some women was that ‘as long as we [Muslim women] were cleaning in schools, no one worried about the headscarf.’27 Only, it seems when Muslim women became teachers rather than cleaners, did the state authorities start to view the headscarf as a problem and talk about women’s rights. But as in France, little or no evidence has been produced by those who claim women are being oppressed into wearing the headscarf, and therefore why it would be necessary to ban them for doing so, to demonstrate that such oppression of women is taking place. Instead the impact of special measures, supposedly to protect minority women, has been to negatively affect them, driving some at least out of their chosen profession. What has been further disappointing is that the European Court of Human Rights has not seemed capable of upholding the rights of members of religious minorities to practice their religion, in France at least. A series of cases in 2008 and 2009 concerned bans on both Muslim women and girls wearing

26 27

Human Rights Watch, Discrimination in the Name of Neutrality, February 2009. Ibid., page 51.

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headscarves, and Sikh men and boys wearing turbans.28 All the cases concerning headscarves concerned girls who had been expelled from school for wearing headscarves or hats, in two of the cases simply due to the decision of a principal before the 2004 law came into force. However, rather than look at the actual impact on the children (in at least two of the cases 10 year olds had to continue their education by correspondence course) or requiring the state to prove the necessity for such drastic measures, the Court instead assumed that such action was permitted to uphold secularism. Neither minority rights nor the rights of women and girls appears to have been taken into account.

4. Violence against minority women A different area where women members of ethnic minorities may need special protection is in the area of domestic violence. The official response in most states to domestic violence has been, until recently, one of acceptance or neglecting to treat it in the same way as other forms of violence, treating it as ‘private’.29 In a similar way, there is much evidence that violence against ethnic minorities, especially the most marginalised groups such as the Roma, is consistently ignored, even tolerated, by the police and justice systems in many countries.30 Therefore one would expect domestic violence against minority women to be doubly neglected by the state authorities. And this is indeed the case, as most clearly shown in the June 2009 groundbreaking ruling by the European Court of Human Rights on domestic violence, concerning violence against a Kurdish woman and her mother by her former husband (leading to the death of the mother) in southeast Turkey.31 The ruling found a violation of the right to life, degrading treatment and discrimination on the grounds of gender, in the failure of the state to take adequate action against the threats and

28

29

30

31

Dogru v France (application no. 27058/95); Kervanci v France (application 31645/04); Mann Singh v France (application no. 24479/07); Aktas v. France (application no. 43563/08), Bayrak v. France (no. 14308/08), Gamaleddyn v. France (no. 18527/08), Ghazal v. France (no. 29134/08), J. Singh v. France (no. 25463/08) and R. Singh v. France (no. 27561/08). See for example, Eve and Carl Buzawa, Domestic Violence: The Criminal Justice Response, 3rd edition, SAGE publications, 2002. A strong example of this – and the duties on the state that were being violated – was set out in the major 2005 ruling of the European Court of Human Rights in Moldavan and Others v Romania. Applications 41139/98 and 64320/01. See also Helen O’Nions, Minority Rights Protection in International Law, Ashgate, 2007. Opuz v Turkey (Application no. 33401/02).

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violence the Kurdish women suffered. The court did note, as relevant to its ruling, that the highest numbers suffering domestic violence in reports on Turkey are in Diyabakir, where the women lived, and most of these victims were Kurdish and illiterate. It did not go on, (as it did not appear to apply in this particularly case) to point out that this could also mean that many victims would not speak Turkish so would have difficulty in communicating with the authorities.32 However with the European Court making clear that failure to address violence against minorities or women can amount to discrimination, it would seem the standards themselves are adequate. It is developing the practice of the state institutions that are supposed to protect all the population from violence, to meet the needs of women members of minorities, that is needed.

5. Conclusion It is clear then that vulnerable groups within minorities often have particular needs and problems. The situation of Kurdish women suffering domestic violence in Turkey may be a more ‘classic’ case -of suffering double neglect, or discrimination – due to their ethnicity and gender. The issues of discrimination in special rules that minorities practice, with state sanction on membership or personal laws, are one where at least some of the minorities claim a right to discriminate, at least on the grounds of gender. Closely related to this is the attempt by some religious minorities to claim a right to discriminate on the grounds of sexual orientation when faced with the increasingly successful attempts of LGBT groups to obtain equality in law. But of critical importance is the role the state plays. In Canada, Lebanon, and India the state appears to have come down in favour of those in the minorities who want to discriminate – although in Canada it may be being dragged by litigation towards equality. However in South Africa, and, it appears, now in Britain, the state seems to give much more stronger support to equality over any minority right to discriminate. The French and German examples are a different category still. Here the state claims to be defending vulnerable members of a minority religious group from oppression. However the legitimacy of this claim must be strongly doubted when no evidence of oppression has been produced and when the impact of the measures taken to date has been to exclude the women it is

32

See A Quest for Equality: Minority Rights in Turkey, Minority Rights Group International, 2007.

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supposed to protect from schools and their workplaces. It is in fact, an attempt to impose uniformity, but the outcome is both an attack on a minority and on women within that minority, in the name of defending the women. In addressing the different problems set out above, it does not seem that new actual standards are needed. The long-standing, clear but rarely applied, standard of equality for all regardless of race, gender, sexual orientation or other distinction, should be sufficient in particular when it is understood to mean equality in practice rather than just on paper. In addressing the issues described above though, the standards would benefit from more detail on how to be applied in such situations. As set out above, the specific UN standards for specific vulnerable groups have traditionally said little about intersectional discrimination and vulnerable groups within vulnerable groups, but this is changing. More detailed guidelines in how to deal with issues within the overall standard of equality for all are needed. It is clear guidance on how to apply equality for all that will show how that for minority women suffering the neglect of the state in domestic violence, the state needs to apply the basic standard of equality in how it protects its citizens from violence, and identify and eliminate any practice or failure to act that has a discriminatory impact, i.e. when members of one group are less protected against violence than others. When a minority claims the right to discriminate, this should be assessed, as in South Africa, under an overall standard of equality – with any deviation from that being strictly justified and limited. An overall equality focus will even allow the issue of headscarves to be addressed – meaning that states wanting to limit equality, such as by targeting Muslim women, must have to justify such restrictions, and will need very high justification to do so. The standard of equality is there, it is focusing attention on putting it into practice, to deal with old and new problems, that is needed.

Standards to Eliminate Compounded Discrimination: The Case of the Intersectionality of ‘Minorities within Minorities’ Or, why Universal Legal Standards Must Engage with the Concept of Culture Tove H. Malloy1 1. Introduction Human and minority rights law is facing a new challenge with regard to minority standards. The focus this time is on disadvantaged members of minorities, or ‘minorities within minorities’2 who are discriminated against not only on the basis of their membership of an identity group but also as a result of being structurally3 weak and/or vulnerable4 individuals. The circumstances forcing the human rights discourse to take on discrimination suffered 1 2

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Duerta, European Centre for Minority Issues, Flensburg, Germany. This phrase was coined by Leslie Green, ‘Internal Minorities and their Rights’, in: J. Baker (ed.) Group Rights, Toronto: University of Toronto Press 1994, p. 101–117 and has since been adopted by liberal theorists and philosophers debating illiberal practices within cultural minority groups that oppress minorities within minorities. Expanding the scope of the phrase to include also compounded discrimination against minority members of minorities poses some analytical problems which I will seek to address in this essay. According to Iris Marion Young, structural inequality refers to ‘relative constraints some people encounter in their freedom and material well-being as the cumulative effect of the possibilities of their social position.’ See Young, Inclusion and Democracy, Oxford: Oxford University Press 2000, p. 98. Structure is generally agreed to be one of the most elusive concepts of the social sciences. Most typically it is seen as designating the actual arrangement of individuals and groups into larger entities, i.e. the social facts of society. According to some sociologists, it is furthermore important to differentiate between the concept of weak and the concept of vulnerable. Weak implies lack of resources to cope with sudden, extensive or dramatic changes to the worse of his/her life situation, whereas vulnerable is a person who is in a situation where he/she is in risk of being the object of changes. The person who is resource-weak is thus also vulnerable, whereas the individual who is vulnerable need not necessary be resource weak. See the discussion of Antoinette Hetzler’s theory in: T. H. Malloy and M. Gazzola, The Aspect of Culture in the Social Inclusion of Ethnic Minorities, ECMI Report, No. 60, Flensburg: European Centre for Minority Issues 2006, p. 27–28.

Kristin Henrard, Double Standards Pertaining to Minority Protection, pp. 259–296. © 2010 Koninklijke Brill NV. Printed in the Netherlands.

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by these individuals include among other the escalation of human rights violations during armed and frozen conflicts as well as in failed states, the increased socio-economic inequality throughout the world, and the allegedly failed multiculturalism policies. Minority members within minorities are identified as women, minors, disabled and gays/lesbians.5 According to the discourse articulations, minorities within minorities are disadvantaged first as being members of an identity group, such as racial,6 ethnic, national, religious or linguistic minorities and indigenous groups, and second they are vulnerable due to their social situation, such as gender, being a minor, or having a disability as well as due to sexual orientation. Moreover, minorities within minorities may also experience a third structural disadvantage in terms of poor living conditions, such as being in war zones, refugee camps, rural areas or ghettos. Hence, attention is not only on discrimination with regard to membership of identity groups and social circumstances, but also as a result of structural conditions. This compounded discrimination causes what has been termed ‘triple disadvantage’,7 or the notion that certain members of minorities suffer discrimination on multiple fronts, such as identity, socio-culture and structure. This paper seeks to shed light on the complex relation between the human condition causing compounded discrimination and international human and minority rights law. It is particularly concerned with the issue of culture in this relationship. First, I offer a brief overview of some of the theoretical issues related to understanding, regulating and adjudicating compounded discrimination. Next, I give a brief overview of the current international approach to eliminate compound discrimination followed by a discussion of the problems facing universal legal standard-setting in terms of substantive rights of

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Includes transsexuals and intersexuals. See Christine Goodwin v. the United Kingdom, 11.7.02, ECHR, No. 28957/95. It is problematic to define racial groups. International law has always mandated a broad definition of the term race so as to encompass all discriminatory acts that the documents aim to proscribe. This is demonstrated in various international documents which address the issue of racial discrimination by referring solely to discrimination on account of ‘race’, without mention of ‘ethnicity’ See, e.g., the United Nations Charter (1945); Art. 2 of the United Nations Universal Declaration of Human Rights (1948); the International Covenant on Civil and Political Rights, (ICCPR) (1966), Art. 2(1) as well as Art. 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Sia Spiliopoulou Åkermark following Delyth Morris defines triple disadvantage as the disadvantages that women suffer firstly by virtue of their gender, secondly by virtue of their membership in a minority, and thirdly by living in peripheral areas, being handicapped or forced into a refugee or migrant status. See Åkermark, Human Rights of Minority Women. A Manual of International Law, Mariehamn: The Åland Islands Peace Institute 2000, p. 12.

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members of minorities and infringements of these. To put this in perspective, I examine different systems of justice and equality in relation to multiple disadvantage. This includes a discussion of the intersectionality of structural and cultural disadvantage as well as a discussion of the dilemmas that cultural discrimination poses to public governance. In a final discussion, I examine some of the possible remedies suggested by scholars to overcome these cultural dilemmas. In concluding, I offer a modest idea of how to mainstream against compounded discrimination in universal legal standard-setting as well as a proposal for how universal legal standards might adopt a richer notion of culture in future standard-setting.

2. Theoretical Issues The scientific term for the human condition which incurs compounded discrimination is intersectionality, meaning the notion that identity, social and structural categories are intrinsically inter-related and linked in a relationship of complexity and socio-cultural power hierarchies. In an ethical sense it means the process of becoming the Other within a general majority culture. The concept was first introduced in feminist theory8 as a response to a certain blindness in that theory towards the way in which various categories, such as gender and race interact and create new identity processes rather than co-exist as separate categories.9 It has later been perfected to explain compounded discrimination not in terms of additive intersectionality but in terms of transversal intra-section of intertwining, pervading and mutually transforming categories. It is thus clearly an inter-disciplinary concept. As with many theoretical approaches, intersectionality has formed ‘schools’ of thought of which a North American, a British and a Nordic constitute the major ones. The Nordic one is exemplified by incorporating power analysis as an important aspect of intersectionality. By introducing power as a variable, Nordic scholars have been able to deconstruct and destabilize the universalism of categories, such as gender and ethnicity as well as binaries like woman/man and black/white.10

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It was however in law that the need to understand intersectionality was first introduced as a response to the challenges of compounded discrimination. See J. Jedwab and I. Donaldson, ‘Intersections of Diversity’, Canadian Ethnic Studies, 35(3), p. 1. See specifically, Kimberle Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color’, Stanford Law Review, 43, 1991, p. 1241–1279. See Susanne V. Knudsen, Intersectionality – A Theoretical Inspiration in the Analysis of Minority Cultures and Identities in Textbooks, Paper presented to the Eight International Conference

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This has enabled them to analyze intersectionality in terms of inclusion and exclusion. Finally, the complexity of intersectionality has been refined in terms of three processes. One, the anti-categorical one is akin to the Nordic approach of deconstructing categories in order to identify mechanisms of inclusion and exclusion. The second, the intra-categorical analysis allows for examining crossing categories that might otherwise be overlooked in a conventional approach to complexity.11 And the third type of process, the inter-categorical one allows for identifying structural relationships across the board, meaning comparing among all categories at once rather than only two at the time.12 Whichever approach is followed, the concept of intersectionality is clearly a helpful tool to understand social relationships and therefore indispensable in the efforts to promote positive social change through human and minority rights law. This raises at least two issues of moral and legal theory. First, antidiscrimination legislation seeking to protect minorities within minorities must take into account the justification for eliminating disadvantages. Allowing structural disadvantage is usually considered morally wrong on the notion that all human beings have equal moral worth. However, there are distinctions made about structural disadvantage. The permanent state of structural disadvantage is considered unfortunate and a person who is born with a social disadvantage due to race, gender, age, disability or sexual orientation should not be penalised. On the contrary, a person who is structurally disadvantaged due to a temporary condition, such as living in war zones, refugee camps, rural areas or ghettos is less likely to yield the same type of strong sympathy. In other words, there is a moral obligation to help persons, who are structurally disadvantaged due to permanent inequality, whereas there is less consensus about alleviating economic disadvantage due to poor living conditions and poverty. Only in strong welfare states is structural disadvantage caused by economic deprivation considered a moral issue. Economic policies mitigating the disadvantaged circumstances of especially women, children, disabled and gays/lesbians therefore show the benevolence of governments towards preventing compounded discrimination due to intersectionality. In contradistinction to permanent and temporary disadvantage, cultural disadvantage is more complex. While protecting against discrimination on the basis of identity membership of cultural minorities, such as racial, ethnic,

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on Learning and Educational Media, Caen, France, 26–29 October 2005 available online at http://www.caen.iufm.fr/colloque_iartem/pdf/knudsen.pdf (accessed 25 April 2009). See Kimberle Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color’, Stanford Law Review, 43, 1991, p. 1241–1279. See Leslie Mc Call, ‘The Complexity of Intersectionality’, Signs, 3, 2005, p. 1771–1800.

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national, religious or language minorities and indigenous groups13 is now considered a moral duty in many countries, protection of the individual member of a cultural minority requires a distinction between not only the types of discrimination, as noted above, but also the types of perpetrators. If the individual is suffering cultural discrimination14 from external sources, meaning perpetrators are located outside the cultural minority, there is usually a moral duty of the state to protect the individual member according to equal citizenship rights based on the moral norms of society.15 Examples of this type of external cultural discrimination are the barring of Roma women from entering shops due to their traditional dress style,16 or rejecting Muslim women employment due to their tradition of wearing a headscarf. However, if the individual is suffering discrimination from internal sources, meaning from within the cultural minority, the moral duty of the state may come into question in those cases where the cultural minority has been awarded collective minority group rights, such as cultural autonomy or self-determination.17 Unlike social and economic discrimination, protection against cultural discrimination of individual members due to the identity-related traditions of the minority, what one might call ‘member-versus-minority,’ must be justified not only on the basis of the right of the cultural minority to protection of its group identity but also on the basis of the citizenship right of the individual member of the minority to protection against both cultural discrimination and structural disadvantage. An example of this type of internal cultural

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In the following ‘cultural minority’ will refer to groups that are defined according to race, ethnicity, national belonging, religion or language and belonging to an indigenous group. Race is included due to the broad definition. See note 5. This is not to argue for a homogenous approach to minority rights. On the contrary, a targeted approach taking into consideration the specific needs of cultural minorities and indigenous groups and aimed at high standards is superior to a generic approach setting minimum standards. See W. Kymlicka, Multicultural Odysseys. Navigating the New International Politics of Diversity, Oxford: Oxford University Press 2007. Cultural discrimination has also been called ascriptive discrimination. See V. Bader, ‘Associative democracy and minorities within minorities’, in: A. Eisenberg and J. SpinnerHalev (eds.), Minorities within Minorities. Equality, Rights and Diversity Cambridge: Cambridge University Press 2005, p. 319–339 at p. 331. The concept of citizenship rights is used here to encompass all the universal rights that people residing in a state are entitled to as a registered resident of a territory. It is not necessarily restricted to person who holds a passport of that sovereign territory. The reason is instrumental in that it is feared that Roma women who wear large, full skirts will be able to hide stolen goods under the garment. The case is described in Åkermark, Human Rights of Minority Women. A Manual of International Law, p. 13. See Will Kymlicka’s ‘Discussion of internal restrictions and external protections’, in: W. Kymlicka, Multicultural Citizenship, Oxford: Clarendon Press 1995, p. 35–44.

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discrimination is the decision of parents not to send their daughters to kindergarten or school either because these establishments are seen as teaching doctrines that violate the religion of the parents or because it is uncommon in their culture to educate girls. When states adopt collective group rights for cultural minority groups, such as historic national minorities and religious immigrant communities in Europe or the Native Americans in North America, they run the risk that these autonomy or self-government rights conflict or trump certain individual citizenship rights. The elimination of discrimination against individual members of autonomous minorities may therefore require careful scrutiny of the cultural traditions and customs of the minority in order not to compromise the individual member’s rights when respecting the rights of the collective group. The second issue for minority-within-minority anti-discrimination standards is thus a jurisdictional one. Since the clash between the right of the cultural minority, as a group, and the right of the member of the minority, as an individual, results in a hierarchy of rights, a division of jurisdictional authority may be necessary in order to adjudicate these rights. Cultural minority group rights are usually adopted by the state for partial segments of the population and at times implemented in co-operation with these segments, i.e. the cultural minorities. In case of external discrimination against a member of a cultural minority, the state would be able to adjudicate on the basis of compliance with individual (constitutional) equal citizenship rights and where applicable international human rights. However, in the case of internal discrimination the state would have to adjudicate by reconciling the collective group rights of the cultural minority and the individual equal citizenship rights of the member. The division of jurisdictional authority is thus a question of how to safeguard the rights of individual members if the hierarchy of rights gives priority to collective group rights. This division of jurisdictional authority between the state and the autonomous minority due to the positioning of rights in a hierarchy has become political dilemmas to a number of states (and the judges adjudicating for the state). Clearly, the political terrain for seeking to eliminate cultural discrimination due to intersectionality and minority-within-minority status does not offer a clear path towards normative theorising. In the following, I will seek to throw some light on this muddled state of affairs concerning protection of multiple disadvantaged minority-within-minority members.

3. Normative Internationalism The normative framework to combat compounded discrimination is aggregated. There is no single international standard setting document addressing

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compounded discrimination causing multiple disadvantage due to minoritywithin-minority status. It goes without saying that eliminating compounded discrimination against minorities within minorities is a question of a multicultural anti-discrimination approach. Where the classic anti-discrimination approach treats people equal irrespective of gender, culture and race, the multicultural anti-discrimination approach claims that when cultural difference is disregarded, this will often deny people their equality. Differential treatment is thus necessary to ensure that people are being treated the same.18 The approach of universal legal standards is an aggregated multiculturalist approach to nondiscrimination which prohibits actions that discriminate on the basis of race, colour, gender, language, religion or social origin.19 Thus, some speak of an emerging ‘synergy’ between numerous standards, norms and international efforts to protect minorities within minorities who are discriminated against due to one or more circumstances.20 In terms of standard-setting instruments one could plausible argue that the synergy lies in the cross-referencing in many instruments to the primacy of human rights as well as to other international instruments. The cross-linking between substantive rights and nondiscrimination clauses is a similar technique. Hence, the right to protect one’s cultural identity is included not only in cultural minority-targeted instruments but also in universally targeted instruments.21 In case law, the right not to be discriminated against is often cross-referenced to cultural minorityspecific circumstances, such as substantive rights to minority education and minority family life. The synergy reading of aggregated standards is thus currently one strategy that militates against minority-within-minority related compounded discrimination causing multiple disadvantage. Outside the legal discourse, the norm-setting aggregation lies in the efforts by international and national development organisations to alleviate disadvantaged living conditions and poverty through the global initiative of good governance. Many of these organisations have only recently 18

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A. Phillips, Multiculturalism without Culture, Princeton: Princeton University Press 2007, p. 106. Articles 4, 6, 7, 8, 11, 15, 16, and 18 of the International Covenant of Civil and Political Rights. I borrow this analogy from Kristin Henrard. The synergy argument rests on the assumption that minority-specific and non-minority-specific instruments work combined to protect members of minorities. See Henrard, ‘Ever-Increasing Synergy towards a Stronger Level of Minority Protection between Minority-Specific and Non-Minority-Specific Instruments’, in: 3 European Yearbook of Minority Issues, (2003/4), Leiden: Martinus Nijhoff Publishers 2005, p. 15–41. See also, K. Henrard and Robert Dunbar (eds.), Synergies in Minority Protection, Cambridge: Cambridge University Press 2008. An example is Article 30 of the Convention of the Rights of the Child.

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begun to refer to human rights in their policies and programmes.22 Notwithstanding the problem that combining universal legal standards and poverty alleviation may be a complex matter,23 standards protecting against minority-within-minority discrimination must therefore be held together with policies seeking to alleviate economic disadvantage. This is clearly a laborious approach and indeed not a guaranteed successful approach. While members of racial groups,24 women,25 children26 and disabled27 are protected by universal treaty mandates that award category-specific rights, gays/lesbians28 22

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The World Bank statutes do not make reference to human rights and for years the Bank’s board considered it the Bank’s primary duty to enhance economic development and alleviate poverty. After coming under increased pressure to incorporate human rights concerns in its policies, the World Bank finally began a mainstreaming in the 1990s. See Katarina Tomasevski’s scathing attack on the World Bank’s education policies. Tomasevski, ‘Both arsonist and fire-fighter: the World Bank on school fees’ available at http://www .brettonwoodsproject.org/art.shtml?x=542516 (visited 22 January 2008). International Convention for the Elimination of All Forms of Racial Discrimination ( ICERD) (1965). Convention for the Elimination of Discrimination against Women (CEDAW) (1979). Convention on the Rights of the Child (1989). Universal legal standards on the protection of disabled developed slowly over the second half of the twentieth century with numerous instruments referring to the rights of disabled to be protected against discrimination on the basis of inferior physical or mental capabilities. A Declaration on the Rights of Disabled Persons was proclaimed in 1975 and 1981 was the International Year of Disabled Persons. Moreover, 3 December is the International Day of Disabled Persons and the decade 1983 to 1992 was the UN Decade of Disabled Persons. Since 1994 there has furthermore been a Special Rapporteur on Disability reporting to the Commission for Social Development. However, the beginning of the twentieth first century saw the most important development with the adoption on 13 December 2006 of the Convention on the Rights of Persons with Disabilities as well as its Optional Protocol. The Convention had 82 signatories on the opening day; apparently the highest number of signatories in history to a UN convention on opening day. The Convention represents a shift in social relations by moving away from viewing persons with disabilities as ‘objects’ of charity, medical treatment and social protection towards viewing persons with disabilities as “subjects” with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society. The Convention is intended as a human rights instrument with an explicit, social development dimension. It adopts a broad categorization of persons with disabilities and reaffirms that all persons with all types of disabilities must enjoy all human rights and fundamental freedoms. It clarifies and qualifies how all categories of rights apply to persons with disabilities and identifies areas where adaptations have to be made for persons with disabilities to effectively exercise their rights and areas where their rights have been violated, and where protection of rights must be reinforced. The Convention was negotiated during eight sessions of an Ad Hoc Committee of the General Assembly from 2002 to 2006, making it the fastest negotiated human rights treaty. A general approach to protect gays/lesbians against discrimination has not been characteristic of universal legal standards. None of the international human rights instruments

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do not enjoy such full protection. They do of course enjoy universal human rights protection. Moreover, while there are both human rights and humanitarian law standards for protection of all individuals in war zones29 and targeted treaty mandate instruments for refugees,30 there are only generic social and economic standards protecting against living in ghettos and under-developed rural areas. Finally, while there are cultural minoritytargeted instruments with category-specific rights protecting members of ethnic, national, religious and linguistic minorities31 as well as indigenous

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mentioned make any reference to ‘sexual orientation’ or ‘gender identity’. Instead there are treaties and programmes dealing with discrimination on the basis of race and sex, and concerns with specific groups such as refugees, cultural minorities, indigenous peoples and migrant workers. Only through invoking provisions on personal privacy and certain general provisions on equality have lesbians and gay men been able to gain some recognition. By the end of the twentieth century concern with discrimination on the basis of sexual orientation had gained sufficient recognition in national legal systems, in the European human rights system and various European institutions, in actions of the United Nations treaty bodies, special procedures and working groups, in initiatives of the UN High Commissioner for Human Rights, and in the work of important Non-Governmental Organizations that it had become realistic to say that the issue was now a part of a broad international human rights agenda, though progress often continues to be contested. For gays and lesbians the United Nations system, at the moment, is partly open and partly closed. The 1996 post-apartheid constitution of South Africa was the first in the world to expressly prohibit discrimination on the basis of sexual orientation. Similar express wording was included in subsequent new constitutions in Fiji, Ecuador and Portugal. An amendment to the constitution of Switzerland bans discrimination on the basis of ‘form of life’, a phrase intended to include sexual life. In a number of other states general constitutional guarantees of equality have been interpreted to prohibit discrimination on the basis of sexual orientation. In the domestic legal systems of leading states human rights norms now require decriminalization, individual equality, equal spousal benefits and partner immigration rights. Significantly, these developments are no longer limited to states in the western bloc. Lesbian and gay representatives have been able to get into important meetings such as the Vienna World Conference on Human Rights, the Beijing Conference on Women, and the Durban Conference on Racism and Xenophobia. Gay and lesbian concerns have not yet appeared in the final conference statements of any of these large UN sponsored meetings. In 2001 there were fights over participation in two major UN meetings. In both cases, some lesbian and gay participation occurred. No gay or lesbian organizations have on-going ‘consultative status’ at the United Nations. There are a limited but growing number of states and non-governmental organisations that speak out in favour of lesbian and gay equality rights in international meetings. D. Sanders, ‘Human Rights and Sexual Orientation in International Law’ available at http://www.ilga.org/news_results.asp?LanguageID=1&FileCategory=44&FileID=577 (visited 22 January 2008). Geneva Conventions (1949); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984). Convention relating to the status of Refugees (1951). International Covenant on Civil and Political Rights (ICCPR), Art. 27; Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities

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peoples,32 members of non-recognised minorities, such as Roma/Sinti and immigrants often do not enjoy protection as minorities except for basic human rights. The aggregation becomes clearer when examining minority case law. Notwithstanding the argument that it is common knowledge that the international framework is weak since it does not include many enforcement mechanisms by litigation, the cross-referencing between substantive rights and non-discrimination rights in minority case law provides for some synergy both within one instrument and also in so far that substantive rights included in cultural minority-targeted instruments are often borrowed from other universally-targeted instruments. These minority cases pertain to socio-economic rights,33 family life rights,34 liberty rights,35 lifestyle rights,36 freedom of religion,37 free elections,38 education rights39 and due process.40 Most minority cases pertain to discrimination causing primary and secondary disadvantage. However, minority case law pertaining specifically to compounded discrimination due to identity-related minority-within-minority status and structural disadvantage is virtually non-existing. One case can be identified.41 Of course,

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(1992); European Framework Convention for the Protection of National Minorities (FCNM) (1995). Declaration on the Rights of Indigenous Peoples (2007). Communication No. 1/1984, A. Yilmaz Dogan v. the Netherlands, CERD/C/36//1/1984, 29.09.1988. Abdulazis, Cabales and Balkandali v. the United Kingdom, 28.05.1985, ECHR, Nos. 9214/80, 9473/81, 9474/81; Hoffman v. Austria, 23.06.1993, ECHR, No. 12875/87; Inhabitants of Les Fourons v. Belgium, 30.04.1974, ECHR, No. 2209/64; Sahin v. Germany, 11.10.2001, ECHR, No. 30943/96; Skender v. the FYROM, 22.11.2001, ECHR, No. 62059/00; X v. Belgium, 02.02.1971, ECHR, No. 4372/70; Dahlab v. Switzerland, 15.2.01, ECHR, No. 42393/98. Bouamar v. Belgium, 29.02.1998, ECHR, No. 9106/80; Svilenko v. Latvia, 09.03.2003, ECHR, No. 48321/99. Buckley v. the UK, 25.09.1996, ECHR, No. 20348/92. Efstratitiou v. Greece, 18.12.1996, ECHR, No. 24095/94; Hoffman v. Austria, 23.06.1993, ECHR, No. 12875/87; Karakuzey v. Germany, 16.10.1996, ECHR, No. 26568/95; Valsamis v. Greece, 18.12.1996, ECHR, No. 21787/93; Podkolziona v. Latvia, 09.04.2002, ECHR, No. 46726/99. Access to German Minority Schools in Upper Silesia, 15.05.1931, PCIJ, Series A/B, No. 40; Minority Schools in Albania, 06.04.1935, PCIJ, Series A/B, No. 64; See note 38. See Slivenko v. Latvia, 09.03.2003, ECHR, No. 48321/99. In Slivenko v. Latvia, Ms. Slivenko and her daughter were former Latvian residents of Russian origin and the wife and daughter of a Soviet military officer. They were required to leave Latvian territory following the withdrawal of Russian troops in 1994 but ended up in a detention camp for illegal immigrants. The case clearly evidences discrimination on the basis of gender, cultural minority group membership and living conditions. If the daughter was underage at the time of detention, one might argue for a case of quadruple disadvantage.

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the classic cases in international law of cultural traditions causing discrimination against individual members of minorities are cases related to indigenous peoples’ culture and traditions.42 These cases do not, however, concern multiple disadvantage unless we argue that indigenous peoples are economically disadvantaged because the reservations that they have been granted constitute under-developed rural areas without natural resources or agricultural potential. While this is often the reality, litigation along these lines has not been seen at the international level.43 The most complex cases of compounded discrimination causing multiple disadvantage due to minority-within-minority status within a cultural minority are in fact litigated at the domestic level and often involve criminal proceedings.44 These pertain directly to cultural discrimination committed by internal perpetrators as discussed in detail below. Finally, there are numerous Opinions, General Comments and Recommendations issued by expert committees which cross-reference between instruments and cross-link non-discrimination and substantive rights. By the nature of having multi-disciplinary legal experts drafting these documents, there is rich opportunity to ensure cross-referencing between and within instruments. These opinions refer mostly to double discrimination and double disadvantage.45 Moreover, committees operating under the universally targeted treaty mandates, which do not address cultural minority issues, often review cultural minority-related discrimination.46 The emerging synergy is probably most visible in these complex documents. However, the weak synergy between universal human rights and development programmes as well as national welfare policies leaves the aim of aggregation unachieved. Although human rights conditionality has become a common approach used by many development

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See Santa Clara Pueblo v. Martinez 436 U.S. 49 (1978); Communication No. R.6/24, Sandra Lovelace v. Canada, CCPR, 29 December 1977, U.N. Doc. Supp. No. 40 (A/36/40) at 166 (1981); Communication No. 167/1984, Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada, CCPR/C/38/D/167/1984, 10.5.90. See, C. Samson, Canada’s Tibet - the killing of the Innu, Survival International 1999 and A Way of Life that Does Not Exist: Canada and the Extinguishment of the Innu, London: Verso 2003. See People v. Moua and People v. Chen for criminal cases and R (on the application of Begum) v. Head Teacher and Governors of Denbigh High School (2006) described in Section 4.2. For example Committee on Economic, Social and Cultural Rights, General Comments Nr. 5 (Disability); Committee on the Elimination of Racial Discrimination, General Recommendation Nr. 27 (Roma); Committee on the Elimination of Discrimination against Women, General Recommendation nr. 18 (Disabled women); Committee on the Rights of the Child, General Comment Nr. 3 (HIV/AIDS). See Committee on the Elimination of Racial Discrimination, General Recommendation Nr. 21 (Self-determination) and Nr. 27 (Roma); Committee on the Elimination of Discrimination against Women, General Recommendation Nr. 14 (Female circumcision), and Committee on the Rights of the Child, General Comment Nr. 3 (HIV/AIDS) and Nr. 4 (Adolescent health).

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agencies, it has also been implemented in a rather discerning manner in terms of minority rights.47 Treating human rights as ‘bureaucratic small change’ may actually result in dissipation of human rights.48 The need to combine formal and material justice is therefore the core concern of this examination.49 What are the primary issues of material justice that formal justice should be able to address in terms of compounded discrimination due to cultural membership? How are these issues currently being addressed in multicultural societies and at the international level? How may we safeguard against compounded discrimination that causes multiple disadvantage due to minority-withinminority status within cultural groups? These are some of the questions to be addressed below.

4. The Problems and the Paradox There has been no shortage of legal publicists writing about the multiple disadvantages of women, children, disabled and gays/lesbians as a result of socio-economic discrimination. Especially, the need to protect motherhood and childhood against unfair treatment in both the public and the private spheres has been examined. Certainly, the attention to the educational plight of minority children as ‘the invisible of the invisible’ has received good examination.50 Moreover, the need to protect womanhood came into focus after the UN Fourth World Conference on Women in 1995. Similarly, the attention to the plight of disabled people has improved with the adoption of the Convention on the Rights of Persons with Disabilities.51 Except for gay/ lesbians, the attention to the intersectionality of minority-within-minority is

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The classic examples are of course the accession negotiations between the European Union and the Baltic states in which the EU approved accession reports that were equivocal on the need to meet minority rights standards. See D. Kochenov, ‘Commission’s Approach to Minority Protection during the Preparation of the EU’s Eastern Enlargement: Is 2 Better than the Promised 1?’ European Diversity and Autonomy Papers – EDAP, No. 2 (2007) available at http://www.eurac.edu/documents/edap/2007_edap02.pdf (visited 22 January 2008). P. Allott, Eunomia. New Order for a New World, Oxford: Oxford University Press 1990, p. 288, Section 15.66. I use a rough distinction between formal and material justice equating the former with law and the latter with morality or politics. See T. Campbell, Justice, 2nd edition, London: Macmillan Press 2001, p. 29. G. van Bueren, ‘Of Minors and Minorities’, in: D. Fottrell and B. Bowring (eds.), Minority and Group Rights in the New Millennium, The Hague: Martinus Nijhoff Publishers 1999, p. 75–86 at p. 80. See note 26.

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clearly drawing increased attention at the international level. However, few legal publicists have focused on the problem of compounded discrimination against minorities-within-minorities in relation to cultural minority status.52 Of course scholars of minority law focus on the protection of the individual member when debating minority rights. But in essence the focus is on the right of the cultural minority to protect its culture as a group, not as individuals belonging to a cultural group. The difference is significant. On the first notion, the identity of the group as the group defines it is the essential element that needs protection through a targeted cultural rights approach. On the second notion, protection of the identity of the individual as she defines it is in focus. This requires a cultural rights approach that is aggregated but more importantly intersectional. This is not to say that one or the other is bad, but that when it comes to discrimination causing multiple disadvantage one approach is currently not enough. Moreover, in the case of seeing minority rights protection as a group issue, the legal scholar risks reifying culture as a homogenising, essentialising, boundary drawing notion of groupness.53 Our understanding of culture has tended to exaggerate the internal unity of cultural groups thus solidifying differences rather than seeing culture and difference as very fluid notions. The acceptance of this solidifying notion, consciously or sub-consciously, contributes to suppressing the second approach to minority rights, namely the notion that sees individuals as carriers of culture but carriers of their own notion ascribed and accepted in a process of selfidentification that allows for not only cultural identity-formation but also identity-formation, i.e. along the lines of structural ascription, such as gender, age, disability and sexual orientation. This cultural problematic is therefore the focus of the remainder of this article.

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Exceptions are D. Sanders, ‘Collective Rights’, Human Rights Quarterly, 13, 1991, p. 368–386; L. Green, ‘Internal Minorities and their Rights’, in: J. Baker (ed.), Group Rights, Toronto: University of Toronto Press 1994, p. 101–117; S. Spiliopoulou Åkermark, Human Rights of Minority Women. A Manual of International Law, Mariehamn: The Åland Islands Peace Institute 2000; A. Shachar, ‘The Puzzle of Interlocking Power Hierarchies: Sharing the Pieces of Jurisdictional Authority’, in: 35/2 Harvard Civil Rights-Civil Liberties Law Review, 2005, p. 387–426; P. Thornberry, ‘ “Article 12”, and “Article 13” ’, in: Marc Weller (ed.), The Rights of Minorities. A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press 2005, p. 365–406. See also note 91. A. Phillips, Multiculturalism without Culture, Princeton: Princeton University Press 2007, p. 14. For a good argument of similar character about ethnicity, see R. Brubaker, Ethnicity without Groups, Cambridge, MA: Harvard University Press 2004. On page 8 in his book, Brubaker argues that there is a ‘tendency to take discrete, sharply differentiated, internally homogeneous and externally bounded groups as basic constituents of social life, chief protagonists of social conflict, and fundamental units of social analysis’.

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The few scholars who have addressed the issue of internal cultural discrimination have not surprisingly focused on education of the young and the family law pertaining to female membership. This is because it is in the field of education and the family that the young and the female members of cultural minorities are most likely to experience multiple disadvantage. Douglas Sanders highlights two types of internal cultural discrimination. The first results from the state accepting collective rights of cultural minorities over the rights of individual women54 and minors.55 States have sanctioned restrictions on the freedoms of women and the right to education of children of members of cultural minorities. The second type results from cultural practices that violate human rights standards, such as life and health, sexual equality and nondiscrimination. Examples of life and health issues are children whose parents are Jehovah’s Witnesses and therefore deny the children medical care on religious grounds.56 Leslie Green also raises two internal discrimination issues emanating from cultural membership. One is forced identification with the cultural minority.57 It is discriminatory to violate the individual’s liberal right to freedom of association and self-identification. The other is the practice of polygony58 sanctioned by some of the Mormon faith. The difference between these two examples, according to Green, is that whereas forced identification makes it difficult for the member to leave the cultural minority, i.e. exercise her right to exit, the practice of polygony can be overcome by taking exit from the cultural minority. Notwithstanding that the question of exit is hugely controversial,59 Green admits that ‘the task of making respect for minority 54

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Santa Clara Pueblo v. Martinez 436 U.S. 49 (1978); Attorney General of Canada v. Lavell S.C.R. 1349 (Can. 1974), Sandra Lovelace v. Canada, CCPR, 29 December 1977, U.N. Doc. Supp. No. 40 (A/36/40) at 166 (1981); Mohammad Ahmed Khan v. Shah Bano 3 S.C.R. 844 (India, 1985), and Caldwell v. Stewart 2 S.C.R. 603 (Can. 1984). Wisconsin v. Yoder, 406 U.S. 205 (1972). See further, Sanders, ‘Collective Rights’, in: 13 Human Rights Quarterly, 1991, p. 379–80. Thomas v. Norris 2 C.N.L.R. 139 (1992). A form of marriage practised in many cultures and often sanctioned by religion in which one man has more than one wife at the same time. With regard to the right of exit a debate has been going on among theorists for decades. Essentially, the discussion centres on whether it is realistic to assume that a person is able to leave not so much physically as psychologically and mentally. Liberals argue that it is feasible and the liberal society will provide ample substitutes for the feeling of belonging, whereas communitarians argue that the moral sources derived from cultural belonging can not be substituted easily and without costs to the individual who decides to exit. See the exchange between Chandran Kukathas and Will Kymlicka in: 20/1 Political Theory 1992, p. 105–39 and p. 140–46 as well as 4 Political Theory 1992, p. 64–680. See also the involved arguments by Charles Taylor in: C. Taylor, Sources of the Self: The Making of the Modern Identity, Cambridge, MA: Harvard University Press, 1989.

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rights real is thus one that falls not just to the majority but also to the minority groups themselves.’60 This is precisely why Patrick Thornberry highlights the tension in cultural minority rights between protecting the authenticity of minority culture while also protecting the human dignity of the individual member. In his analysis of Article 12 of the Framework Convention for the Protection of National Minorities (FCNM), Thornberry warns that the insensitive approach to culture adopted by the European Court of Human Rights,61 should not guide the monitoring of the FCNM.62 The Court has applied a double essentialism, according to Thornberry, that is little helpful in promoting inter-cultural understanding and mutual respect for diverse traditions and customs. Instead, he suggests that the Advisory Committee should devise strategies to show sensitivity to ways in which minorities represent their own cultures. This has ramifications not only in the field of education but also in the area of gender equality and hence for the risk of double discrimination. Likewise, Thornberry calls on the Advisory Committee to pay attention to the special schools that minority children of Roma and Sinti groups often attend. These are clearly a sign of compounded discrimination causing multiple disadvantage to minority Roma and Sinti children. Moreover, on minority education establishments, Thornberry also sounds the warning bell.63 There is a fine line between the ideal of own institutions and separatist policies which could go against the inter-cultural ethos of the FCNM. Issues of equality and non-discrimination may or may not be compromised by the establishment of private schooling for minority children. However, principles of equality and non-discrimination should work in ‘the interface between the general population and minority groups, as well as in that between minority

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Green, ‘Internal Minorities and their Rights’, in: J. Baker (ed.), Group Right, Toronto: University of Toronto Press 1994, p. 117. Refah Partisi (The Welfare Party) and Others v. Turkey (41340/98)(2003) ECHR 87. See also, P. Cumper, ‘Europe, Islam and Democracy – Balancing Religious and Secular Values under the European Convention of Human Rights’, in: 3 European Yearbook of Minority Issues, 4, 2003, p. 163–180. P. Thornberry, ‘Article 12’, in: M. Weller (ed.), The Rights of Minorities. A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press 2005, p. 365–393 at p. 390–393. See also Thornberry, ‘The UN Declaration: Background, Analysis and Observations’, in: A. Phillips and A. Rosas (eds.), Universal Minority Rights, Turku/Åbo and London: Åbo Akademi University Institute for Human Rights and Minority Rights Groups 1995, p. 11–71. P. Thornberry, ‘Article 13’, in: M. Weller (ed.), The Rights of Minorities. A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press 2005, p. 395–406 at p. 404–406.

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groups themselves.’64 Finally, Thornberry cautions that issues of curriculum control must also be monitored in order to ascertain any breach of non-discrimination. This is not to suggest that the Advisory Committee does not pay attention to these issues.65 Education and family life is also the core areas of concern highlighted by one of the Advisory Committee’s former members, Sia Spiliopoulou Åkermark. Education, she argues, aims to ‘balancing, on the one hand, the maintenance and development of the culture and the essential elements of the identity of persons belonging to national minorities and, on the other hand, their free integration and participation in the societies where they live.’66 But it can also have contradictionary aims which need to be reconciled, Åkermark argues.67 She specifically highlights the need to pay attention to the needs of children in education. Although the needs of parents to decide about their children’s education are protected in human rights law,68 Åkermark emphasizes the recent shift towards greater attention to the needs of the child after the adoption of the Convention of the Rights of the Child. Both instrumental and primordial needs of the child must be taken into account.69 On the issue of gender, Åkermark also links it to education and the problem of women’s structural disadvantages due to lack of education. Åkermark furthermore highlights the problem of minority women suffering violence within the family and in prisons. One solution to this, she argues, would be to employ more female officers in police stations and prisons.70 Finally, she highlights the issue of curriculum and especially the teaching of history and religion. The need to teach these topics in ‘an objective, critical and pluralistic manner’ is essential to overcome absolutism, intolerance and hatred.71 Both Thornberry and Åkermark highlight some very real tensions in international law with regard to education and family life that need to be monitored and addressed if we want to ensure that internal cultural discrimination does not cause multiple disadvantages. 64 65

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Thornberry, ‘Article 13’, p. 405. Indeed, cultural sensitivity is evidenced in some opinions. See Advisory Committee Opinion on the United Kingdom ACFC/INF/OP/I(2002)006, paragraph 85. Commentary on Education under the Framework Convention for the Protection of National Minorities. ACFC/25DOC(2006)002, p. 6 available at http://www.coe.int/t/e/human_rights/ minorities/1._general_presentation/PDF_CommentaryOnEducation_final_eng.pdf (visited 22 January 2008). Commentary on Education, p. 6 Universal Declaration of Human Rights (UDHR), Art. 26(3) and ECHR, Protocol 1, Art. 2. Commentary on Education, p. 8. Åkermark, Human Rights of Minority Women. A Manual of International Law, Mariehamn: The Åland Islands Peace Institute 2000, p. 93–94. Commentary on Education, p. 11.

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Ayelet Shachar, who is primarily concerned with domestic law, has formulated the dilemma that minority rights law face as ‘a paradox of multicultural vulnerability,’ meaning that the ‘[d]isproportionate allocation of accommodation costs within the group produces intra-group power asymmetries, which differentiate membership for individual group members.’72 Well-meaning accommodation policies by the state, aimed at levelling the playing field between minority communities and the wider society, may unwittingly allow systematic maltreatment of individuals within the accommodated minority group. In certain cases, the impact is so severe that it nullifies these individuals’ rights as citizens. ‘The paradox of multicultural vulnerability [thus] identifies the negative effects of well-meaning multicultural accommodations on group members bearing disproportionate burdens within their own cultural tradition’s comprehensive world view.’73 It is therefore a question of evaluating cultural minority policies because policies which accommodate groups may seem attractive when evaluated in an inter-group perspective but may cause systematic discrimination to the disadvantage of certain group members when evaluated from an intra-group perspective. According to Shachar, this paradox is most deliberate in those areas that contribute to the demarcation of the cultural membership of the minority, i.e. education and family law. Cultural minority groups that seek to preserve the group identity and culture will want to follow their own customs in these two areas. At times, this can lead to putting severe restrictions on the education of the young members thus limiting their social mobility, or in the area of family law, the minority leadership may want to adjudicate marriage contracts and divorces according to cultural customs or religious laws thus putting at risk vulnerable members, such as women and girls who usually have less influence in the power hierarchies of the cultural minority.74 The paradox is further exacerbated by the fact that women and girls often do not want to disrespect the culture of the minority but nevertheless would like to live a life without domination. Shachar therefore suggests that ‘[a] new multicultural paradigm must break away from the either/or opposition that underpins existing solutions to the paradox of multicultural vulnerability.’75 I discuss her suggestions for legal remedies in Section 5.

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A. Shachar, ‘The Puzzle of Interlocking Power Hierarchies: Sharing the Pieces of Jurisdictional Authority’, in: 35/2 Harvard Civil Rights-Civil Liberties Law Review 2005, p. 387–426 at p. 386. Ibid. Shachar, ‘The Puzzle of Interlocking Power Hierarchies: Sharing the Pieces of Jurisdictional Authority’, in: 35/2 Harvard Civil Rights-Civil Liberties Law Review 2005, p. 387–426 at p. 392. Shachar, op.cit. at p. 406. .

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To some, the paradox means a hierarchy of rights, not in the traditional sense of civil and political rights having priority over socio-economic and cultural rights, i.e. the misleading generational paradigm. Instead the hierarchy of rights question stands on whether gender equality rights should override cultural rights and indigenous rights.76 Essentially, this is the good old question of collective rights versus individual rights turned topsy-turvy, querying whether equal citizenship rights, such as gender equality rights should have priority over collective rights to self-government and collective autonomy. As far as the rights of members of racial groups, minors, disabled and gays/ lesbians is concerned, the question thus is whether they have prior protection rights. The issue is, however, different when it comes to economic group rights, such as the hunting and fishing rights of indigenous peoples and the reindeer herding rights of the Sami people. Here the protection of the group’s collective rights contributes to the alleviation of structural disadvantage suffered by individual members. In other words, how do states that have adopted collective self-government rights for cultural minorities or indigenous groups overcome this paradox of multiculturalism? It may be instructive to examine what are the moral issues that universal legal standard-setting is facing. As noted, compounded discrimination causing multiple disadvantage is a question of access to material justice. The function of material justice is commonly defined as ‘giving to each his [or her] due’ with the different views of what is ‘due’ competing and defining different systems of justice.77 Systems of justice relevant for eliminating compounded discrimination causing multiple disadvantage would include social and distributive justice as well as democratic justice. This is not to say that justice is not all-encompassing covering all spheres of human life but for analytical purposes it is instructive to break it into separate systems of material needs.

5. Systems of Justice and Problems of Justice Firstly, compounded discrimination causing permanent structural disadvantage is a question of social justice. Social justice for the purpose of this discussion may refer to the idea that ‘all men [sic] considered merely as men [sic] and apart from their conduct or choice have a claim to an equal share in all those things, here called advantages, which are generally desired and are in

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A. Phillips, ‘Dilemmas of gender and culture: the judge, the democrat and the political activist’, in: A. Eisenberg and J. Spinner-Halev (eds.), Minorities within Minorities, p. 113–134 at p. 115. T. Campbell, Justice, p. 10.

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fact conducive to well-being.’78 Hence, social justice seeking to ensure individual well-being must as a minimum ensure ‘equality of resources’ for all.79 On this view, it may be argued that women, minors, disabled and gays/ lesbians80 have a moral right to receive additional support from society and the state in order to be able to compete on an equal footing with persons who do not suffer discrimination causing multiple disadvantage because of gender, age, disability or sexual orientation. It goes without saying that social justice is an essentially contested concept. Many theorists would argue that social justice must aim as a minimum towards ensuring both equality of resources and ‘equality of opportunity.’81 The need to combine equality of resources with equality of opportunity rests on the moral argument that individuals should be responsible for their own decisions. Hence, only the opportunity to have the resources that they feel they need in order to make their decisions should be the object of equality. Thus, it is not the resources that must be equalised but the opportunity to utilise certain resources in the quest for well-being. Secondly, discrimination causing temporary structural and economic disadvantage in terms of living conditions or poverty is a question of distributive justice. Distributive justice is often conflated with social justice but may be defined separately following Aristotle as ‘the distribution of benefits to social groups.’82 In terms of benefits, distributive justice must address a number of views of equality as diverse as ‘equality of result’83 and ‘equality

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A.M. Honore (1970) quoted in T. Campbell, Justice, p. 26. Equality of resources requires that persons who are born with unequal innate gifts, should be compensated; what applies for social circumstances should also apply for such gifts. This view has been described as a theory of ‘primary goods’ meaning individuals should have equal initial starting-out positions needed for a good life. The view of justice that ensues from this is a justice as fair play which makes sure that the fair play favours the most disadvantaged. A ‘difference principle’ is thus applied which takes into account the fact that the free market cannot protect certain disadvantaged groups. J. Rawls, A Theory of Justice, Oxford: Oxford University Press 1971, p. 76–80 and p. 90–95. Rawls did not included disabled and gays/lesbians in his theory. For a full critique of his omission of protection of disabled, see M. C. Nussbaum, Frontiers of Justice. Disability, Nationality, Species Membership, Cambridge, MA: The Belknap Press of Harvard University Press 2006. In this paper it is assumed that sexual orientation is no more a matter of choice than womanhood, childhood and disability. Equality of opportunity requires the presence of a number of options for each individual similar to the options enjoyed by all other people. R. Arneson, ‘Equality of Opportunity’, in: Stanford Encyclopedia of Philosophy 2002 available at http://plato.stanford.edu/entries/equalopportunity (visited 24 January 2008). T. Campbell, Justice, p. 20. Equality of result is the view that equality should be measured by the results that an institution or policy yields. A social or economic policy seeking to enhance equality in certain

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of welfare,’84 as well as ‘equality of outcome’85 and the aforementioned equality of opportunity. Space does not allow for a full discussion of these types of equality. Suffice it to note that equality is clearly a complex matter. This is why Michael Walzer argues that equality is not achieved through one or another method but must consist of policies that address equality as a complex matter.86 Because of the complexity of life and the plurality of criteria for justice, Walzer argues that we should think of distributive justice in terms of complex equality, meaning that our needs for substantial equality may vary from sphere to sphere.87 This means that in order for the individual to be able to enjoy

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aspects can be judged by the affect it has on the quality of individual people’s lives. For instance, a poverty alleviation policy would only be considered equalising if it yields good results in absolute numbers. However, critics have argued that it is too narrow and one-sided since it only allows for measuring the consequences of the policy not the intentions. In the distribution of justice, the intentions behind a policy of equality are also important. See S. Gosepath, ‘Equality’, in: Stanford Encyclopedia of Philosophy 2007, available at http://plato .stanford.edu/entries/equality (visited 24 January 2008). Equality of welfare, on the other hand, is motivated by the moral view that it is desirable that the amount of human goods gained by each person for herself over the course of her life should be the same. The central criterion for justice must consequently be equalising the material conditions of individuals. However, this conception also raises some problematic issues. The core problem is that what is required for one person’s well-being may not provide other people with a sense of well-being. Moreover, some people may be in greater need of support to achieve well-being than others. It thus requires political deliberation to determine who is most needful. Finally, equality of welfare has been accused of taking away the individual’s incentive to feel responsible for her own well-being possibly resulting in poor administration of her welfare goods. This could mean that distributing welfare goods without distributing educational goods, could have counter-productive results. See R. Arneson, ‘Egalitarianism’, in: Stanford Encyclopedia of Philosophy 2002, available at http://plato .stanford.edu/entries/egalitarianism (visited 24 January 2008). Equality of outcome seeks to reduce or eliminate differences in material condition between individuals or households usually through equalising income and/or wealth. Thus, it equalises where people end up rather than where or how they begin. This need not only be in an economic sense. Outcome in terms of political justice is also seen as part of this view. However, as with the equality of welfare, critics of equality of outcome argue that it disregards the importance of individual responsibility and choice. Moreover, it begs the question of what we are seeking to equalise, and may actually result in delivering inequality on another person, or what is called reverse discrimination. Nevertheless, equality of outcome is seen as being able to address both structural disadvantage and identity-related disadvantage. This is because in focusing on outcomes, it addresses equality in both social and political terms. A. Phillips, ‘Defending equality of outcome’, in: 12/1 Journal of Political Philosophy 2004, p. 1–9. M. Walzer, Spheres of Justice, New York: Basic Books 1983. A sphere is here understood as a sector, such as education or an area, such as political affairs, i.e. any field where domination can happen, or what Walzer terms ‘different times and places’. See, Walzer, Spheres of Justice, p. 3–4.

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equality in all spheres she must be made able to access different types of equality as her needs requires. It follows that different procedural approaches may apply to different types of equality and that a sophisticated design of institutions, offices, laws and policies is needed. Thirdly, discrimination causing permanent structural disadvantage in terms of identity-related membership of a cultural minority is a question of democratic justice. Democratic justice is considerably more difficult to define than the first two types of justice primarily because it is subject to constant deliberation within political units, such as the national state. Indeed, some scholars have argued that democratic justice is best seen as undecidable.88 It is through the political deliberation that most cultural minorities achieve collective group rights. As all types of democratic equality are essentially negotiated in competition with ideals of freedom, democratic justice is the field where this problematic plays out most vividly. Theories of democratic equality fall in two major categories, those that emphasise freedom before equality by arguing that if the individual has adequate freedoms she will be able to achieve equality, and those that emphasise equality before freedom, arguing that freedom can not be had without equality. With regard to identity-related equality for members of minorities, the major issues in democratic justice therefore concern the ‘equality of status.’89 The ‘politics of recognition’ seeking equality of status for cultural minorities has resulted in a momentum in the general acceptance of the recognition and rights of cultural minorities.90 Democratic justice for cultural minorities is now by and large considered a moral obligation at least at the international level. At the domestic level, the process is more political and governments are reluctant to go too far with equality of status. 88

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See J. Derrida, ‘Force of Law: The “Mystical Foundation of Authority” ”, in: D. Cornell, M. Rosenfeld and D. Gray Carlton (eds.), Deconstruction and the Possibility of Justice, New York: Routledge 1992, p. 3–67 and W. E. Connolly, The Ethos of Pluralization, Minneapolis: University of Minnesota Press 1995, p. 180–188. See also T.H. Malloy, National Minority Rights in Europe, Oxford: Oxford University Press 2005, Chapter 5. Equality of status is quite different from any of the types of equality discussed. Status in democratic justice refers to recognition, i.e. recognition of difference and recognition of group existence in terms of cultural minorities. Some proponents of equality of status have even argued for recognition of cultural survival. C. Taylor, ‘The Politics of Recognition’, in: A Gutmann (ed.), Multiculturalism, Princeton: Princeton University Press 1992/1994, p. 25–74. The debate about cultural survival centred on the issue of moral worth and moral standing of minority groups; a discussion that divided democratic philosophers into liberals and communitarians. For a good overview, see S. Mulhall and A. Swift, Liberals and Communitarians, 2nd edition, Oxford: Blackwell Publishers 1996. States have been reluctant to adopt recognition policies for cultural minorities, except in those instances, mostly in Europe, where historic circumstances are seen as the cause for minority status.

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Equality of status has received criticism from many sides, most notably from egalitarians, who argue against any moral recognition other than that of the human being.91 Multiculturalists have problems, on the other hand, with most of the egalitarian conceptions of equality as creating uniformity. The general tenet of their argument is that cultural difference is a value that most conceptions of equality tend to overlook.92 Rather, standard conceptions of equality tend to mean assimilation to a pre-existing and problematic male, white, middle class norm. Multiculturalists have, however, been successful in defending the equality of status to the extent that many governments have begun to implement multicultural policies on this basis. Unfortunately, some of these countries have experienced serious problems with implementation of multiculturalism policies, especially after the events in New York on 11 September 2001.93 As a result, multiculturalism-as-ideology has been discredited due to multiculturalism-as-social-and-democratic-policy not functioning. This has recently ignited two major theoretical debates among theorists trying to explain this problem. One is the debate among social theorists as to whether identity politics and economic redistribution should go hand in hand. The other is the debate among feminists as to how multiculturalism may avoid compromising the protection of women and girls within cultural minorities. Preventing compounded discrimination due to intersectional minoritywithin-minority status is addressed differently in these two debates. While one has focused on reconciling equality of status with economic disparity, the other has centred on reconciling equality of status with individual freedom. Both address multiple disadvantage of minorities within minorities. Both address compounded discrimination. But where one concentrated on external discrimination and policy making with regard to structural disadvantage, the other has scrutinised internal discrimination and found revealing facts about cultural discrimination. In the next two sections these two debates are described in more detail. 5.1. Hierarchy of Discrimination? The relation between equality of status and economic disparity has been described in the first debate as a question of reconciling the politics of 91

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For a prime defence, see B. Barry, Culture and Equality. An Egalitarian Critique of Multiculturalism, Cambridge: Polity Press 2001. Classic texts defending multiculturalism are W. Kymlicka, Multicultural Citizenship. A Liberal Theory of Minority Rights, Oxford: Oxford University Press 1995 and D. Miller, On Nationality, Oxford: Oxford University Press 1995. For a good overview, see J. Rehman, Islamophobia after 9/11: International Terrorism, Sharia and Muslim Minorities in Europe – The Case of the United Kingdom’, in: 3 European Yearbook of Minority Issues 2003/4, p. 217–236.

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recognition and redistribution.94 Recognition is generally seen as democratic claims to identity-related rights and freedoms that protect and promote group belonging, whereas redistribution is seen as democratic claims to a more just distribution of resources and wealth. There are differences among the debatteurs as to both the definition of recognition95 and the list of membership of groups that seek recognition. Racial minorities, women and gays/lesbians as well as the cultural minorities examined in this article are usually seen as demanding recognition. Groups that need to benefit from redistribution include the poor, countries in the South and workers. But more importantly, the two concepts focus on different types of inequality and injustices. The recognition argument focuses on cultural discrimination and injustices rooted in social patterns of representation, interpretation and communication, such as majority cultural domination, non-recognition, and disrespect. The redistribution argument focuses on socio-economic discrimination and injustices rooted in economic structures of society, such as exploitation, economic marginalisation and deprivation.96 Not surprisingly, there is no final agreement in this debate. Essentially, the debate is stranded on the difference in views as to whether cultural discrimination or socio-economic discrimination is the primary reason for the compounded injustices in terms of multiple

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N. Fraser, ‘Social Justice in the Age of Identity Politics: Redistribution, Recognition, and Participation’, in: N. Fraser and A. Honneth, Redistribution or Recognition? A PoliticalPhilosophical Exchange, tr. J. Golb, J. Ingram, and C. Wilke, London: Verso, 2003, p. 7–109. Axel Honneth sees recognition not only in identity-related terms demanding cultural recognition but also as a notion of inter-subjectivity. The health of the inter-subjective relationships is essential to our flourishing and self-realization as human beings. The way in which these relationships become healthy is through recognition of their relevance. Love in terms of parent-child, adult and friendship relationships facilitate the development and maintenance of self-confidence which provides bodily and mental integrity. Rights in terms of the legal recognition of status, universal dignity, the liberty to act and participate, and the possibility of holding responsibility facilitate self-respect and provide a sense of moral worth. Legal recognition thus provides the equal basis for the equal moral worth of the beneficiaries. Finally, solidarity in terms of a shared concern, interest or value and the opportunity to contribute to these facilitate self-esteem and provide a sense of social worth. Significant here is that it is not only solidarity within the constitutive community that is important but also solidarity across cultural borders. Hence, for an individual to enjoy self-esteem she must be allowed full selfrealisation by not being denied the opportunity to contribute to the common good of all groups. Denial of this recognition often leads to social denigration, which in turn fuels social movements and struggles for recognition. See A. Honneth, Struggle for Recognition. The Moral Grammar of Social Conflicts, Cambridge, MA: MIT Press 1996. See also the discussion in T.H. Malloy, National Minority Rights in Europe, Chapter 5. N. Fraser ‘Social Justice in the Age of Identity Politics’, in: N. Fraser and A. Honneth, Redistribution or Recognition?, p. 12–13.

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disadvantages. The question is therefore whether redistribution alone will eliminate injustices, or whether it needs to be implemented parallel with policies of recognition, i.e. a dualism of economism and culturalism. 5.2. A Doubled-Edged Sword for Whom? In contradistinction to the first debate, the second debate focused on overcoming internal discrimination within the cultural minority. This debate has come in two waves. The first wave was initially a response to undemocratic language laws in autonomous regions, such as rules about public signs in English in Quebec.97 The second wave responded to the many criticisms of multiculturalism policies that were seen as mis-guided or not functioning.98 This wave of arguments focused on the issues addressed in this part of our discussion, especially with regard to women and girls. In the public sphere the latter was evidenced in the tensions that arose as a result of immigrant communities not integrating as well as expected. Public incidents such as the killing of Stephen Lawrence in London in 1993 and murder of Theo van Gogh in the Netherlands in 2004 became catalysts. Moreover, in the private sphere, law cases began to appear that exposed maltreatment of individual members of cultural minorities, usually women and girls. Female genital mutilation, forced marriage, marriage by capture and consummation, wife beating and honour killing, Sati99 and other practices ostensibly sanctioned by cultural minority traditions became common knowledge and objects of debate.100

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See Human Rights Committee Opinion on Ballantyne, Davidsen and McIntyre v. Canada and the various Belgian Linguistics Cases. Since it is questionable whether these cases have import for our discussion of triple structural and cultural disadvantage, this issue is not taken further here. These cases deal with members of majority groups who live in minority governed areas and thus claimed discrimination of their language rights when they are not allowed to use their native (majority) language in public. Although such language laws lead to discrimination, it is questionable whether they cause structural and triple disadvantages except in those cases where majority members living within minorities can not find employment or become shopkeepers. For a good review see, A. Patten, ‘The Rights of Internal Linguistic Minorities’, in: A. Eisenberg and J. Spinner-Halev (eds.), Minorities within Minorities, Cambridge: Cambridge University Press 2005, p. 135–156. This has also been called the new debate on minority rights. See W. Kymlicka, ‘The New Debate on Minority Rights’, in: A. S. Laden and D. Owen (eds.), Multiculturalism and Political Theory, Cambridge: Cambridge University Press 2007, p. 25–59. The Hindu tradition of widows throwing themselves on the funeral pyres of their deceased husbands was banned in 1987. A human rights violence that has been object of very little debate is the forced feeding of girls in Mauritania. Force-feeding has been a practice in some African countries where fatness was considered a marriage asset in women. Basically, culturally, voluptuous figures were perceived as indicators of wealth. In this tradition, girls are forced by their mothers or

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Most of these violent practices can be put down to cultural discrimination causing multiple disadvantage. Moreover, less violent treatments sanctioned as cultural customs, such as depriving girls of education and objecting to public civic education on religious grounds, polygony and exploiting wives to work unpaid in family businesses, confining handicapped to a life inside the home and rejecting medical treatment on the grounds of religious beliefs clearly result in structural disadvantage in varying degree. The soul-searching that ensued among multiculturalists and especially feminists101 as to how equality of status of cultural minorities and protection of individual female members could be reconciled brought to the surface two surprising revelations. Firstly, the question as to whether multiculturalism policies put women at risk of discrimination has revealed that what was perceived as an act of internal discrimination due to cultural minority customs and traditions also resulted in external discrimination when adjudicated in a public court. Due to an impoverished understanding of culture and subsequent poor court proceedings, criminal cases involving violence against female members of cultural minorities have been decided in favour of the perpetrators and their minority culture. Feminists thus attack the way we understand the concept of culture. Essentially, the argument of feminists about impoverished understanding of culture is that culture, whether that of the majority or the minority, has been represented as a falsely homogenising reification. Moreover, the idea that people from other cultures are more exotic and distinct than they really are is a false notion. On this view, culture has become ‘a straitjacket’ rather than a liberator to many members of cultural minorities denying them an opportunity for self-definition.102 Cases deliberated on the basis of a

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grandmothers to overeat, often accompanied by physical punishment if they do not comply. The intended result is a rapid onset of obesity, and the practice may start at a young age and continue for years. In Mauritania, after the military coup of 2008, force-feeding appears to be on the rise and sanctioned by the regime. It is thus becoming a major health risk in the female population. See Alex Duval Smith, ‘Girls being force-fed for marriage as junta revives fattening farms’, in: The Observer, 1 March 2009 available online at http://www.guardian.co .uk/world/2009/mar/01/mauritania-force-feeding-marriage (accessed 4 May 2009). I am thankful to Roberta Medda-Windischer for making me aware of this abhorrent practice and to Elisa Fornale for providing me with further information. See S. Moller Okin, ‘Feminism and Multiculturalism: Some Tensions’, in: 108 Ethics 1998, p. 661–684 and S. Moller Okin, Is Multiculturalism Bad for Women?, Princeton: Princeton University Press 1999. A. Phillips, Multiculturalism without Culture, p. 14. It should be noted that feminists are divided on some of these issues. Some non-Western feminists have argued for a ‘differenceperspective’ of feminism holding that traditional feminism was ethnocentric. For an examination of this issue, see H. D. Kalev, ‘Cultural Rights and Human Rights: The Case of Female Genital Mutilation’, in: 51 Sex Roles, Nos. 5/6, 2004, p. 339–348.

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homogenising view of culture have been adjudicated in US and German courts. In People v. Moua,103 a young Hmong104 man, who had lived in the United States for six years, abducted a young Hmong woman and forced her to have sex with him. The women called the police and accused the defendant of kidnapping and rape. In his defence, the young Hmong man claimed that he was performing the traditional Hmong practice of matrimony, ‘marriage by capture,’ in which a woman who is willing to get married should resist in order to establish her virtue. He claimed he had not understood the young women’s resistance as expressing non-consent. The court dismissed the rape and kidnapping charges, but charged the man with false imprisonment and sentenced him to 120 days in jail and a fine.105 In People v. Chen,106 a Chinese immigrant who had resided in New York for one year discovered that his wife was having an affair. A few weeks after he discovered it, he beat and killed her. An expert testimony for the defence explained to the court that in Chinese culture violent retaliation is an acceptable response to a wife’s adultery. The husband was convicted of second-degree manslaughter and sentenced to five years’ probation with no jail time. This was a much-reduced punishment than that usually associated with second-degree manslaughter.107 It has later been established that the expert testimony and evidence presented with regard to the cultural customs of the cultural minorities in question were wanting in

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Record of Court Proceedings, No. 315972-0, Fresno County Superior Court, 7 February 1985. The Hmong minority is one of the groups of the ‘boat people’ who fled Vietnam to the United States. Hmong currently live in several countries in Southeast Asia, including northern Vietnam, Laos, Thailand, and Myanmar. In Laos, a significant number of Hmong people fought against the communist-nationalist Pathet Lao during the Secret War. When the Pathet Lao took over the government in 1975, Hmong people were singled out for retribution, resulting in many fleeing to Thailand. Thousands of these refugees were resettled in Western countries, including the United States, Australia, France, French Guiana, and Canada. Others were returned to Laos under United Nations-sponsored repatriation programs. Beginning in December 1975, the first Hmong refugees arrived in the U.S., only 3,466 were granted asylum at this time under the Refugee Assistance Act of 1975. In May of 1976, another 11,000 were allowed to enter the United States, and by 1978 some 30,000 Hmong people had immigrated. This first wave was made up predominantly of men directly associated with General Vang Pao’s secret army. It was not until the passage of the Refugee Act of 1980 that families were able to come in the U.S., becoming the second-wave of Hmong immigrants. Today, approximately 270,000 Hmong people reside in the United States, the majority of whom live in California. Described in S. Song, Justice, Gender, and the Politics of Multiculturalism, Cambridge: Cambridge University Press 2007, p. 87. Record of Court Proceedings, No. 87-7774, New York Superior Court, 2 December 1988. S. Song, Justice, Gender, and the Politics of Multiculturalism, p. 87.

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perspective and empirical data in both cases. Researchers have shown that neither of the two cultures does in fact apply the customs across the board.108 The willingness of the adjudicating judges to accept the so-called ‘cultural defence’ and their lack of questioning the homogenised and essentialized notion of culture presented by experts thus contributed to a member of the majority, i.e. the judges, reinforcing the cultural oppression of female members of these minorities.109 In Europe the phenomenon of honour killings has produced cultural defence cases, especially in Germany. Approximately sixty homicides in which young women are killed by male members of their family for allegedly tainting the honour of the clan are known to have occurred over the last twenty years in Germany. Often the defendants, mostly Turkish, Kurdish, and Afghani Muslims, have offered a cultural defence, claiming that killing the woman who has dishonoured the family was an obligation imposed by morality, culture and tradition. German judges have accepted this cultural defence in numerous cases and imposed only reduced sentences, most often for manslaughter instead of premeditated murder.110 Similarly, in People v. Pusceddo, a German judge accepted a cultural defence in the case of a Sardinian immigrant who had imprisoned his ex-girlfriend for three weeks alleging that she had committed adultery. While holding her in confinement, he had violated her both sexually and physically, including subjecting her to gang rape. The judge presiding over the case gave the Sardinian immigrant a lenient sentence of six years in prison arguing that his ethnic and cultural background should be taken into consideration, especially the social frame of the roles of man and wife in his home country.111 Notwithstanding that Sardinians hardly subject their wives to such treatment,112 and precisely therefore, the case was clearly an example of misjudgement. 108

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S. Song, Justice, Gender, and the Politics of Multiculturalism, p. 90–93. The case is complicated by the fact that precedent cases concerning rape cited in the case do not refer explicit to culture thus leading Song to argue that the culture defence which the judge accepted is in fact exacerbated by the cultural superiority of the judge (and American law) accepting the assumption that when a woman says no to sexual offences, she does not really mean no. See also, A. Dunes Renteln, The Cultural Defense, New York: Oxford University Press 2004. S. Maier, ‘Culture, Islam and the Law: Honor Killings in Germany.’ Paper presented at the annual meeting of the International Studies Association 48th Annual Convention, Chicago, USA, 28 February, 2007. See People v. Pusceddo in Record of Buckeburg Court Preceedings No. Kis 205 Js 4268/05 of 14.03.2006. I am grateful to Roberta Medda-Windischer for making me aware of this case. See the reaction of Sardinian judges in ‘Germania, violent la sua ex sconti di pena perche “e sardo’ ”, in: La Repubblica, 11 October 2007 available online at http://www.repubblica .it/2007/10/sezioni/cronaca/sardo-violenza/sardo-violenza/sardo-violenza.html (accessed 4.5.2009).

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Secondly, non-violent examples of cultural discrimination based on impoverished views of culture have actually resulted in the line between internal and external discrimination becoming blurred. The classic example is of course the foulard question that is seen by many as internal discrimination against women but which in the various attempts to legislate against this oppression has resulted in external discrimination because policies have barred Muslim girls from educational establishments.113 In some cases, even clothing regulation following moderate Muslim tradition and carefully negotiated with parents can result in a combination of internal and external discrimination. A case in point is the case brought by Shabina Begum against her high school because it would not allow her to wear a jihab.114 The high school head master who was herself a Muslim had worked out a modest school uniform for girls in co-operation with parents and local imams. It did not however allow full body coverage like a jihab. As the female pupil refused to wear the school uniform, she was told to enrol in one of the more strict Muslim schools in the area. Instead she pressed her rights and lost two years of formal education.115 The question has increasingly become a double-edged sword for Muslim girls and women because women who chose to follow the rules of the majority may become stigmatised as sexually loose, whereas women who continue to follow the rules of their own culture may become disadvantaged in the market place for material justice. Most importantly though, as these examples show, what may be perceived as internal discrimination may well result in external discrimination and material disadvantage. While these cases show that multiculturalism may oppress women and girls, it is questionable whether it is the policies or our understanding of culturalism that is wanting. The real question therefore is who is facing the sharper doubled-edged sword? 5.3. Empowering the Individual through Human Rights? Material disadvantage measured in terms of income, education, employment, health, housing is thus a real issue that continues to have a recognisable cultural group relevance because it intersects with differences of gender, race, ethnicity and national origin.116 And it does so in a structured manner that 113

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A good example of this is the final report drafted by the commission of experts under the guidance of B. Stasi, ‘Laicite et Republique. Rapport de la commission de reflection sur l’application du principe de laicite dans la republic’, in: La Documentation Francaise, Paris, 2004. See R (on the application of Begum) v. Head Teacher and Governors of Denbigh High School 2006 in UKHL 15. Described in A. Phillips, Multiculturalism without Culture, pp. 59–60. A. Phillips, Multiculturalism without Culture, p. 15.

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may go beyond questions of identity or choice. For people who may not even see their cultural affiliation as important, it is not always possible to escape discrimination or disadvantage due to the group belonging. In the area of education, respect for the cultural minority’s quest to preserve its way of life may limit children’s social mobility through a lack of exposure to pluralist and diverse aspects of curriculum and participation in an environment that treats all persons as equal. The young persons’ ability to develop their moral and intellectual faculties as full human beings and future citizens is here vital. With regard to the area of family law, cultural minorities may use marriage and divorce regulation to delineate clearly who is inside and who is outside of the group. In those cases where group accommodation entails collective rights, jurisdictional powers held by the cultural minority may impose disproportional burden upon female members.117 Culture allocates unequal positions in society, and cultural discrimination cannot be eliminated by pretending cultural differences away. However, cultural discrimination is as much about culture stereotyping as it is about clashes of cultural values. Compounded discrimination is therefore also a question of protecting the individual’s right to act and be autonomous. Cultural discrimination compounded with socio-economic discrimination prevents the suffering individual from developing her personal autonomy which could help counter-act stereotyping discrimination. One type of equality that aims to overcome this is ‘equality of capabilities.’ In contrast to most conceptions of equality, Amartya Sen has argued that it is not enough to focus on how people become equal be that through receiving extra resources or opportunities; we should also pay attention to what capabilities individuals have when putting these distributed goods to work.118 This is an actionoriented notion of equality as opposed to most other types that are recipientoriented. According to Sen, in evaluating if a person is equal, it is necessary to assess whether she has the capabilities to use and maintain the conditions that distributive goods would afford her. The capabilities approach thus emphasizes functional capabilities or what Sen calls, ‘substantial freedoms’, such as the ability to live to old age, engage in economic transactions, or participate in political activities. These are construed in terms of the substantive freedoms people have reason to value, instead of utility (happiness, desire-fulfilment or choice) or access to resources (income, commodities, assets). Thus, emphasis

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S. Benhabib, The Claims of Culture. Equality and Diversity in the Global Era, Princeton: Princeton University Press 2002, p. 123–126. A. K. Sen, ‘Utilitarianism and Welfarism’, LXXVI The Journal of Philosophy, 1979, p. 463–489, and Sen, Commodities and Capabilities, Oxford: Oxford University Press 1999.

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is not only on how human beings actually function but also on their having the capability to function in important ways if they so wish. Someone could be deprived of such capabilities in many ways, e.g. by ignorance, government oppression, lack of financial resources, or false consciousness. This approach to human well-being emphasises the importance of freedom of choice, individual heterogeneity and the multi-dimensional nature of equality. The capabilities theory has, however, been deemed rather over ambitious as it is virtually impossible to measure capabilities and hence to assess whether a person is equal. To alleviate this problem, Martha Nussbaum has augmented Sen’s theory with a list of foundational capabilities.119 The list is a set of basic principles, and adequate measure thereof, which she argues would fulfil a life of human dignity. Nussbaum frames these basic principles in terms of ten capabilities, i.e. real opportunities based on personal and social circumstances thus bringing together equality of opportunity with equality of status.120 The similarity here to the human dignity conditions protected by universal human rights is striking. Indeed, the approach that Nussbaum advocates requires a ‘justice as rights’ procedure that many would find is a type of procedure that gives rights a hegemonic position over political deliberation about equality and distribution of goods.121 Formal ‘justice as (human) rights’ means ‘respecting rights and providing remedies for their infringement or violation’ based on differing systems of justice giving varying content to the rights in question and aiming to provide ‘to each his or her rights.’122 This is in contradistinction to material justice view which aims to provide ‘to each his or her due.’123 On this view, the elimination of injustice or inequality in terms of social and distributive or democratic injustice is left to judges rather than democratically elected assemblies.124 Since justice as (human) rights provides for a coherent

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M. Nussbaum, Women and Human Development: The Capabilities Approach, Cambridge: Cambridge University Press 2000, p. 78–80. These ten capabilities include aspects of Life, Bodily Health, Bodily Integrity, Senses, Imagination, and Thought, Emotions, Practical Reason, Affiliation, Other Species, Play, and Control over one’s Environment. See T. Campbell, Justice, Chapter 3 and 11. Campbell following Robert Nozick in T. Campbell, Justice, p. 48. See discussion of social and distributive justice in Section 3. For a duty-based theory of justice see, O. O’Neill, Towards Justice and Virtue. A Constructive Account of Practical Reasoning, Cambridge: Cambridge University Press 1996. In that book O’Neill challenges the rivalry between those who advocate only abstract universal principles of justice and those who commend only the particularities of individual lives. She traces this impasse to defects in underlying conceptions of reasoning about action. She proposes an alternative account of ethical practical reasoning that is act-oriented rather than endoriented in that it sees individuals as capable of making critical judgments about practical outcomes, between good action and bad action. O’Neill specifically argues that the aim

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connection between justice, remedies and punishments and gets reinforced by the calling for the establishment of laws whose reinforcement is overseen by courts of law rather than bureaucratic and cumbersome political processes, it therefore lends itself to several objections. Firstly, ensuring justice through the court system can give redress to individuals but often fails to eliminate group discrimination, especially in the economic field. The same goes for injustices in the education and employment fields. Secondly, rights can have the negative effect of trumping equality, as in the case of female members of minorities seeking democratic justice in a court of law that adjudicates on the basis of a culture defence. Thirdly, if the argument extends specifically to human rights, the problem of legitimacy of human rights pops up. Many countries have incorporated human rights into their constitutions and allow their courts to adjudicate accordingly, but there is no global consensus on social and economic human rights. Moreover, with regard to those human rights that yield consensus there are few enforcement schemes that include courts. Notwithstanding this, there is an argument for retorting to human rights as a ‘manifesto’ of moral behaviour. Human rights rhetoric may thus be seen as a tool in combating all types of discrimination and seeking all-encompassing justice. But then it is no longer a rights scheme but a political deliberation tool.

6. Some Solutions If we are to give universal legal standards the political impetus to overcome the problems of compound discrimination causing multiple disadvantage due to identity-related minority-within-minority status, we need constructive intersectional remedies. Strategies of affirmation and transformation have been proposed as remedy because compounded injustices in multicultural states can seldom be put down to one or the other type of discrimination. Affirmative strategies aim to correct inequitable outcomes of social arrangements without disturbing the underlying social structures that generate them. Transformative strategies aim to correct unjust outcomes by restructuring the underlying generative framework.125 That means affirmative measures must address cultural discrimination whereas transformative policies must address socio-economic discrimination. However, the first is problematic

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of ethical practical reasoning is to offer other people ethical standing. Furthermore, in arguing that practical reasoning is not about values but about action, Onora O’Neill holds that ethical standing is for all, not only the needy. N. Fraser ‘Social Justice in the Age of Identity Politics’, in: N. Fraser and A. Honneth, Redistribution or Recognition?, p. 74.

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not only for the reason of incurring reverse discrimination but more importantly for valorising group identity to the extent that it prevents self-criticism and dissidence while promoting conformity and internal group repression. Consequently, it may provoke cultural backlash of mis-recognition, the result being a strengthening of the vicious circle in which many multiply disadvantaged minority members live. Transformative strategies do not appear to suffer these deficiencies. By replacing master dichotomies, such as rich/poor, black/white, woman/man and by casting distributive rights in universal terms, they create room for differences, discourage conformism and avoid stigmatised class distinctions. Consequently, they foster solidarity rather than cultural backlash. The argument is thus that since transformative strategies do not incur cultural backlash, transformation should have priority in a hierarchy of strategies since it avoids the trap of cultural backlash. Counter arguments to this would hold that recognition should have priority because it would empower cultural minorities to participate in the democratic debate about remedies and thus become co-authors of the laws by which they would be required to live.126 The issue then is not only the politics of recognition but also a ‘struggle for recognition.’127 The core thesis is that moral forces within social reality are responsible for democratic development and progress through the struggle of recognition. Instead of ranking affirmative and transformative strategies in a hierarchy that develops each of them independently, they need therefore to be developed as an integrated scheme. Integrating affirmative strategies aimed at recognition of identity status with transformative strategies aimed a redistribution of economic goods, Nancy 126

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See most notably, J. Tully, Strange Multiplicity. Constitutionalism in an age of diversity, Cambridge: Cambridge University Press 1995. The struggle for recognition refers to the ideal of social interaction as a conception of ethical life where three inter-subjective relationships are recognized and provide the normative approaches to human interaction. In societies where the need for self-confidence, selfrespect and self-esteem is not recognized and institutionalised, social conflicts arise and articulate demands for the recognition of these. The way this works is in a sense a dialectical process: An individual knows that she is recognised by others in some of her abilities or attributes and this constitutes a first form of community. This community enables the individual to get to know some other aspects of her own particularity, since she has developed more aspects of her own identity. However, these aspects are still ignored by the others, and the individual must launch into a new struggle to have these new aspects recognized, and so on. Hence, the struggles for recognition lodged by social movements are based on collective experiences of denigration and exclusion due to mis-recognition and not as often assumed on resistance due to idiosyncratic misfortunes. Engaging in political action has the direct function of tearing disrespected individuals out of the crippling situation of passively endured humiliation and helping them on their way to forging a positive self-esteem. See Axel Honneth’s reply, ‘Redistribution as Recognition: A Response to Fraser’, in: N. Fraser and A. Honneth, Redistribution or Recognition?, p. 110–197.

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Fraser has called cross-redressing.128 Basically, cross-redressing means using measures aimed at eliminating one dimension of inequality to remedy inequality in another area, i.e. exploiting lack of status and economic disadvantage to mitigate both forms of subordination simultaneously. The classic example is helping women out of oppressing marriages by providing them with paid employment or micro-credits. Another example is the economic disadvantages suffered by gays/lesbians due to family labour law being based on heterosexual paradigms. Legalising gay marriages and domestic partnerships could help gays/lesbians out of economic disadvantage by letting them enjoy the same rights as heterosexuals. A key aim of cross-redressing is therefore to break down boundaries between social and cultural groups rather than to erect them. Boundary awareness helps de-essentializing homogenising views of culture and promoting cross-cultural approaches and acceptance of difference is clearly an intersectional approach to eliminating cultural discrimination. Anne Phillips has characterised her proposal as ‘the Judge and the Democrat.’129 Most multiculturalists advocate basic individual rights and universal legal standards as a minimum, she argues, and where necessary affirmative measures in conjunction with mechanisms of democratic deliberation. Democratic deliberation is considered necessary both within cultural minorities as well as between cultural minorities and the majority. Mechanisms of deliberation internally in cultural minorities are for instance mediation services helping members reconcile traditional minority laws with laws of mainstream society, i.e. Muslim Sharia laws with secular public law.130 This could help overcome some of the problems that women and girls face in religious minorities. Mechanisms of mediation between cultural minorities and the majority could be parliamentary and government commissions involving members of both minorities and majorities debating topical issues before drawing up legislation.131 The argument for democratic deliberation here is that most cultural 128

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N. Fraser ‘Social Justice in the Age of Identity Politics’, in: N. Fraser and A. Honneth, Redistribution or Recognition?, p. 83–85. A. Phillips, ‘Dilemmas of gender and culture’, Phillips takes a strong stand for the activists in this article. Activists like to throw up ‘hard cases’ about ethical issues that assign political responsibility rather than deliberate about justice and normative agreement. A. Phillips, Multiculturalism without Culture, p. 172. For a discussion of the Canadian Society of Muslims seeking to establish private tribunals offering family arbitration according to Islam principles, see A. Shachar, ‘Feminism and multiculturalism: mapping the terrain’, in: A.S. Laden and D. Owen (eds.), Multiculturalism and Political Theory, p. 115–148. See also A. Waris, ‘Making a Mountain out of a Molehill: The Protection of the right to the Freedom of Religion of the Muslim Religious Minority in Kenya’s Constitution’, in: 14/1 International Journal on Minority and Group Rights 2007, p. 25–57.

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values conflicts are essentially political and contextual rather than conflicts about comprehensive beliefs. Moreover, inter-cultural dialogue is a peaceful and rational means of seeking understanding and possible resolve.132 The combination of a rights-based approach and a deliberative approach is thus vital. This is because the political dilemmas reviewed by either approach will yield divergent solutions. Dilemmas adjudicated in a court run the risk of falling into the trap of value conflicts and an either/or decision between relativism and universalism. Dilemmas debated in a democratic deliberation will face the identity-difference conflict but through democratic deliberation the cultural complexities of the political issue may find resolve that leaves all parties satisfied. It allows thus for more nuanced and contextual views to come to the fore. Moreover, the deliberative process enables and empowers cultural minorities to participate in the democratic market place thus providing for an opportunity to bring into contact the politics of recognition and redistribution. Participation of cultural minorities in the deliberation opens the way for obtaining recognition through a struggle for recognition while at the same time being able to influence the redistribution of wealth. Ayelet Shachar has proposed to overcome the paradox of multicultural vulnerability through a division of jurisdictional authority. The paradox, to recall, was identified by Shachar as the disproportionate allocation of accommodation costs within the group thus producing intra-group power asymmetries, which differentiate membership for individual group members.133 An approach that divides jurisdictional authority requires the combination of the judiciary and the political deliberation between involved parties. The jurisdictional authorities that Shachar wishes to involve include entities from the local to the international level. Hence, the parties would be local churches, local political entities, cultural minority groups, federal governments, national governments, and international organisations.134 Shachar thus wants to take the issue out of the philosophical realm and institutionalise it within a diffused power-relation between these institutions. In a sense, she wants to redraw jurisdictional boundaries to include more institutions and allow for more entry points to the legal system. In short, a matrix of

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A. Phillips, ‘Dilemmas of gender and culture’, p. 117. A. Shachar, ‘The Puzzle of Interlocking Power Hierarchies: Sharing the Pieces of Jurisdictional Authority’, in: 35/2 Harvard Civil Rights-Civil Liberties Law Review 2005, p. 387–426 at p. 386. A. Shachar, ‘The Puzzle of Interlocking Power Hierarchies: Sharing the Pieces of Jurisdictional Authority’, in: 35/2 Harvard Civil Rights-Civil Liberties Law Review 2005, p. 387–426 at p. 406.

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institutions that may defy entrenched power hierarchies. If power is not fully in the hands of any one of the entities involved, a dynamic system of checks and balances is feasible. The operations of such a system should be seen as an ongoing dialogue accepting that there will always be contestations. If there is room for renegotiation of the limits of authority, the system remains flexible. This is in contradistinction to a strict state-versus-cultural minority approach that awards priority to state law in order to avoid hard choices. It is also in contrast to a fragmentation approach which is too liberal allowing for cultural minority accommodation based on illiberal traditions. Either way, the jurisdictional authority obtains a hegemonic position in its relation to individual members of society and the cultural minority. However, the divided jurisdictional authority system requires a certain trust between the parties involved. This Shachar acknowledges is a major problem, as cultural groups that have historically been subordinated and oppressed seldom trust the state as a partner. For women who have suffered systematic oppression this may clearly be a contentious issue, such as addressed by Åkermark above. The same may be said of indigenous peoples who have been suppressed by colonial powers. This is why many indigenous peoples will prefer the supremacy of human rights over national legislation. The diffusion of power between different layers of jurisdiction would thus seem advantages. On the issues of education and family law, Shachar suggests an additional temporary division of jurisdictional authority in such a way that different types of justice may be claimed at different stages in one’s life. Hence, certain life events are important to the collective identity of the cultural minority, e.g. the creation of family and the early education of children. These areas may have to be governed solely by the traditions of the cultural minority. Family law pertaining to the withdrawal from family life must, however, be adjudicated jointly as it does in many countries in order that single members are not penalised by either an hierarchical orthodox tradition that imprisons members against their will in the cultural minority or releases the member without due attention from the state’s civil law system. By ‘synchronising’ state civil law and minority traditions with regard to divorce, Shachar believes unfair discrimination against vulnerable members can be avoided. For other social areas of concern, a system of ‘joint governance’ would allow for a contextual, multidimensional approach to eliminating identity-related disadvantage. Because members of cultural minorities are multi-dimensional in terms of identity, Shachar believes that there is a need to see justice as multi-dimensional. Context-specific adjudication of sub-matters, such as property issues and allowances would thus be necessary in order to find practical solutions and approaches that fit each case of cultural traditions meeting other traditions. Ad hoc courts or conflict arbitration boards would be the mechanisms.

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The advantage of joint governance over temporal division of jurisdiction would be that it offers the cultural minority an opportunity to revisit its traditions and find lasting solutions to problems that may occur again and again. Shachar justifies this interference in the internal affairs of the minority culture by arguing that it is utopian to think of cultural minorities not having some relationship with its surroundings, such as the state, the local authorities and indeed the international arena.

7. Some Conclusions If it follows that no matter what type of culture and identity we carry, our lives are complexly related to several layers of authority, we may also conclude that compounded discrimination is complex because the human condition is intersectional. Multiple disadvantage may be caused both by discrimination and by circumstances. Discrimination may be overt or covert, it may be internal or external or both. Circumstances may be permanent or temporary. Multiple disadvantage may be caused by social, economic and cultural discrimination. Diverse types of discrimination implicate diverse systems of justice. Each system of justice requires different notions of equality. Equality is complex because people are multi-dimensional. Equality without individual autonomy is equality incomplete. Multiple disadvantage may be caused by circumstances that are entrenched in society and difficult to reform, or they may be passing from one state of affairs to the next. Diverse sets of circumstances implicate diverse action. Each action must be tailored to the resolve of the specific circumstances. Action without flexibility is futile action. Actions must be integrated, joint and allow for divided authority. Several suggestions for action have been put forth in this article. Crossredressing to integrate affirmative and transformative action, as suggested by Fraser, without giving priority to either culturalism or economism has good validity because it would bring together formal and material justice. But it has drawbacks especially if seen as a remedy at the international level. Taking a welfare approach to the international level is clearly not easy.135 Firstly, there is no consensus on this at the international level, and secondly, bringing universal legal standards and the global initiative on good governance together has shown the weaknesses of both. There is nevertheless room for exploration in so far that the space for improved co-operation is still wide open. However, the problem with cross-redressing is that the affirmative action

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T. Pogge explores this in World Poverty and Human Rights, Cambridge: Polity Press 2002.

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approach relies on an essentialized view of culture. Joint governance by creating a normative space that includes local and domestic as well as national and international standards, norms and mechanisms, as suggested by Shachar, would aim at similar goals as cross-redressing albeit with a less affirmative force and more sensitive to culture. It would combine formal and material justice while acknowledging the need to allow for a division of jurisdictional authority. It would de-couple material sub-matters from matters of comprehensive culture. In a sense it would allow for a hierarchy of rights when necessary. But more importantly, it would diffuse the power-structure into layers of power. A hierarchy of rights was suggested by Phillips, to allow for gender rights to override cultural group rights. This also aims to de-essentialize culture while promoting cultural sensitivity. Deconstructing the concept of culture is therefore essentially the problem of the paradox of multicultural vulnerability in terms of multiple disadvantage. Culture is intersectional and complex. Firstly, to de-essentialize culture means to understand that individuals are multi-dimensional, and thus identity groups are diverse within as well as without. The word ‘or’ is a signifier of the essentializing effect in universal legal standards. Thus, derogations are prohibited in international law if they involve discrimination based on race, colour, gender, language, religion or social origin. Clearly, social origin is closely connected to any of the other categories, and should be related by the word ‘and’. Similarly, religion and gender combined have been the cause of much discrimination whether overt or covert, internal or external. Changing this in universal legal standard-setting would mean taking intersectionality seriously. Secondly, culture should be dis-aggregated. In universal legal standards culture usually refers to race or ethnicity as well as national, linguistic or religious belonging with indigenous affiliation hanging in the margin. Grouping too many categories under culture is perhaps a bad strategy.136 This is why intersectionality is helpful to explain complex culture. Universal legal standard-setting has devised identical standards for groups with diverse labels. However, linguistic minorities clearly have different needs than religious groups, and discrimination against racial groups and indigenous peoples has had far different ramifications than discrimination on the basis of language. This generic approach may come back to haunt universal legal standards in an age when minorities within minorities are suffering compounded discrimination due to structural as well as cultural features. Will Kymlicka has suggested that universal legal standard-setting could give priority to targeted

136

Both Anne Phillips, Multiculturalism without Culture and Will Kymlicka, Multicultural Odysseys have argued along these lines.

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instruments with specific rights for specific groups.137 The question therefore would be, should universal legal standard-setting adopt a targeted instrument to protect minorities within minorities and what would it look like? I will leave the first part of that question to the activists. The key question here is, can there be a targeted instrument for minorities within minorities enshrining specific anti-discrimination rights against compounded discrimination? Is it feasible to think of an international instrument that outlaws compounded discrimination tout court? Theorizing about legal remedies for eliminating compounded discrimination causing multiple disadvantage and due to identity-related minoritywithin-minority status in cultural minorities is clearly in its infancy. This discussion has suggested complex combination systems of diverse remedies knitting formal and material justice together in intricate webs of rights and deliberations. For universal legal standards this is not very helpful. A comprehensive and all-encompassing standard-setting instrument would be almost impossible to fathom. However, there may be one way of combining antidiscrimination with intersectionality. A mainstreaming of prohibition of compounded discrimination on the basis of intersectionality would guarantee that the synergy is institutionalised within each approach. Technically, this could be done in a qualifying clause so for instance Article 12(3) of the FCNM would read: The Parties undertake to promote equal opportunities for access to education at all levels for persons belonging to national minorities, and to ensure that no individual member of a national minority is excluded from this equal opportunity due to gender, age, disability or sexual orientation. Finally, perhaps the time is due when universal legal standard-setting should take on the concept of culture. As the discussion of culture defence in this article has shown state practice has at times produced undesirable results due to the lack of understanding of culture among adjudicating judges. Much has been written and said about culture, especially in the realm of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) where cultural relativism has been outlawed in the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005). But no General Comment or Recommendation has addressed the need to de-essentialize culture. Hence, more needs to be done to avoid that universal legal standards become the carrier of an essentialized, boundary drawing, and homogenised notion of culture. 137

See W. Kymlicka, Multicultural Odysseys, Conclusion.

Annexes Selected Documents From International Organisations Pertaining To Minority Protection European Union *EU Network of Independent Experts on Fundamental Rights, Thematic Comment no 3: The Protection of Minorities in the European Union, April 2005 Introduction The present Thematic Comment examines the protection of minorities in the EU Member States. On the basis of that examination, it identifies the initiatives the institutions of the Union might take, in exercising the competences conferred on them by the Member States, in order to improve that protection, where this appears necessary to ensure that the mutual trust on which the area of freedom, security and justice is premised is maintained. In proceeding to examine this question, the EU Network of Independent Experts on Fundamental Rights was motivated primarily by two considerations. First, when there is a clear risk of a serious breach by a Member State of the values on which the Union is based, certain recommendations may be addressed to the Member State concerned1. The communication from the Commission to the Council and the European Parliament on Article 7 of the Treaty on European Union, states that in order to evaluate the ‘seriousness’ of a breach of one of the principles of Article 6(1) EU “the analysis could be influenced by the fact that [the victims of such violations] are vulnerable, as in the case of national, ethnic or religious minorities (…).”2 Indeed, the European

1 2

Article 7(1) EU; Article I–59 of the IGC Draft Treaty establishing a Constitution for Europe. Communication from the Commission to the Council and the European Parliament on Article 7 of the Treaty on European Union, 15 October 2003, Respect for and Promotion of the Values on which the Union is Based, COM (2003) 606final, p. 8.

Kristin Henrard, Double Standards Pertaining to Minority Protection, pp. 297–436. © 2010 Koninklijke Brill NV. Printed in the Netherlands.

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Commission already considers that “the political criteria defined at Copenhagen [for the accession of the countries candidates to the Union] have been essentially enshrined as a constitutional principle” and that Article 6 EU comprises the protection of minorities.3 Article I–2 of the Treaty establishing a Constitution for Europe now submitted for ratification by the Member States has made this explicit, identifying respect for the rights of persons belonging to minorities, forming part of human rights, as one of the values on which the Union is founded.4 The EU Network of Independent Experts on Fundamental Rights may contribute to « detect fundamental rights anomalies or situations where there might be breaches or the risk of breaches of these rights falling within Article 7 of the Union Treaty ».5 Therefore, one objective of this Thematic Comment is to screen the situation of minorities in the Member States in order to detect any situation the seriousness of which could justify the institutions adopting a recommendation directed to the Member State where a clear risk of a serious breach of the rights of minorities is found to exist. Second, in the implementation of Union law, the Member States are bound to respect the Charter of Fundamental Rights, as well as the other fundamental rights which belong to the general principles of Union law. The EU Charter of Fundamental Rights does not provide as such for rights of minorities. However, it prohibits any discrimination based on, inter alia, membership of a national minority (Article 21 (Article II–81 of the Treaty establishing a Constitution for Europe) ); it states that the Union shall respect cultural, religious and linguistic diversity (Article 22 (II–82) ); and it protects the right to respect for private life (Article 7 (II–67) ), freedom of religion (Article 10 (II–70) ), freedom of expression (Article 11 (II–71) ), and freedom of association (Article 12 (II–72) ), all of which may serve to protect certain dimensions of the rights of persons belonging to minorities. The situation of the Member States is examined under these provisions of the Charter, in order to clarify the requirements which they are bound to respect when the act in the field of application of Union law. 3

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See footnote 3 of the Commission’s Regular Reports from October 9, 2002. Available online at http://europa.eu.int/comm/enlargement/report2002/index.htm#report2002 “The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” (consolidated version: CIG 87/04, Brussels, 6 August 2004). Communication from the Commission to the Council and the European Parliament on Article 7 of the Treaty on European Union, 15 October 2003, cited above.

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Having organized a thematic discussion on the issue of minority rights in the Union, the Network has concluded that “minority rights” should be understood, rather than a set of rights recognized to certain groups recognized as “(national) minorities”, as a list of guarantees which are recognized to individuals as members of certain groups, or to these groups themselves, but whose beneficiaries will vary according to the identity of the right which is at stake. Thus for instance, while freedom of religion or the right to privacy – which includes a right to maintain a certain traditional lifestyle – are to be recognized to all persons under the jurisdiction of the State whatever the nationality of the beneficiaries or the links they have with the State, other rights, such as the right to participate in public affairs, may be granted only to those whose connections to the State are stronger or who have the nationality of the State concerned. The Network therefore adopted an approach of “minority rights” which focuses on the rights themselves, rather than on the notion of “minorities”. It has considered illadvised to make the recognition of certain rights dependent on the prior recognition of a “minority”, where this is not required by the nature of the right itself. It considers that this is in conformity with the understanding of the Council of Europe Framework Convention for the Protection of National Minorities, which considers the protection of national minorities to form an integral part of the international protection of human rights. The Network of Independent Experts has consistently interpreted the Charter of Fundamental Rights in accordance with the requirements of international and European human rights law, in conformity with Article 53 of the Charter. In the preparation of this Thematic Comment therefore, and in particular for the understanding of the prohibition of discrimination based on membership of a national minority (Article 21 of the Charter), the Thematic Comment relies on several international instruments which seek to protect the rights of persons belonging to minorities. At the universal level, Article 27 of the International Covenant of Civil and Political Rights (ICCPR) provides: “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.” The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 1992,6 which is not legally binding, specifies the implications of this provision by enumerating the rights which persons belonging

6

UN General Assembly Resolution No. 47/135 of 18 December 1992.

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to minorities enjoy. At the European level, the Concluding Document of the second Meeting on the Human Dimension of the Conference on Security and Co-operation in Europe (the CSCE, later the OSCE) held in Copenhagen in June 1990, lists, in its section IV, the rights of persons belonging to national minorities. This document inspired the drafting of the Council of Europe Framework Convention for the Protection of National Minorities (FCNM), which was opened for signature on 1 February 1995 and entered into force on 1 February 1998. This is the first legally binding multilateral instrument, which is devoted entirely to the protection of minorities. Furthermore, the European Charter for Regional or Minority Languages of the Council of Europe was opened for signature in November 1992 and entered into force on 1 March 1998.7 The meaning and scope of these instruments have been clarified in the course of their monitoring within the different international organisations in the framework of which they were adopted. The UN Human Rights Committee has interpreted the meaning of Article 27 ICCPR when examining the state reports and communications of individuals claiming to be a victim of a violation of one of the rights of the ICCPR. Concerning the FCNM, the Committee of Ministers of the Council of Europe is charged with monitoring the implementation of the convention. It is assisted by the Advisory Committee of the Framework Convention (ACFC). This Committee examines the state reports containing information on legislative and other measures taken to give effect to the principles of the FCNM submitted periodically by the states parties, and it adopts an opinion upon examining these reports. On the basis of this opinion, the Committee of Ministers adopts a resolution with conclusions and recommendations. The monitoring of the European Charter for Regional or Minority Languages is also based on a reporting procedure. A committee of independent experts examines the periodical state reports and prepares a report. This report is forwarded to the Committee of Ministers, which can make recommendations to states with a view to the adoption of the necessary

7

The European Charter for Regional or Minority Languages of the Council of Europe consists of three parts. Article 2 of Part I (General Provisions) provides that each Party will undertake to apply the objectives and principles of Part II to all the regional or minority languages spoken within its territory. Furthermore, it provides that each Party undertakes to apply a minimum of 35 paragraphs or sub-paragraphs chosen from among the provisions of Part II of the Charter. Of these 35 paragraphs, at least three must be chosen from each of the Articles 8 (education) and 12 (cultural activities and facilities) and one from each of Articles 9 (judicial authorities), 10 (administrative authorities and public services), 11 (media) and 13 (economic and social life).

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action to bring their policies, legislation and practice into line with their obligations under the Charter. Finally, in the framework of the OSCE, the Office of the High Commissioner on National Minorities (HCNM) was established in 1992. Conceived as an instrument of conflict prevention, its mission consists of identifying and seeking early resolution of ethnic tensions that might endanger peace, stability or friendly relations between OSCE participating States. Apart from country recommendations, the HCNM periodically formulates recommendations on certain issues of minority protection, in which he attempts to clarify and build upon the content of the relevant international standards.8 …

3. Ensuring an Adequate Protection against Discrimination Every person should be protected from being discriminated against on the ground of his/her membership of a national minority. Equality and the prohibition of discrimination are recognised in Articles 20 and 21 of the Charter of Fundamental Rights. Article 21 (1) of the Charter prohibits discrimination based on membership of a national minority, ethnic origin, language and religion. Article 14 ECHR mentions among the prohibited grounds of discrimination in the enjoyment of the rights and freedoms set forth in the ECHR: association with a national minority, language and religion.41 Directive 2000/43/CE of the Council of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin42 and Directive 2000/78/CE of 27 November 2000 establishing a general framework for equal treatment in employment and occupation43 protect against contain forms of direct or indirect discrimination exercised in particular on the ground of racial or ethnic origin or religion. An examination of the situation of minorities in the Member States illustrates that, despite the important contribution of European Community law to this dimension of the protection of persons belonging to minorities, a number of problems remain, which could

8

See The Hague Recommendations Regarding the Education Rights of National Minorities (1996); The Oslo Recommendations Regarding the Linguistic Rights of National Minorities (1998); The Lund Recommendations on the Effective Participation of National Minorities in Public Life (1999); Warsaw Recommendations to assist national minority participation in the electoral process, elaborating on the Lund Recommendations (2001); Guidelines on the use of Minority Languages in the Broadcast Media (2003). The High Commissioner on National Minorities has also adopted several recommendations regarding the Roma (see http://www .osce.org/hcnm/documents/recommendations/roma/index.php).

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justify the adoption of further initiatives. The question of the Roma will be treated in a separate section of this Thematic Comment. The following comments therefore focus on minorities other than the Roma. 3.1. Forms of discrimination against minorities 3.1.1. Language proficiency requirements The Network would first remark that in certain situations, language proficiency requirements, or the failure to accommodate the needs of linguistic minorities, may constitute a disproportionate, and therefore discriminatory, obstacle to the integration of the members of certain minorities. This concerns especially the access to employment, but it also may affect access to education of to health care. Where a language proficiency requirement is a condition for access to citizenship, the impact on certain minorities may be particularly important, and the way such a condition is imposed and implemented thus deserve to be closely scrutinized.44 As remarked by the ACFC, the imposition of language proficiency requirements may be especially problematic when the legislation is drafted in such a way that it allows an extensive interpretation of the linguistic requirements. … Whether or not language proficiency requirements or the failure to provide for the accommodation of the specific needs of certain linguistic minorities may be considered reasonable, and therefore as non discriminatory, will depend on which opportunities are given to the members of minorities to acquire the linguistic skills which are required. … The use of language requirements in the areas covered by Council Directive 2000/43/CE of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin should be carefully scrutinized, in order to ensure that they are not unreasonable or disproportionate, thus leading to a form of indirect discrimination on the grounds of ethnic origin as prohibited under this Directive. 3.1.2. Access to citizenship and the prohibition on the grounds of ethnic origin In a number of Member States of the Union, the conditions of access to citizenship have been a source of concern, either because of their potentially discriminatory nature, or because, where they are unable of becoming citizens, the members of certain minorities face heightened difficulties of integration. The Roma in particular encounter problems in States when applying for citizenship. … Progress has been made in this field by a number of States recently, however. …

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Although each Member State of the Union may determine who are its own nationals and, thus, is exclusively competent to define the rules according to which nationality may be attributed, it should be emphasized that Council Directives 2000/43/EC and 2000/78/EC apply to all persons, without distinction as to their nationality. Although, according to Recital 13 of the Preamble of Directive 2000/43/EC, the prohibition of all direct or indirect discrimination on grounds of racial or ethnic origin, although it also applies to thirdcountry nationals, does not concern differences in treatment on grounds of nationality, it cannot be ruled out that the very conditions for granting nationality constitute that kind of discrimination, prohibited by the Directive. As a matter of fact, there where they create differences in treatment between certain categories of persons, the conditions for granting nationality do not create a difference in treatment between nationals and non-nationals, but between different categories of foreigners, which makes those differentiations come under Directive 2000/43/EC. Consequently, where access to nationality conditions or facilitates access to employment, education or housing, as well as to the other social goods to which this Directive applies in accordance with its Article 3, it needs to be verified whether the rules governing access to nationality do not institute direct or indirect discrimination against certain persons defined according to their ethnic origin. 3.2. The affirmative dimension of the requirement of equality 3.2.1. Positive obligations implied in the principle of equal treatment Beyond the mere prohibition of discrimination, the realisation of effective equality between persons belonging to an ethnic, cultural, religious or linguistic minority and the rest of the population requires the elimination of obstacles to the access of these persons to all domains of social, economic, cultural and political life. States have a number of positive obligations in this regard. … In order to combat discrimination against minorities, therefore, it is necessary to identify situations where certain generally applicable – and apparently neutral – regulations or policies fail to take into account the specific situation of the members of certain groups defined by their ethnic origin, their religion, or their language. Indeed, this may be seen as implicitly recognized by the Council Directives 2000/43/EC and 2000/78/EC, although Articles 2(2)(b), of the both the ‘Race’ and the Framework Directives define indirect discrimination in a more narrow fashion, as a situation where apparently neutral regulations, criteria or practices appear to be particular disadvantageous to the members of a certain category, if the provision creating the disadvantage is not objectively and reasonably justified. Moreover, insofar as – without imposing on the Member States an obligation to allow for this mode of

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proving discrimination – these instruments allow for the possibility of using statistics before courts or other authorities in order to prove discrimination, they include in their understanding of discrimination situations where apparently neutral regulations, criteria or practices have a disproportionate impact on certain protected groups, and cannot be objectively and reasonably justified. It is clear therefore that Article 13 EC, although it only allows for the adoption of measures which seek to “combat discrimination”, may be relied upon to go beyond the existing instruments adopted on that legal basis not only in order to afford a protection from direct and indirect discrimination on the grounds of religion beyond the current scope of application of Council Directive 2000/78/EC,62 but also in order to adopt a more extensive understanding of the notion of indirect discrimination. The prohibition of indirect discrimination should not be interpreted too narrowly, as imposing only a negative obligation not to adopt of maintain measures imposing a particular disadvantage on the members of certain protected categories, unless such measures are objectively and reasonably justified by the pursuance of a legitimate aim. This prohibition should be seen as also imposing positive obligations to ensure that the application of generally applicable and apparently neutral regulations, criteria or practices do not have a disproportionate impact on certain categories, which in turn requires an adequate monitoring of the situation of the members of these categories in the fields (employment, education, housing for instance) where this prohibition is imposed ; and to take into account the specific situation of the members of certain minorities by carving exceptions into generally applicable regulations, where in the absence of such exceptions they would be negatively affected by the application of such regulations, even in situations where the general rule is fully justified. … In the view of the Network of Independent Experts, because of the specific situation of the Roma minority in the Union, positive action measures should be adopted in order to ensure their integration in the fields of employment, education and housing. This is the only adequate answer which may be given to the situation of structural discrimination – and, in many cases, segregation – which this minority is currently facing. … However, the question whether positive action measures should be adopted is to be distinguished from the question whether the impact of generally applicable regulations or policies on certain minorities, especially ethnic and religious minorities, should be monitored by statistical means, as well as from the question whether the specific situation of the members of certain minorities should be taken into account by carving exceptions into generally applicable regulations where in the absence of such exceptions, these minorities could be put at a

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disadvantage by the application of such regulations. The latter requirements should be treated as a consequence of the prohibition of indirect discrimination, and there is no reason to limit their application to certain groups, such as the Roma, who are facing a situation of structural discrimination. 3.2.2. Special measures and positive action measures It is useful here to clarify the distinction between the adoption of special measures which promote substantive equality, on the one hand, and positive action measures stricto sensu, on the other hand, although the use of these terms is not fixed and may vary according to the instruments in which they appear. Special measures may be adopted as affirmative measures which seek to promote full and effective equality between persons belonging to a minority and persons belonging to the majority. But such measures do not necessarily entail the use of preferential measures in favour of the members of a minority group which create a risk of discrimination. In the field of education for example, … special classes are organized for children of immigrants in order to facilitate their integration in the educational system, in particular by assisting them in the acquisition of the official language. … The training of officials in order to facilitate intercultural communication and to improve their understanding of the situation of minorities falls under this category of measures. Such schemes are only to be encouraged only insofar as they seek to provide the members of minorities with an opportunity to seek integration in the mainstream of society. Indeed, such schemes may in certain instances be required as a form of accommodation of the specific situation of minorities. This is the case where, in the absence of such accommodation, minority groups would be suffering a form of indirect discrimination, being placed de facto in a disadvantageous situation because of the imposition of generally applicable regulations, criteria or practices, which although apparently neutral, are discriminatory in fact. … Other special measures may seem to constitute an exception to the principle of equal treatment, insofar as, in order to achieve full and effective equality, they grant preferential treatment to the members of a group which has traditionally been subject to discrimination or whose members are placed in a situation of structural disadvantage. These are positive action measures, understood stricto sensu. … As measures granting preferential treatment to certain minorities in order to accelerate their integration into the mainstream of society constitute an exception to the prohibition of direct discrimination, they shall in principle be acceptable only if they are reasonably and objectively justified by the need to address a situation of structural discrimination which

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such measures seek to remedy, and remain proportionate to the discrimination to be addressed, and if they are temporary, i.e., do not lead to the maintenance of separate rights for different groups.65 3.3. A potential role for the Union in promoting further the inclusion of minorities The Network would welcome a more active promotion of special measures by the institutions of the Union, and sees this as a potentially important contribution of the Union to the improvement of the position of minorities in the Union. In order to move in this direction, it is not necessary to immediately impose on the Member States an obligation to adopt positive action schemes, except perhaps where certain groups – such as the Roma – are entrenched in a situation of structural disadvantage in all areas of social life 66. Because attracting more people to enter and remain on the labour market is already part of the European Employment Strategy, active employment policies based on the use of indicators relating to the employment of minorities and on positive action schemes could be further encouraged, as a first step in that direction. Indeed, in the framework of the Council of Europe, the Committee of Ministers of that organisation already has recommended that “Where they exist, national action plans for employment should pay particular attention to the labour market problems of Roma/Gypsies and include specific measures to improve their situation” (Recommendation No. (2001) 17 on improving the economic and employment situation of Roma/Gypsies and Travellers in Europe, adopted on 27 November 2001). In the spheres other than employment, the promotion of policies acting affirmatively in favour of the integration of certain underprivileged minorities first of all requires that more reliable information be collected on the situation of particularly vulnerable segments of the population, including minorities, in areas such as access to health care, education, or adequate housing. … 3.4. Recommendations The preceding observations lead the Network to make the following proposals: • There where access to nationality conditions or facilitates access to employment, education or housing, as well as to the other social goods to which Council Directive 2000/43/EC applies in accordance with its Article 3, it needs to be verified whether the rules governing access to nationality do

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not institute direct or indirect discrimination against certain persons defined according to their ethnic origin. • The debate which the European Commission shall open on the need to expand Council Directive 2000/78/EC beyond its current scope of application which is limited to employment and occupation, should include the question whether the understanding of the notion of discrimination in the current Directives should not be clarified and further improved. In particular, it should be asked whether the prohibition of indirect discrimination should be seen as imposing an obligation on the Member States to monitor, by statistical means, the impact on ethnic and religious minorities of the measures they introduce or maintain in the fields to which the prohibition of discrimination applies. The imposition of such an obligation should be considered as inherent to the prohibition of discrimination. It should include both an obligation to develop impact assessments on an ex ante basis, when a new regulation or practice is introduced, in order to anticipate its potential impact, and an obligation to evaluate, post hoc, the effective impacts on ethnic or religious minorities of existing regulations or practices at regular intervals. As explained above, the protection of the right to respect for private life vis-à-vis the processing of personal data should not be seen as an obstacle to the introduction of such a form of statistical monitoring. • The introduction within the practices of the Member States of an ex ante and ex post monitoring of the impact of regulations and policies on ethnic and religious minorities, in certain fields such as employment, education and housing, may be based on Article 13(1) EC, and form part of a revision of the Directives adopted on the basis of this provision, if and when these instruments are amended in the future. But in the field of employment, it could also be included as part of the renewed guidelines for the employment policies of the Member States, which would present the advantage of making it possible to go beyond the monitoring of the situation of ethnic and religious minorities in order to include the monitoring of the situation of linguistic minorities (including newly arrived immigrants). Finally, Article 13(2) EC, introduced by the Treaty of Nice, could provide an independent legal basis for the introduction of such monitoring processes. A combination of these possibilities should be considered. Indeed, only by locating the introduction of such monitoring of the situation of minorities elsewhere that under Article 13 EC may the situation of linguistic minorities be adequately addressed, except where, as with the Roma, the linguistic and ethnic categories intersect.

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• If and when the existing Directives adopted on the basis of Article 13 EC will be re-examined with a view to their possible revision, that examination should include the question whether, in accordance with the understanding of the prohibition of discrimination in the case-law of the European Court of Justice, 68 the Member States should be made to allow the alleged victims of discrimination to prove discrimination by bringing forward statistics demonstrating the disparate impact on the members of the categories to which they belong of certain generally applicable, apparently neutral regulations or practices. This is turn requires that such statistics are collected and made available, and that they are updated on a regular basis. • The European Commission could lead by example by including, in the impact assessments it prepares on its legislative proposals, an examination of the impact on the situation of minorities. The existence of Union-wide harmonized indicators, ensuring a comparability of the data collected within each Member State with respect to the situation of the minorities in that State, should not be seen as a prerequisite to such impact assessments of Union legislation and policies. Indeed, in assessing legislative or regulatory proposals at the level of the Union, the relevant question is whether the adoption of these proposals and their implementation by each Member State may lead, in certain or all States, to a situation where certain minorities would be negatively and disproportionately affected, would be put at a particular disadvantage, or would not have their specific needs recognized. In order to answer adequately such a question, the reliance on the indicators defined at the level of each Member State should be seen as an advantage, rather than as an obstacle, insofar as this ensures the visibility in such assessments of minorities whose situation may be neglected in the context of less refined assessments conducted at the level of the Union. …

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*Ethnic Minorities in the Labour Market: An Urgent Call for Better Social Inclusion, Report of the High Level Advisory Group of Experts on the Social Integration of Ethnic Minorities and their Full Participation in the Labour Market, 2007 Introduction 1. Overall Purpose of the Report The report is drawn up to identify which barriers prevent members of ethnic minorities 1 from fully participating in society and in the labour market. Moreover, it aims at analysing which policies have been developed and are applied by public policy and by businesses (as well as by public-private partnerships) to overcome these problems. Furthermore, it looks at successful strategies for diversity management applicable at all relevant levels. The report is, thus, a contribution to the implementation of the Lisbon Strategy which aims i.a. to raise the employment rate of groups which are usually underrepresented in and at times even excluded from the labour market. Targets of the Strategy include a significant reduction in the unemployment gaps for people at a disadvantage, including ethnic minorities, by 2010. The report includes recommendations, based on its findings, which are addressed to the European institutions, public authorities in the Member States at all relevant levels (national, regional and local), business leaders, social partners and nongovernmental organisations, including in particular those which represent and defend the rights of ethnic minorities. The Group wishes to underline that effective solutions need the commitment of the entire society. This includes the active involvement of ethnic minorities, but also the willingness of both majority and minorities to assume ownership of sustainable integration processes.

2. Ethnic Diversity – a European and Global Phenomenon … Recommendations The High Level Advisory Group of Experts (HLG) recommends on the basis of identified barriers and the assessment of good practice in both public policy

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and enterprises the European Commission, the other European institutions, the Member States’ authorities at all appropriate levels, social partners and organisations of civil society to: 1) Make the inclusion of members of ethnic minorities into the society, in particular into the labour market, a priority of the political agenda 2) Pursue equality mainstreaming and gender mainstreaming 3) Identify and address specific barriers to inclusion of members of ethnic minorities 4) Establish a sustainable long-term policy for inclusive labour markets, using a targeted, but not ethnically segregated approach 5) Mobilise all relevant actors, making use of the opportunities and value the contributions from members of ethnic minorities to the society 6) Allocate the necessary resources 7) Support mutual learning by highlighting good practice, developing knowledge and strengthening the analytical tools 8) Focus specifically on the implementation of policies to improve the situation of Roma in terms of education, employment, health and housing The implementation of these recommendations is regarded by the HLG as a way to overcome the exclusion of members of ethnic minorities from the labour market, but also from many other areas of society. Overcoming exclusion is a matter of fairness, of social solidarity and, consequently, of democracy. Minorities in Europe The HLG concentrates in its report on the overlap between membership in an ethnic minority and a social disadvantage. The HLG is aware that ethnic minorities are heterogeneous groups composed of individuals who might have different problems and different outcomes; moreover, these problems and outcomes differ from country to country. Barriers and possible solutions might very often be identical for immigrants and for ethnic minorities of non-immigrant background. Moreover, minorities share some problems with socially disadvantaged members of the majority. Members of ethnic minorities who are visible through e.g. the colour of skin, certain traditions or their life-style are running a higher risk to be discriminated and, thus, excluded from the labour market and society. Specific minority rights as those stipulated in the Council of Europe’s Framework Convention on the Protection of National Minorities are used as a benchmark

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in the enlargement process of the EU and represent preconditions for EU membership. The HLG report is embedded in a broader context. The inclusion of ethnic minorities relates to a number of Community policies which do not address exclusively this group. The EU policies on social inclusion, employment, gender equality and non-discrimination highlight that members of ethnic minorities are running the risk to be among vulnerable groups who need particular efforts. Barriers Although there is a lack of comparable data on the labour market outcomes of members of ethnic minorities a lot of evidence has been acquired by social research to support the hypotheses that • there is an ethnic wage gap which differs from Member State to Member State and from ethnic group to ethnic group; • the membership in an ethnic minority is in most cases a social disadvantage per se. The IZA country studies together with the survey among stakeholder experts and the work of the Roma experts allow defining 14 barriers which prevent members of ethnic minorities from fully participating in the labour market: 1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) 12) 13) 14)

Lack of education and training Lack of language skills Lack of recognition of skills and qualifications Lack of access to professions Lack of access to citizenship Lack of integration policies Stereotypes, prejudices and negative attitudes Lack of mobility and concentration in certain areas Industrial Change Disincentives through welfare systems Discrimination Lack of information Labour market competition Undeclared work

These barriers are relevant for all ethnic minorities. In the case of their accumulation they are mutually reinforcing and lead to the virtually total exclusion from the labour market. Some of these barriers – lack of education, stereotypes, and disincentives through welfare systems – have a tendency to become higher from generation to generation.

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Towards an Inclusive Society An inclusive society allows all members to realize their potentials. It allows the full participation in the economy, in social relations, or in culture. Equal rights are a first step towards an inclusive society. Equal rights alone, however, do not automatically entail equality. An inclusive society, thus, aims at bridging the gap between formal and real equality, provides equal opportunities for all of its members and actively promotes diversity. Discrimination on grounds of ethnic origin is considered by researchers and many stakeholders as an important barrier to the social and labour market inclusion of ethnic minorities. EU non-discrimination legislation provides for an individual right to live a life free of discrimination. Although this was a major step forward in many Member States, discrimination is still an every-day reality for members of ethnic minorities. Equality bodies are key actors to support victims of discrimination. They need to be independent and sufficiently resourced to be efficient. By developing knowledge about discrimination and raising awareness they can influence the general public. Some, but by far not all equality bodies do not only advise and assist victims of discrimination, but can take cases in their own name to court. Social partners are in some Member States involved in the drawing up of non-discrimination policy and legislation (in particular in countries with tripartite consultation systems). At European level the social partners have adopted already in 1995 a joint declaration. Internally they have adopted action plans and/or set up structures to address the problem of discrimination at the work place. Civil society is a third important actor in this context: NGOs, foundations, churches and the Third Sector are credible partners for individual members of ethnic minorities, but also for public authorities and businesses. The most important role of civil society is that it supports individual persons and that it provides for input to policy development. Very often organisations of civil society are more advanced than institutional actors. The application of non-discrimination law leads to formal equality but not to real equal opportunities. To close this gap the EU and her Member States have developed policies for social inclusion. They need to be complemented by the promotion of sensitivity for people of different ethnic origin and culture. Where the gap remains or grows from generation to generation positive action and targeted programmes can be efficient remedies. Diversity management by businesses is still relatively new in Europe. First experience has, however, highlighted that there is a business case for ethnic diversity. The most frequently quoted benefits of hiring an ethnically diverse staff are the access to a new pool of talents, a better reputation for the company, higher innovation and more creativity or more customers and employees satisfaction. Above all, however, diversity management can have a tangible impact for the benefit of

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the members of minority communities themselves. In the US, where diversity management has a longer tradition, a number of key factors for the successful application have been identified. They comprise: • the long-term commitment of top management, • the ability to define the return on investment, • the linking of in-house diversity policy with contract compliance procedures for external suppliers, • permanent monitoring, • the accountability and positive incentives for the middle management to achieve agreed goals. Only the mutually reinforcing application of all three elements – non-discrimination policies, policies on equal opportunities and diversity management – will lead to tangible results. Good Practice in Enterprises Businesses adopt their strategies for more ethnic diversity for a number of reasons: They need to comply with non-discrimination legislation, but they have also an economic interest in attracting talented people for their work force, becoming more profitable in a global market or acquiring a better reputation. The diversity policy can be a part of a more comprehensive approach towards Corporate Social Responsibility (CSR). The setting-up of a business strategy for ethnic diversity is a process with several steps. It starts usually with the “scene setting” and building of commitment which can be reflected in the elaboration of a business charter. … Diversity strategies have to be implemented through structures, such as a diversity department, leadership teams, and diversity programmes. They are often accompanied by stakeholder fora or staff networks. The implementation uses also tools, such as training, benchmarking, information and the definition of indicators. Most visible aspects of a diversity strategy are the recruitment policy and human resources development as well as the supplier policy. The communication of the strategy and the appreciation of its results and benefits are important for creating a supportive environment. …The positive contribution of ethnic minority businesses to the European economy cannot be overestimated. They are customers, business partners, tax payers and first of all providers of jobs, for members of ethnic minorities but also for people from the majority. Ethnic minority businesses share a number of common problems: very often their size, their establishment in stereotypical “ethnic niches”, a lack of access to finance and business

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counseling. A micro-credit scheme can be a possibility to launch an own small businesses for some members of ethnic minorities. Good Practice in Public Policy All political levels in the EU are confronted with the challenge to contribute to the integration of members of ethnic minorities in the labour market, in the respective communities, in the social fabric, in cultural life – shortly: in society as a whole. It is not possible to define a “typical” European strategy for the integration of ethnic minorities, but there are several parameters – the requirements for the access to citizenship or to the labour market, the possibilities to participate in policy development plus the way, how non-discrimination is ensured and which opportunities long-term residents without citizenship have in the economy and society – which determine the impact of integration strategies. It can be noted that neither the ethnic or cultural homo- or heterogeneity nor the length of presence of an ethnic minority are decisive whether the public policy entails more or less inclusion. An analysis of Member States integration policies highlighted examples which can be qualified as good practice. They can be found in all relevant areas: Protection of rights – Access to citizenship… – Non-discrimination legislation and policies… – Fight against racism and xenophobia… Political and social participation The possibilities and opportunities for members of ethnic minorities to directly influence decision making can be based on the openness of the political class to co-opt members of ethnic minorities (such as e.g. in France), on specific constitutional and legal provisions regarding the representation of ethnic minorities in parliaments (such as e.g. in Hungary, Romania, Slovakia, Slovenia or Croatia), and on political liberties – e.g. the right to vote and stand for office in local elections (such as e.g. in the Nordic countries). Education, training, development and recognition of skills and qualifications Integration courses which comprise language training or vocational training are recognised as a precondition for successful integration. Integration through education needs to start with children and should ideally comprise also a pre-school component, particularly for Roma children. The Hungarian law to abolish school segregation needs to be highlighted as an important step

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forward to provide Roma children with chances for the future. An important aspect in the context of education and training is the recognition of skills and qualifications which have been acquired in a third country. … In addition, there is a growing recognition that the integration process does not necessarily involve a change of identity, but rather the acquisition of practical intercultural skills on part of the members of the minority, and indeed also (at least to some extent) on part of the majority. Access to employment and self-employment – Labour market integration and the removal of barriers.. – Access to public service… – Access to self-employment… Social inclusion and fight against poverty Ethnic minorities and immigrants are identified in the European strategy on social inclusion and social protection as vulnerable groups in terms of poverty risk.

* The Bolzano Declaration on the Protection of Minorities in the Enlarged European Union Introduction “Respect for and protection of minorities” comprises one of the prominent Copenhagen criteria which candidate countries to the European Union have had to fulfill in the past decade. Various pre-accession instruments have served to streamline candidates’ attitude vis-à-vis their minorities. In the EU’s internal sphere, however, this topic has remained very much a non-topic. Will minority protection vanish from the EU “scene” once the candidate states acquire full EU membership? In response to this question, the Local Government and Public Service Reform Initiative (LGI) of the Open Society Institute (OSI) and the European Academy Bolzano (EURAC) organized “Minority Protection and the EU: The Way Forward.” This conference was hosted by EURAC in Bolzano/Bozen/Bulsan, Italy, January 30–31, 2004, and co-sponsored by LGI and the European Commission. The conference joined a range of experts, policymakers, and

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NGO representatives to address how the importance of the integration and protection of minorities (which are acknowledged at the political level) could be transformed into concrete legal instruments inside the framework of the newly enlarged and re-designed European Union. Conference proceedings will be published in mid-2004 by LGI. This declaration is an additional outcome of the conference and forms an integral part of the conference proceedings. It comprises a package of policy proposals for an enlarging EU in the area of minority protection. The declaration builds on a rising policy consensus that the Union—in addition to the member states, the Council of Europe, and the OSCE—has to play a certain role when it comes to the protection of European minorities. Nevertheless, the declaration takes account of the special nature of the EU, the principle of subsidiarity, the danger of possible duplications, and the existing diversity of approaches regarding minorities. Though neutral in its opinion, the declaration highlights what is politically and legally possible within existing policy and demonstrates how the protection of minorities can be strengthened in a consistent manner. It reflects the issues and views raised and discussed at the conference in Bolzano/Bozen/Bulsan. At the beginning of 2004, some ninety NGO representatives, experts, and political figures convened at the European Academy in Bolzano/Bozen to discuss the EU’s engagement in the area of minority protection after enlargement. The signatories of this Bolzano/Bozen Declaration were all speakers and respondents who presented papers at that event.9 On May 1, 2004, the 16 undersigned respectfully submit the following proposals to the European Union and its member states, old and new, for urgent consideration.

The enlarged European Union should take the following actions to enhance protections for persons belonging to minorities 1. Improve monitoring of candidate states • In the framework of the accession negotiations with Bulgaria, Romania, and, eventually, Turkey and any other future candidate states, the European

9

This declaration forms an integral yet distinct part of the proceedings of the conference “Minority Protection and the EU: The Way Forward.” An anthology of key papers will be

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Union should improve the consistency, credibility, and thereby the potential impact of its assessments of national policies regarding minorities. • The European Union should intensify its institutional dialogue with the Council of Europe. When assessing the performance of candidate states in the area of minority protection, the Union should use the standards the Council of Europe has developed. The Union should continue, for example, to rely and draw upon the findings produced through instruments such as the Council of Europe’s Framework Convention for the Protection of National Minorities (FCNM). • The European Union should considerably improve its in-house expertise in the area of minority protection, but avoid duplicating efforts that the Council of Europe has already undertaken. The Union should increase the number of European Commission personnel who monitor minority situations in candidate states. • The European Union’s future monitoring effort should be transparent. Its reporting should draw explicit links between its sources of information, its findings, and any recommendations that may flow from them. The monitoring effort should also be made consistent by focusing not only on a candidate state’s formal compliance with international standards but on the process by which it complies in practice at the national, regional, and local level.

2. Integrate minority protection into EU monitoring of human rights within member states • The European Parliament should introduce a separate subheading on minority rights into its regular reports on human rights. • If the European Commission submits a proposal to expand the mandate of the current European Monitoring Center on Racism and Xenophobia (EUMC) in Vienna, this proposal should pay requisite attention to the protection of minorities. • If the European Union establishes a human rights agency or monitoring mechanism, member states should be required to submit annual reports

published by the Local Government and Public Service Reform Initiative (LGI), Open Society Institute–Budapest. To order the volume underlying the Bolzano/Bozen Declaration and edited by Gabriel N. Toggenburg, please contact: Local Government and Public Service Reform Initiative, Nádor u. 11, Budapest, Hungary H–1051, [email protected], http:// lgi.osi.hu For more information on the PECEDE (Platform for an Enriching Culturally and Ethnically Diverse Europe) project visit http://www.eurac.edu/pecede

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containing a separate subheading on minority rights. If the EU extends its activities into the area of human rights, it should take into account the Council of Europe’s experience and seek close interinstitutional cooperation.

3. Strengthen the EU as a community of values • The next IGC should draw on the proposal of the Italian EU Presidency, delivered at the end of 2003, to expand the founding values of the EU currently listed in Article 6 TEU by amending Article 2 of the draft constitution to include the following passage: respect for human rights, “including the rights of persons belonging to minorities as developed within the Council of Europe.”

4. Improve EU-CoE-OSCE cooperation • The European Commission’s Directorate General for Justice and Home Affairs as well as the Directorate General for Culture should enter into regular and institutionalized dialogue with the two independent and expert committees supervising the implementation of the Council of Europe’s Framework Convention as well as its Language Charter. The same goes for Parliament’s Committees for Human Rights and Culture. This will enable EU institutions to identify problem areas needing special attention, and these areas must be considered when determining aims, fi nancial guidelines, and priorities under relevant EU policies. • The European Commission should make more active use of the Framework Convention when monitoring candidate states’ performance in the field of minority rights. For example, the Commission should take part regularly and actively in monitoring debates in the Committee of Ministers or make use of the Union’s political weight in order to leverage the Committee of Ministers to ask a state to submit a timely report on relevant issues.10 • Joint program planning between the Union and the Council of Europe should be intensifi ed in both quantity and quality. Emphasis should be 10

Resolution (97) 10: rules adopted by the Committee of Ministers on the monitoring arrangements under articles 24 to 26 of the FCNM. Available online at http://cm.coe.int/ta/ res/1197/97×10.html

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placed upon cooperation on equal terms, based not only on joint action but also on joint planning and programming. • As regards the evolving common foreign and security policy of the EU—tasked to “safeguard common values”—the OSCE High Commissioner on National Minorities (HCNM) should be invited to assist in developing approaches to and policies toward third countries, including: the conditionality of aid and trade, support for EU confl ict prevention and preventive diplomacy, and developing EU and EC expertise within the offi ces or at the disposal of the prospective new EU foreign minister. • The EU foreign minister and representatives of the Political and Security Committee should convene once a year in order to exchange information and observations with the HCNM.

5. Bring to life the new constitutional motto “United in Diversity” • The Commission should report annually on compliance with the horizontal integration clause (Article 151, par. 4 TEC). This report should examine the effects of EU secondary legislation and the extent to which it takes into account linguistic diversity, specific national and regional features, and the cultural heritage of member states and regions under EU policy. This “diversity impact report” should be delivered to national parliaments and the Committee of Regions. • The Commission should propose a multi-year program for linguistic diversity with funds earmarked for regional and minority languages. Moreover, the IGC could introduce an article on linguistic diversity, as was recently proposed by the European Parliament in the Ebner report. In addition, EU anti-discrimination provisions should be amended to include the word “language” in Article III–8 and Article III–3 of the draft constitutional treaty (currently Article 13 TEC). This would give the Union the competency to take measures against linguistic discrimination, a form of discrimination which is expressis verbis forbidden according to Article II–21. • The constitutional treaty should explicitly provide room for affirmative action also in areas beyond gender discrimination. Accordingly, Article III–8 of the draft constitutional treaty should be amended to include a third paragraph which reads as follows: “With a view to ensuring full equality in practice, the principle of equality shall not prevent the maintenance or

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adoption of Union or member states’ measures to prevent or compensate for disadvantages linked to discrimination on the basis of the grounds listed in par. 1.” • In order to underline the important sub-national dimension of diversity, the next IGC should amend Article 3 of the draft constitutional treaty (the Union’s objective) by adding the following specification (indicated in italics): “The Union shall respect its rich cultural and linguistic diversity at the national and sub-national level, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced.”

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OSCE – HCNM *Presentation to HCNM 15 Anniversary The Impact of the Institution of the High Commissioner in the 15 years of its existence and the challenges ahead High Commissioner, Excellencies, Ladies and Gentlemen, It is an honour for me to be invited to speak to such a distinguished and informed audience on “the Impact of the Institution of the High Commissioner in the 15 years of its existence and the challenges ahead”. I am delighted to represent the Council of Europe Advisory Committee as its President, to reinforce our outstanding relationship in building “Security through Justice”. This 15th anniversary comes at the same time as the 10th Anniversary of the work of the Advisory Committee, where we are undergoing a major review of the impact of our work and learning lessons for the future. Already it is clear how much we have valued and benefitted from the close cooperation with the High Commissioner and his office, this was apparent at a conference we convened last month in Strasbourg. I will return to how we support each other’s work later. An anniversary is an opportunity to indulge in a little reminiscing. I recall being a civil society representative on the United Kingdom delegation at the CSCE meeting in Helsinki in 1992. Negotiations were taking place about creating a High Commissioner for National Minorities (sic)- five years before the Framework Convention came into force. Some of you will know that the United Kingdom officials were at that time under political instructions to oppose this initiative primarily, because of the existing conflict in Northern Ireland. However a number of thoughtful U.K. Foreign Office officials understood the value a High Commissioner might have in preventing conflicts, seeing the war in former Yugoslavia, the fighting in the South Caucasus, the tensions in central Europe and in the Baltic States. In the true spirit of freedom of expression, the UK delegation allowed me to speak to the one plenary meeting a week on behalf of a civil society organisation, to argue for a High Commissioner. In due course and once the proposal excluded situations that involved terrorism, the United Kingdom, alongside a number of initially uncommitted States, became one of the strongest supporters of the High Commissioner. It was convinced by the quality and the impact of his work on the ground.

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Let me move from the anecdotal to the analytical. I would like to focus on the past impact and on the future challenges, although an experienced audience such as yourselves will know that “past history is not the determinant of future history”.

Success You will also know that in the field of quiet diplomacy it is difficult to attribute success to one particular individual, to one institution. Additionally the art of finding a sustainable solution is in orchestrating many actors and in encouraging them to own the solution rather than to seek personal acclaim. The High Commissioners Office, with its very modest resources but with rich talents at its disposal, has been active in so many regions and States of Europe. As diplomats you will know well the challenges posed by the many new democracies in Central and southern Europe, the transformation of the Soviet Union. changes in Central Asia and in Eastern Europe, the growth of nationalism, the “frozen conflicts” and you know how many possibilities for new conflicts did not emerge. Time after time quiet diplomacy involving the HCNM succeeded in reducing tensions. In parallel long term measures were put in place to protect national minorities, drawing in other inter governmental actors including the Council of Europe, the United Nations and other parts of the OSCE. There are many scholarly studies that have reviewed the HCNM’s impact, in specific areas, positively. These merit further analysis and consolidation together. The High Commissioner was not able to be active in Northern Ireland, where I was last week. Even here the peace process drew inspiration and informal advice from the High Commissioner’s Office and learnt from his methodology. Nevertheless in this celebration of success there also needs to be a careful, dispassionate view on failures. There is a new important debate on why international organisations were not able to prevent the recent conflict in Georgia and why the HCNM was not permitted to play a more significant role. Even if the High Commissioner is permitted to play a leading role, an old English adage comes to mind: “You can lead a horse to water, but you can’t make it drink.” This is where participating states, have a key role to play with peer group pressure to support the HCNM or bodies like the Advisory Committee. I do not want to dwell on any failures as the history of the High Commissioner’s work has been one of success followed by success working in close cooperation with many actors like the Advisory Committee.

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Independence One issue that demonstrates the maturity of States and of the High Commissioners’ Office is the respect of each others independence and the constructive dialogue that takes place in the OSCE Permanent Council and elsewhere. Many in this audience will have seen for yourselves the impact that the High Commissioner has in these fora. There may be modest parallels to the reports that I present to the COE Ambassadors as President of the Advisory Committee, and my more frequent attendance at the Human Rights Group meeting. We share our views in a genuine spirit of dialogue and listen to each other carefully. The High Commissioners have had a delicate path to pursue to attract support for their work, but each of them has been a man of distinction and integrity. I commend you, as representatives of Participating States in the OSCE, for ensuring that the High Commissioners are independent and seen to be independent. This undoubtedly has strengthened their impact.

The Advisory Committee and the Framework Convention I promised to say a little more about the cooperation of the HCNM with the Advisory Committee. All three High Commissioners have argued strongly in favour of States ratifying and implementing the Framework Convention. They can in part take credit today for the 39 States that have ratified the Framework Convention in good faith and observe its principles. It is difficult to see how there could be a better and closer relationship with our mutual concerns for national minorities but working with different mandates and modalities. The High Commissioner’s phrase “Security through Justice” is particularly helpful to us. as we could envisage our work as being Justice through democratic security. Our work can inter alia be characterised as promoting justice through democracy and the social inclusion of all communities including national minorities. We are invited to and accept invitations to attend each others relevant meeting. For example this year I was please to be invited to attend the discussions and conferences on National Minorities and Interstate Relations as well as the Conference marking the 10th anniversary of the Oslo Recommendations on the Linguistic Rights of National Minorities. I have not been so pleased by the invitations to transform my presentations into papers, but I am sure it will add to their impact.

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Similarly the Advisory Committee has invited the High Commissioner to its meetings, his staff attend Council of Europe meetings with government experts, while a strong team of his past and present staff attended our Impact Review Conference last month. They added considerable value to our deliberations. Furthermore the Secretariat share information and advice frequently and our cooperation has recently been singles out for specific public praise by the Swedish Presidency of the Council of Europe.

Future challenges The Advisory Committee at the outset was inspired by the HCNM Recommendations including the Lund recommendations on the political participation of national minorities. The Advisory Committee has used these over the past ten years and has now built on these with its new Commentary on the “Effective Participation of National Minorities in Cultural, Social, Economic life and in Public Affairs”. The effective participation of both states and minorities in our work and the work of the High Commissioner has lead to a shared ownership, better outputs and genuine sustainability. The participation of minorities within States can come in many forms ranging from autonomy provisions to effective councils of national minorities. I invite you to explore our Commentary which identifies many such possibilities. It is clear from our recent Impact review conference and our new Commentary that we all need to do more to engage and involve minorities and not just their political elites. There is a need for a shared ownership in the State by members of national minorities.

The Economic Dimension Historically the CSCE was based on three baskets: the Security dimension, the Economic dimension and the Human Dimension. One of the first public events of the Max van der Stoel was held in the European Bank for Reconstruction and Development in London that I recall attending in 1993. The last few months have made us all, including the stock exchanges of New York and Moscow and the central banks of Hungary and Iceland, realize the importance of our economic interdependency. The mantra that market forces will find -by definition- “the right solution” set with the sun this autumn. Many of us hope that that there will be a new dawn in 2009. The global economy is on life support and without inter

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governmental responses would have been turned off. The agenda is changing both on ethnic and economic issues and the time may be ripe for the HCNM to look more closely at economic security and minorities ….. how trade, investment, migration, remittances and aid can contribute to reducing tensions and building good and sustainable inter community relations. Would there be stability in places as far apart as Moldova or Kosovo without the remittances from abroad? Would there be major social conflicts involving Roma in Western Europe, if their economic situation was properly addressed? Would any tensions in the Balkans be reduced by stronger trade across boarders? The HCNM philosophy of “integration with respect for diversity” is the right way forward. The new Advisory Committee Commentary on Effective Participation shows that employment and economic participation is essential for harmoniously integrated societies, both in Western and Eastern Europe. There are high social and political risks, if large parts of the resident population are physically segregated and if they are discriminated against in their access to the labour market. The work of the Advisory Committee has revealed that economic exclusion undermines our common cause of working for security through justice. It is clear that in a number of parts of the world this economic approach has been successful. It includes the origins of the EU with the Coal and Steel Union. Consequently I ask could more economic initiatives be developed on the periphery of the EU or at the boarders of central Asia? Can economic initiatives be targeted to reinforce economic interdependency between communities and promote cooperation between states? There are real threats that a major recession will affect minority/majority relations in parts of Europe. However there are now opportunities to undertake high quality analyses within the High Commissioners mandate, look towards what ameliorative economic measures can bring communities and countries together and develop some pilot initiatives with others.

Conclusion In conclusion let me adapt a remarkable speech made last week, on 4th November. The true strength of the High Commissioner in seeking peace and security comes not from his might of arms or the scale of his wealth, but from the enduring power of ideals, democracy, liberty, opportunity and unyielding

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hope.….realised through diligent diplomacy and dedicated work of the highest quality. The Institution of the High Commissioner has made a major impact in promoting peace over the last fifteen years and, - given liberty, opportunity and unyielding hope - our current High Commissioner can meet the security challenges ahead.

*Keynote speech at the seminar: “European Year of Intercultural Dialogue: The Minority Agenda” The Rise of Populism and Its Implications for National Minorities Ladies and Gentlemen, Thank you for inviting me to the European Parliament. As High Commissioner on National Minorities, I am particularly happy to be here since the European Union has been the single, most effective contributor to interethnic peace and security in post-Cold War Europe, and continues to be one of my key partners. The 1993 Copenhagen criteria for the EU accession – in particular, the requirement to respect minority rights, – have helped my predecessors achieve significant results in a number of countries that are now full-fledged members of the EU club. The EU’s role in advancing the minority agenda is undisputed. This makes this gathering such a highly appropriate venue at which to discuss new developments in interethnic relations. The rise of populism is one of them. How did it emerge? What is its impact on interethnic relations? Do we exaggerate its significance? Populism is not necessarily dangerous. In some ways, social democratic movements in late 19th- and early 20th-century Europe were populists. Whether we are social democrats or not, it is easy to agree that the emergence of the social democracy did help us achieve greater social justice and empower a large section of the public. Populism becomes a menace when it employs xenophobia and extreme nationalism to further its aims. We should be concerned about this brand of populism. The Roma community and the injured policemen in the northern Czech town of Litvinov would certainly agree with me. Last November, almost exactly 70 years since Kristallnacht, hundreds of extremists, masked and dressed in black, attacked the Roma neighbourhood there. We all thought that

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the term “pogrom” had been left behind in the last century. It seems however to be making a return, in the very heart of Europe. believe that the political mainstream can and should do more to counter such populists. Divisive politics leads to the destruction, rather than the consolidation of our States. It fractures our societies and makes living together in harmony less likely. Ultimately, it results in interethnic clashes and violence. Let us examine together how populism emerged and, more importantly, what we can do about it. There is a widespread consensus in academia that there are two reasons for the emergence of populism in Western Europe. The first is value change. The most conspicuous conflict in post-war Europe has centered on economic resource allocation. As class conflict over the economy receded, value conflict emerged. Ronald Inglehart has famously described it as “post-materialist”. The attitudes of citizens change. They are less concerned with material well-being and have switched their concerns to more qualitative areas.11 It would be naïve however to disregard themes such as unemployment, inflation and welfare provision. Indeed, surveys show that these are still important for the bulk of the population.12 But it would be even more naïve to assume that these issues remain the principal source of social conflict. The second reason is the incapacity of traditional parties to represent new issues. New issues include environment, national identity, immigration, moral traditionalism (mainly concerning sexuality and family roles) and law and order. Many voters feel that the traditional political parties have disregarded these issues and failed to take up and implement their demands. For example, many blue-colour workers – the electoral stronghold of the social democrats – have fallen prey to the populist rhetoric. Populism is also on the march in Central and Eastern Europe. The reasons for its prominence there are both different and similar. I tend to agree with the factors outlined in the recent book “Democracy, Populism and Minority Rights”, edited by my co-panellists, Hannes Swoboda and Jan Marinus Wiersma. The populists’ success in Central and Eastern Europe has to do with the painful transition from Communism. Once the initial enthusiasm for democracy faded, many people felt that they bore the brunt of the “Big Bang” economic reform. They loathed the Communists but they grew disillusioned with 11

12

Roland Inglehart: The Silent Revolution: Changing Values and Political Styles among Western Politics, Princeton University Press, 1977. Standard Eurobarometer 69, 1. Values of Europeans, November 2008, pp. 65–70. According to the data from the study, the post-materialist rate has fallen slightly in the European Union compared to the autumn 2005 poll.

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the reformers too. Hence, all sorts of populists have become an almost natural choice for the voters. Corruption in the new governments made many people more and more disenchanted with the political mainstream. The book also points to the fact that both the right and the left in Central and Eastern Europe pursued almost identical policies. Economic austerity and EU-NATO membership have been the aspirations or uneasy choices of both camps. Again, it has become difficult for the average voter to differentiate between the traditional right and left. The general weakness of political parties, trade unions and civil society in the post-totalitarian societies made it easier for the populists to gain a foothold and prosper. To sum up, extreme populism – both East and West of Vienna as we say in the OSCE – plays on human insecurity. It rouses passions by saying that “outsiders” – foreigners, homosexuals and minorities – intrude on our values. It claims that “aliens” are stealing our jobs, abusing social security and reducing opportunities. It appeals to nationalism and highlights the inaction of mainstream parties on the new issues. Ladies and Gentlemen, The Roma community has become a favourite target of extreme populists. Roma are the largest minority in Europe. And the most discriminated one. An examination of their plight should give us important insights into why extremism is on the rise. In most countries, Roma live on the fringes of society. They experience severe poverty and lack of housing. They face restricted access to health care and education and high levels of unemployment. They are excluded from political decision-making and being members of the police service. As a result, the Roma communities are exploited by criminals, such as drug and human traffickers. In some countries we hear that the extremist networks are trying to recruit the Roma. The governments of Central and Eastern Europe – where most Roma live – are not doing enough to rectify the situation and integrate the Roma. Marginalization of the Roma makes them an easy scapegoat for the extreme populists. It provides fertile ground in which to cultivate interethnic tension between the Roma and the majority population. Faced with persistent discrimination and poverty, the Roma are looking elsewhere in search of a better lot. They migrate to “Old Europe.” This is a new phenomenon which has direct relevance to our discussion today. For many years, the Roma from outside the EU arrived in the EU as asylum-seekers or economic migrants. The EU enlargement and the expansion of the Schengen area make their migration even easier. The arrival of the Roma is challenging for both local authorities and communities. So far, the overwhelming response has been to merely tolerate these new neighbours. No serious effort has been invested in their integration into

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society. For example, employment, education, accommodation and social services for the newcomers have all largely been ignored. The recent events in Italy are a wake-up call for policymakers in Western Europe. The lack of integration policies gives a free hand to the populist extremists. They use isolated incidents to portray the entire Roma community as criminals. They thrive on the inaction of governments. They mobilize mobs to attack the Roma. This generates considerable friction and, as we have seen, even violence in some cases. Having said that, I believe that the Roma have a responsibility too. Roma leaders have pointed out that the Roma have to make their own efforts to integrate even if they want to retain their traditions. The problem is that the Roma often face great challenges in meeting their responsibility. We need to empower them to do so. As High Commissioner, I am also concerned about the impact of the populists on regional and international security. Their rhetoric poisons interethnic relations domestically. It can however have a toxic effect on inter-State relations too. A national minority in one State is often a national majority in another, the so-called kin-State. A kin-State may be right next door. Leaders in the kin-State often feel pressure to intervene; especially if their ethnic brethren experience injustice, real or perceived. This is how ethnic tension in one State can become an inter-State conflict. Ladies and Gentlemen, The question is what can we do to counter the negative effects of populism? One answer is that mainstream political parties must play a more prominent role. Till now the populist leaders have been setting the agenda. What is more alarming is that mainstream political parties have followed this agenda. Instead, they should be explaining the dangers of extreme nationalism to the electorate. At the same time, they have to address the anxieties of the people. They need to speak openly about integration, about managing migration. They should not shy away from the issues that are of concern to the “silent majority”. Mainstream political parties must also embrace minorities, invite them to become party members and field them as candidates in elections. By doing this, they foster a sense of belonging amongst minority communities, they give minorities a voice and a stake in governing the country, and they even gain votes. We also need robust anti-discrimination legislation where it does not already exist. Where it does exist, it must be enforced vigorously. The justice system – courts, prosecutors and police – should be impartial and representative of the society it serves. If the Rule of Law is adhered to, minorities will feel reassured.

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The populist leaders will still be able to make inflammatory speeches. These could very well damage interethnic harmony. But their words will be empty if the justice system enjoys the trust of the entire population. The European Union’s Race Directive of June 2000 and Protocol 12 to the European Convention on Human Rights are good examples of addressing a root cause of interethnic friction. The bad news is that many EU Member States have failed to implement this Directive or to ratify the Protocol. Europe must remain a leader on minority issues. The EU needs to ensure that its members too respect and promote minority rights within their own jurisdiction. The inclusion of the minority clause in the EU Constitution and, later, in the Lisbon Treaty are good steps. But it is important to remember that EU membership is not an exam that one passes and then promptly forgets all about. There has to be a continual review of the policies and practice of individual States within the EU with regard to minorities. Education can play a major role in depriving the populists of their electoral base. If we are to nurture a future generation of responsible citizens, we must start early – in schools. It is in school that children from different ethnic backgrounds meet and learn that being different does not mean being an enemy. In fact, many friendships that last a lifetime are born in the classroom. Second and third languages are mastered here. Foreign cultures become appreciated. From my perspective, education accomplishes its mission if it is not separated along ethnic lines. It accomplishes its mission if it promotes positive values and language skills. Integrated education in multi-ethnic States gives careful consideration to the place in the school curriculum of the history and culture of all ethnic communities within a State, not only that of the national majority. If we implement this sort of education, populists will have far fewer converts. What we also need are strong international institutions to take on extreme nationalism. These institutions must have the powers to expose any wrongdoing. They must have the clout to call the perpetrators to account. The backing of the international community is crucial in the work of institutions such as mine. It is more difficult to sow the seeds of hatred when extreme nationalists know that others are watching. Europe must also zoom in on the Roma situation. Not just with words, but also with deeds. Round tables, conferences and seminars are useful. But they are not a substitute for action by governments. National Roma strategies should therefore be used to foster Roma integration and inclusion. They should not be just empty documents. They must be sufficiently funded and

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put into practice. The implementation of the OSCE Action Plan on the Roma and Sinti of 2003 should finally become a reality. I also believe that freedom of movement cannot be limited on the basis of ethnicity in Europe. Nor can economic opportunities and the right to pursue a better life for oneself and one’s family. I therefore urge MEPs to resist any restrictions in these fields. Better social conditions and employment opportunities for the Roma will ease tension. The populists will be left empty-handed too, when seeking a target for its anti-alien action. Ladies and Gentlemen, People feel less secure these days. Economic and financial turmoil has left thousands of people jobless. This situation is expected to continue for some years. People are understandably angry and they look for ways to ease their frustration. In times of upheaval, the extreme populists may be tempted to exploit any ethnic cleavage. Extreme nationalism is a quick-fix way to deal with human insecurity in an economic slump. The political mainstream must challenge extremism and intolerance. Politicians need to acknowledge and respond to the voters’ frustration and heed their concerns. But they should never compromise on the key principle of respect for diversity. Those who do so undermine the very foundation of our societies. Integrated education, strict adherence to the rule of law, energetic leadership of mainstream political parties and alert international watchdogs will help us confront extreme populism. I look forward to the discussion and wish you every success in promoting the minority agenda in the European Union.

* Welcoming remarks at the Launch and conference of the ‘Bolzano Recommendations on National Minorities in Inter-State Relations’ Ladies and Gentleman, It is my great pleasure and honour to extend a warm welcome to all the eminent academics and practitioners from across the OSCE region assembled

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here today. We are grateful to the Autonomous Province and the City of Bolzano/Bozen for hosting this event. As President Stuflesser already told us, this region has long been an important cultural and economic junction of Europe. This is the place where international trade flourished, various languages thrived and communities came together for the good of their children and which serves as a bridge of friendship between Austria and Italy. It is therefore only fitting that we gather in Bolzano/Bozen to discuss how national minorities can become a source of amity and good neighbourliness rather than the subject of contention in relations between countries. There is no need to convince you who are present of the topical nature of today’s conference subject. It has become customary for States to question each other’s behaviour in the area of human rights, including minority rights. In 1991, the OSCE participating States declared in Moscow that “commitments undertaken in the field of the human dimension of the OSCE are matters of direct and legitimate concern to all participating States and do not belong exclusively to the internal affairs of the State concerned.” Such interest has increased ever since. The formation of new states and nation-building, ethnic mobilization and changes to population composition and borders have all contributed to this phenomenon. This interest is highly relevant for my mandate. The High Commissioner on National Minorities (HCNM) is required to be an instrument of conflict prevention at the earliest possible stage with a focus on national minorities. In fulfilling my mandate, I have devoted particular attention to the question of national minorities in the context of inter-State relations. It is precisely in this context that minority issues tend to become excessively politicized and give rise to tensions, if not outright confrontation. Indeed such tensions have defined much of contemporary history, playing out in regions such as the Balkans and Caucasus, Central Asia and Central Europe, the Baltic States and so on. Furthermore, the HCNM has existed as an institution for 15 years. In the course of those years the High Commissioner has gained considerable insight into potential causes of conflict – both in terms of their effective identification and in terms of conflict prevention as well as conflict resolution. Both my predecessors and I have had to deal with situations involving persons belonging to ethnic groups who constitute the numerical majority in one State, but the numerical minority in another, often neighbouring, State, also referred to as “kin-State”. These situations often engage the interest of the government authorities in the States concerned. However, unless addressed through constructive dialogue and co-operation, tension may occur. Whenever possible, such tensions should of course be mitigated or avoided all together.

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We should not consider all kin-State activities as problematic. National minorities in inter-State relations are not by definition a source of conflict. On the contrary, minorities can play a very positive role in relations between States, contributing to peace and prosperity. They can help further develop transborder co-operation. Kin-State support may be welcomed by States of residence and carried out in a mutually advantageous way. The stability and prosperity of South Tyrol and of other multicultural areas in Europe proves that ultimately inter-State cooperation in minority issues can be a key to the enrichment of societies, both culturally and economically. At the same time, however, we cannot ignore reality. Often – regrettably too often – inter-State relations significantly deteriorate when the question of support for national minorities arises, neither benefitting minorities nor helping prospects for peace and stability. Sadly, this remains a widespread problem in twenty-first century Europe. Finally, in dealing with issues of national minorities in inter-State relations, I have realized that there is a need for greater clarity on how States should pursue their legitimate interest with regard to national minorities abroad without jeopardizing principles of good neighbourly relations. This is what prompted the initiative to compile the “Recommendations on National Minorities in Inter-State Relations”, which I proudly present today. The purpose of the Recommendations is twofold: to synthesize the HCNM’s experiences over the past 15 years and to bring some clarity to the highly sensitive, but nevertheless relevant, questions regarding the status and the role of national minorities in inter-State relations. The main message of this new set of recommendations is that the protection of national minorities is primarily a responsibility of the States where minorities reside. At the same time, other States may have an interest in the well-being of minority groups abroad, especially those with whom they are linked by bonds of kinship, language and history. This legitimate interest, however, does not entitle or imply a right under international law to exercise jurisdiction over these persons on the territory of another State. States may pursue their interest as long as they respect the principles of territorial integrity, sovereignty, protection of human rights, including minority rights, and non-discrimination. To paraphrase American journalist and humorist Arthur Baer: a good kinState is a fellow who smiles – or even frowns – at you over the back fence, but doesn’t climb over it and who eventually persuades the neighbour to work together in tearing down the fence in peace and harmony. On the other hand, the Recommendations state clearly that sovereignty implies not only rights but also responsibilities. They underline a State’s responsibility to protect and promote human rights, including minority rights,

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The Recommendations also reiterate that human rights are a matter of international concern. In other words, when it comes to the abuse of human rights, including minority rights, it is also the responsibility of the international community to address such abuses. Kin-States therefore have a say on this matter by virtue of being members of the international community. The Recommendations further note that kin-States may have a special interest with regard to minorities abroad. They concede that this interest is not only understandable but also legitimate. At the same time, they do not give the kin-States more rights and responsibilities vis-à-vis minorities abroad compared to other members of the international community. Under international law, kin-States are not allowed to intervene unilaterally or to exercise jurisdiction over citizens of another State without that State’s consent, with the exception of some, limited, areas such as education. This is a fundamental principle of international law. The Recommendations spell out the obligations of States of residence with respect to their national minorities. They outline responsibilities and limitations on the provision of support by “kin-States” to national minorities abroad. Finally, the document describes multilateral and bilateral instruments and mechanisms for dealing with contested issues involving national minorities and inter-State relations. What are the key ingredients for the successful management of national minority issues in inter-State relations? The new Recommendations set these out quite clearly. First and foremost, the State of residence has to respect and promote minority rights while not alienating its minorities. This means that the State of residence must commit itself to effecting integration of its society and strengthening social cohesion. Second, States are allowed to extend benefits to persons residing abroad. Let us be clear: this is not prohibited. Such benefits may include cultural and educational opportunities, travel benefits, work permits, facilitated access to visas and the like. They should, however, be granted on a non-discriminatory basis. At the same time, States should refrain from taking unilateral steps and fuelling separatism. Third, the conferral of citizenship to persons residing abroad is easily one of the most common causes of tension and conflict. This should only be done in strict adherence with the principles of good neighbourly relations and territorial sovereignty. Kin-States should refrain from conferring citizenship en masse, even if dual citizenship is allowed by the State of residence. This point is particularly important. The presence of kin-State’s citizens on the territory of another State must never be used to undermine the sovereignty and territorial integrity of that State. It provides no justification in this regard. In other

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words, kin-States cannot give out passports to citizens of another State and then expect to claim protection for a particular group of their citizens on the territory of that State. Fourth, bilateral treaties, multilateral agreements or transfrontier co-operation between local and regional authorities and minority self-governments can contribute to tolerance and economic well-being, strengthen inter-State relations and encourage dialogue on minority issues. Such arrangements are far more constructive than exchanging accusations over the fence. Finally, I cannot emphasize enough the principle of credibility. States should ensure that they themselves respect and promote minority rights within their own jurisdiction, when granting benefits to national minorities residing abroad. As the saying goes: put your own house in order first. Ladies and Gentlemen, I would also like to take this opportunity to acknowledge the contributions made by others on the subject of the Conference today. First my predecessor Rolf Ekéus, whose statement on “Sovereignty, Responsibility and National Minorities” is considered to be one of the most succinct and thoughtful contributions to this debate and provided the impetus for our new set of recommendations. Second the Council of Europe’s Venice Commission, who broke new ground in the field with their “Report on the Preferential Treatment of National Minorities by their Kin-State”. I am very happy to see members of the Venice Commission here with us today. The OSCE and the Council of Europe are, in my view, two branches of the same tree. Finally my thanks go to the European Academy who graciously agreed to host and support this Conference. The Academy has become one of the eminent centres for the study of autonomy and minority issues in Europe, and this region has been witness to one of the best success stories in the history of the accommodation of the rights of national minorities. Ladies and Gentlemen, No wonder I have high expectations for this Conference and its practical follow-up. The four sessions of the Conference mirror the general structure of the Recommendations and should help the academic community and practitioners alike, myself included, to make the best use of them. The first session will present the overall content of the Recommendations within the context of the contentious and recurring issue of national minorities in inter-State relations. The second session will look at the Recommendations from the specific perspective of international security. It will attempt to cast light on how the Recommendations can contribute to furthering international peace and security.

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The third session will discuss the role of the Recommendations within the context of the existing legal framework of minority rights protection, attempting to explore their potential added value. The emphasis on security and minority rights in today’s sessions is not without good reason. It is a reflection of HCNM’s overall philosophy as an institution, which is “a human rights informed approach to security” based on OSCE acquis, an approach that does not choose between security and justice but believes that long lasting and sustainable security can only be achieved through justice. The fourth and final session, to be held tomorrow morning, is designed to provide a first insight into the role the Recommendations might play in certain regions. This is particularly important to my work, as the practical impact of general norms like the Recommendations also depend on the situation on the ground. In this context, I would like to inform you that I intend to organize several regional seminars to examine this issue in more detail, with the close involvement of government officials working on this subject in the various regions of the OSCE. Our Conference benefits from a unique combination of academic acumen and practical insight. We need to tap into this broad human experience available here today and discuss how the Recommendations can become a living document. How can we make sure that they will assist representatives of States, national minorities and international organizations in dealing with these sensitive issues? The aims of the Recommendations, namely conflict prevention, protection and promotion of minority rights, maintenance of inter-ethnic harmony within States and the strengthening of friendly relations between States, are ambitious. But I clearly believe that in our time and age we should strive for nothing less.

*Presentation by Knut Vollebaek at the North South Forum 2008 Dialogue and Development: Bringing Communities Together Mr. Mayor, Ladies and Gentlemen, It is a great pleasure and honour for me to be invited to address such an impressive gathering of people involved in promoting contacts between North and South, and as such directly involved in bringing people and communities together. Just the fact that many of you have travelled all the way to Norway is in itself bridging a gap and helping to create a dialogue. The distances between us have been reduced, both literally and metaphorically. Increased global interaction driven by the revolution in transport

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and communications brings us closer to one another. Migration and population shifts make our societies more diverse. Indeed, the concept of neighbourhood has undergone a profound change. As Amartya Sen pointed out not so long ago, the general acceptance of the maxim to “Love thy neighbour” probably emerged when the neighbours led more or less the same kind of life. But the same appeal today to love one’s neighbours requires people to take an interest in the very diverse living styles of others in close proximity to them. I often speak about the need to bring communities together. The rationale for this is that socializing and working with each other puts us on the same side of the fence. In this sense, Fredskorpset is doing an outstanding job of breaking stereotypes and showing to us all that diversity is culturally and intellectually enriching. We still have a long way to go though, in Western Europe and in the rest of the world. Just look at what has happened in the Balkans since the early 1990’s and more recently in the Caucasus, where old neighbours suddenly – or perhaps not so suddenly – have become enemies. Ladies and Gentlemen, The topic of our forum today is dialogue and development. From the perspective of the OSCE High Commissioner on National Minorities, these are two deeply interconnected themes. In my remarks here today, I will try to present the case for dialogue and the prevention of ethnic conflict. At the same time, I will argue that equitable socio-economic development is one of the keys to inter-ethnic harmony. Inter-ethnic conflict is a major source of violence in today’s world. It causes enormous human and material losses. It gives rise to immense costs for postconflict peace-building. Some 16 million lives have been lost as a result of ethnic strife since 1945 – far more than in wars between States. According to Oxfam, since the end of the Cold War conflicts in Africa alone have cost the continent $300bn. Figures, however, fail to reflect the damage inflicted upon the foundation of societies that will continue to haunt them for generations. Dealing with the consequences of these conflicts usually requires tremendous efforts to achieve any kind of reconciliation. By the time violence breaks out, a conflict has developed its own dynamics and brings enormous costs and devastation for the local population. The chances for successful diplomatic engagement are then substantially reduced, leaving the international community to resort to other means of intervention usually costly and where the outcome is uncertain. My mandate is intended to stop ethnic conflicts before they break out. Unfortunately, I often see too little effort and political will invested in prevention activities. An example sometimes used is the medical expenditure in the OECD countries, where 95 per cent of the medical budget goes to curing diseases and only 5 per cent to prevention. This applies to my field of conflict

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prevention as well. Only when there is a “CNN-moment”, like the recent conflict in the Caucasus, do world leaders shift their focus from other important tasks and mobilize a whole range of activities to stop the conflict. This is a very costly exercise indeed, and could have been avoided if more money and political will had been expended on preventive action. The logic of such preventive diplomacy is simple. Timely and effective action can help to avert a costly crisis. We should act with foresight and make the necessary investments when it comes to preventing conflicts. More often than not the warning signs are there. The problem is to act on them – in time. After all, “an ounce of prevention is worth a pound of cure”, or as we say in Norway: “Bedre føre var enn etter snar” (“Better safe than sorry.”) The failure to effectively manage inter-ethnic relations can create a ripe environment for tensions within States to take hold. Such tensions ultimately weaken a country’s stability and harm international co-operation. Efforts to build ethnically homogeneous “nation-states” have proved to be destructive because the nation-state borders almost never determine the living space of just one ethnic group. In Africa there are some 50 States and around 1,000 ethnic groups. Ethnic strife all over the world has ruptured the very fabric of societies and also severely compromised international security and relations between States. The devastating consequences we experienced in the former Soviet Union and Yugoslavia made it vital that new and innovative ways be found to prevent ethnic conflict in today’s Europe. This was exactly the rationale behind the decision of the then CSCE to create the position of the High Commissioner on National Minorities (HCNM) in 1992. The mandate of the High Commissioner establishes the HCNM as an instrument for conflict prevention within what is now the OSCE. The OSCE consists of 56 participating States stretching from Vancouver to Vladivostok. My watchword as High Commissioner is “early”. My task is to provide “early warning” and as appropriate “early action” at the earliest possible stage in regard to tensions involving national minority issues; the most important criterion being that these tensions have not yet developed beyond an early warning stage but have the potential to develop into a conflict within the OSCE area, affecting peace, stability or relations between participating States. I am convinced that other regions of the world could benefit from a similar institution. I strive to prevent inter-ethnic conflict through diplomacy and tensionreducing projects involving majority and minorities. My message to all parties is that living together in harmony is not an abstract concept but an integral part of our daily lives and activities. This often requires perseverance, tact and creativity on everybody’s part, but the reward is peace, which is much sweeter than the spoils of war.

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The practical philosophy I use to achieve this end is the integration of different ethnic communities within the State. We should be clear, however, that integration does not mean the assimilation of minorities, in the same way as it does not imply the minorities’ separation from society at large. Rather, I try to find the middle ground, integration with respect for diversity. As High Commissioner, I strive to identify the best ways to accommodate the legitimate concerns of majorities and minorities, seeking the means by which they can build the national society together in such a way that the state is the common home for them all, where none are treated as second-class citizens. Integration involves a balance of rights and responsibilities on both sides. On the one hand, the State respects the right of the minorities to maintain their identity, for example by facilitating education and broadcasting in the language of the minority and by encouraging their participation in public life. On the other hand, members of the minority give their allegiance to the State, pursue their objectives by means of their participation in the public life of the State and refrain from challenging the territorial integrity of the State. The exact nature of the measures that constitute integration will vary from society to society and a different balance will be appropriate in each case. Nonetheless, some form of integration, avoiding the extremes of forced assimilation on the one hand and separatism on the other, is likely to be the best way to promote social cohesion and reduce the risk of conflict. In order to promote integration and reduce risks of tensions the HCNM has, over the years, engaged experts to produce written guidance on key areas such as education, language, political participation, minority language broadcasting and policing. I draw on these guidelines in formulating my advice to the parties concerned in a particular case. The issues dealt with in the sets of recommendations are usually the core concern of persons belonging to national minorities and require the particular attention of governments as well as their resources. By addressing these matters, we move words to deeds in terms of concrete conflict prevention. Ladies and Gentlemen, Our forum today benefits from the participation of one of the most outstanding economists and practitioners of our time, Muhammad Yunus. Dr. Yunus, you famously said that “One day our grandchildren will go to museums to see what poverty was like.” The title of your address here today indicates that you continue to believe this is possible. I hope that the same will prove to be the case with regard to inter-ethnic violence. In fact, the two are mutually dependent – development is a crucial facilitating factor for peace, while peace is the necessary condition for development.

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Needless to say, the socio-economic situation of minority groups often overlaps with my conflict prevention mandate. Where economically deprived groups and ethnic or other minority groups become one and the same, conflict potential is sure to be found. Disparity in economic status and opportunities, actual or perceived, between different groups can lead to inter-ethnic tensions that may result in violent conflict. When minorities feel peripheral to the economic establishment and marginalized in the political process – and ascribe their position at the bottom of the economic hierarchy to their ethnic group identity – the ground is laid for the mobilization of collective action against the, usually majority-dominated, state system. Few people put it better than James Wolfensohn, former President of the World Bank, who remarked once that “if one had hope, one would be less likely to go out and shoot somebody.” So, how do we give people hope? How can we create a socio-economic environment that does not feed tension? I will briefly focus on the role of three actors: the state, the business sector and international organizations. First, the state bears ultimate responsibility for ensuring the protection of the economic rights of all within their jurisdiction and for developing social and economic policies that benefit everyone. The most basic and important principle to be applied by States faced with the economic marginalization of minorities is the strict application of non-discriminatory measures. Particularly important is access to jobs and the professions, including the civil service, and participation in commercial activities, including access to capital, land and property. Special measures may be required to make it possible for minorities to achieve the same level of enjoyment of economic opportunities as others within the State. Language training and access to university education immediately spring to mind. Such positive measures may be unpopular with the wider population, but States should bear in mind that investment in longterm security is a pre-condition for economic development of the State as a whole. States can also address economic inequalities between groups from a regional perspective given that national minorities frequently inhabit border regions far from capitals and centres of economic growth. These are often underdeveloped in comparison with other areas within the State. Uneven development in urban areas and rural regions can pose serious challenges in terms of generating equal opportunities. In this respect, governments need to develop measures limiting the effects of structural differences and undertake active measures to address economic exclusion of minorities, especially in economically depressed regions. A prime example of how regional development can alleviate human insecurity is the collaborative work of the Georgian Government and the international community, including my office, in the remote, Armenian-speaking region of Samtskhe-Javakheti.

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When it comes to the role of business, the challenge is to find ways to ensure that the allocation of the vast sums of money available from the private sector, takes account of minority issues and does not increase tensions. Let us make no mistake: companies are primarily focused on profit making and tend to react to short-term business opportunities. Therefore their support for conflict prevention can probably be best encouraged through an approach of “enlightened self-interest,” for example, through self-regulation, codes of conduct, etc. The first step is to convince private investors that long-term conflict prevention is good for business; the second is to provide them with the tools, including an understanding of minority problems, to ensure that their activities contribute to the creation of conditions for investment in the long-term. Good inter-ethnic relations, especially respect for the rights of minorities, within a country is simply good business policy. It would be a potentially powerful incentive for States to improve their record too. A number of bodies are already working to encourage the private sector to engage more responsibly and help solve local problems, including the threat of violent conflict. There are two interlinked strands to this work. First, the growing sense of corporate social responsibility and second, the recognition of the important connection between business and conflict prevention through the UN Global Compact. In practice, some companies already do incorporate a conflict prevention-awareness element in their activities, including undertaking conflict impact assessments. Finally, I am convinced that self-reflection on the part of international organizations working in the field of development is needed. There are some very good examples of internal “do-noharm” guidelines developed by my colleagues at the World Bank and UNDP. Be it textbook development projects or dam construction, any internationally funded undertaking should be scrutinized in terms of its impact on majority-minority relations. In this respect, consultations with the affected communities are a pivotal mechanism for addressing dissatisfaction or possible grievances. Ladies and Gentleman, I opened my remarks today by praising the organizers, Fredskorpset. I stand by this, but must add that the success of their mission largely depends on us. It is wonderful to be part of such a gathering. However, we must all return to our own countries and local communities to cultivate the culture of dialogue on our home turf and in our relations both nationally and internationally. It is up to us to break the stereotypes, to rebuild bridges and to bring communities together. Let us help each other in achieving this goal, which is not a question of altruism, but of justice and survival.

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*Opening Address by Knut Vollebaek to the Conference on Linguistic Rights of National Minorities: Ten Years after the Oslo Recommendations and Beyond: Linguistic Rights in the work of the HCNM: New and Old Challenges in Promoting Comprehensive Security Mr. Chairman, Ladies and Gentlemen, Dear friends, Welcome to Norway, to Oslo and to this conference on the occasion of the 10th anniversary of the Oslo Recommendations on Linguistic Rights of National Minorities. It is great to see you all here. I take this crowded room as a sign that many of you have found the Recommendations, launched ten years ago, to be useful and that you are interested in discussing how they can also serve the purpose of integration in the years to come. Yesterday Norway celebrated the 200th anniversary of the birth of Henrik Wergeland, a theologian, poet and political activist, who during the first half of the 19th century actively used his language skills to fight for greater tolerance and integration in Norwegian society. He was particularly concerned about the discrimination against Jews in Norway’s Constitution of 1814, and fought to have the Constitution amended in order that Jews might settle in Norway. His efforts were crowned with success. There are many forms of discrimination and likewise, fortunately, many tools that can be used to promote integration. Language can serve both a negative and a positive purpose. I could have chosen to welcome you and to deliver my speech in Norwegian. I would have been able to express myself better than I do in English. But since most of you would not have understood me, my message would not have reached you would have felt excluded rather than included. You would have rightly questioned my judgment, maybe even my mental state. Nevertheless, my ability to use Norwegian is important for me because I can express myself with more sophistication and with more nuances than in any other language. My language is no doubt part of my identity. To have a home, a place, where I am understood in my mother tongue is essential for me. At the same time it is equally essential that I somehow master English since my working environment is English-speaking. Many people find themselves in the same dualistic situation without having chosen to work abroad

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like myself. New borders have been drawn because of wars and new countries have emerged as a result of the collapse of old ones, and numerous people find themselves faced with new linguistic challenges, in addition to many others. Linguistic management is a complex business. I visited Bolzano/Bozen yesterday, which is a perfect example of this and a successful one too. While linguistic management is not taught in business schools, policy makers are expected to navigate a myriad of language-related legal instruments and political commitments that have emerged during recent decades. Ten years ago the life of governments became somewhat easier when the Oslo Recommendations regarding the Linguistic Rights of National Minorities came into being. Today, however, I am pleased to be celebrating here in Oslo not only the first ten years of this important document but also, and perhaps even more importantly, to be inviting you to discuss its next ten years. I would like to thank the Norwegian Institute of Human Rights for coorganizing this event, which hopefully will contribute to the debate on how we can deal better with languages in our societies in such a way that both ethnic majorities and minorities feel secure and respected. The Norwegian Ministry of Foreign Affairs too deserves our gratitude for supporting this conference financially and thus for making this important debate possible. Linguistic rights are the quintessence of minority rights. We all know that human rights, including minority rights, are universal, indivisible and interconnected. If, however, one had to single out just one minority right, it would have to be the right to use one’s own language. This right is, indeed, not only the fundamental right to express and further develop one’s personal identity, but it is also the precondition for the proper enjoyment of other minority rights. Minority rights are intimately linked to the respect for and the development of any culture. And language is one of the most important vehicles through which most cultures are expressed. This is why the protection of the linguistic rights of persons belonging to national minorities is a necessary precondition for the creation of an integrated society, respectful of diversity and – ultimately – also a precondition for peace and stability. The prevention of inter-ethnic conflicts goes hand in hand with the establishment of an adequate system of protection for linguistic rights. This is easily said, but not easily done, as linguistic rights – perhaps even more so than other minority rights – are used by political entrepreneurs to incite extreme nationalism, among the majority as well as among minorities. As the famous Yiddish linguist Max Weinrich pointed out, “A shprakhiz a dialect mit an armey un flot.” (A language is a dialect with an army and a navy). My work does not consist of defining what a language is and what it is not; rather, I intervene

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when the rules on the use of language become contentious and detrimental to overall, peaceful societal integration. It is important to urge both majority and minority communities not to approach language issues in “zero-sum” terms, whereby one language is promoted at the expense of others. Such thinking is harmful not just to minorities but also to majorities. Governments can win the trust and support of minorities only by respecting linguistic diversity. At the same time, if minorities want to be successful in the society in which they live, it is in their best interests to learn the State or official language (or languages) properly. This ultimately contributes to the cultural and economic enrichment of the society and prevents minority separation and alienation. In the field of linguistic rights, state authorities and minorities have to understand and respect their mutual positions, something which is at times difficult to reconcile. It has to be recognized that language can be an essential tool for social organization but also a source of potential tensions. Policies to promote the use of the State language need to be guided by the “do no harm” principle and should not disproportionally restrict the use of minority languages. Not least, all involved parties should acknowledge that effective linguistic policies, respectful of the rights of persons belonging to national minorities, can not be set in stone and are not for ever; they must be continually reviewed and adapted in order to maintain the right balance. In other words, time and patience are ingredients for success. Ten years ago it became clear that guidelines were needed in this sensitive field. The first High Commissioner, Minister Max van der Stoel, sought the views of a group of international experts on an appropriate and coherent application of the linguistic rights of persons belonging to national minorities in the OSCE region. I am glad to see some of these experts here today. The resulting Recommendations, launched in Oslo ten years ago, have become a fundamental tool in my daily work in addressing ethnic conflicts in the OSCE area. When discussing linguistic issues with governments and minority representatives, it is helpful not only to rely on the principles and standards of international law but also to be able to refer to more specific guidelines, anchored in these principles, which go one step further and provide examples of best comparative practices. The OSCE is a political organization based on consensus. This makes our task more challenging and sometimes more complex, compared to other international organizations. When it comes to the prevention of conflicts through the accommodation of cultural differences, however, the “soft” nature of my Institution has many positive aspects. By its very nature, the accommodation of differences is always a work in progress. Society and the internal dynamics of the respective groups within society are in a state of flux, therefore solutions and instruments need to be

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continually rebalanced, adapted and reconsidered. This makes “one-size-fitsall” and “once and for all” solutions virtually impossible and even counterproductive, as each case is different. In conflict prevention, soft law can be more efficient than prescriptive norms. This is why, as a general rule, soft law instruments play an increasingly important role in today’s world. When a majority demands mindless obedience and submission from a minority, this is usually regarded as subjugation and increases the chances of that majority not being respected. Therefore the more pluralistic a society, the greater the need for tolerance and persuasion instead of suppression and coercion. These “mild” laws reflecting a pluralist attitude protect fundamental and individual rights, and at the same time facilitate procedures that lead to negotiated choices, choices that are not predetermined or imposed, but made in full autonomy. This is why soft law instruments such as the Oslo Recommendations are particularly helpful in my daily work. They give further substance to the provisions of international law in which they are grounded, facilitating the implementation of international commitments. As one of the main drafters of the Oslo Recommendations, Professor Asbjørn Eide once wrote that the objective of the Recommendations is to “make it possible to find the appropriate balance between the legitimate concerns of the State and the majority on the one hand and the concerns and requirements of the minority on the other”1. Achieving such a balance within the OSCE family is a formidable task indeed. However, the principles and approaches enshrined in the Oslo Recommendations make this undertaking somewhat easier. I hope that our conference will both highlight how the Recommendations have already helped tackle linguistic challenges and how we can address the challenges ahead of us. With this hope, let me again welcome you and wish us all success in our deliberations.

*Recommendations on Policing in Multi-Ethnic Societies: February 2006 Introduction In its Helsinki Decisions of July 1992, the Organization for Security and Co-operation in Europe (OSCE) established the position of High Commissioner on National Minorities (HCNM) to be “an instrument of conflict prevention at the earliest possible stage”. This mandate was created largely in

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reaction to the situation in the former Yugoslavia which some feared would be repeated elsewhere in Europe, especially among the countries in transition to democracy, and could undermine the promise of peace and prosperity as envisaged in the Charter of Paris for a New Europe adopted by the Heads of State and Government in November 1990. Through the course of more than ten years of intense activity, the HCNM has identified certain recurrent issues and themes concerning minorities which have become the subject of his attention in a number of States in which he is involved. Among these are the issues of minority education and the use of minority languages, which are of particular importance for the maintenance and development of the identity of persons belonging to national minorities. Other important issues are the effective participation of national minorities in the governance of States and the use of minority languages as a vehicle of communication in the broadcast media. With a view to achieving an appropriate and coherent application of relevant minority rights in the OSCE area, the HCNM requested four groups of internationally recognized independent experts to elaborate four sets of guidance on these recurrent issues: The Hague Recommendations regarding the Education Rights of National Minorities (1996); the Oslo Recommendations regarding the Linguistic Rights of National Minorities (1998); the Lund Recommendations on the Effective Participation of National Minorities in Public Life (1999); and the Guidelines on the Use of Minority Languages in the Broadcast Media (2003). These documents have subsequently served as references for law and policy makers in a number of States. The recommendations are available (in several languages) free of charge from the Office of the HCNM and may be accessed electronically (www.osce.org/hcnm). Another issue which has arisen in several situations in which the HCNM has been involved is that of policing in multi-ethnic societies. In a number of States, the HCNM has encountered the absence of institutional mechanisms to support the interaction and co-operation between police and persons belonging to national minorities. In combination with the lack of appropriate training for operation in a multi-ethnic society, an often mono-ethnic composition of the police service and discriminatory practices, police have generated negative reactions among national minority communities in a number of situations and even become a conflict catalyst. In contrast, the HCNM has seen in other States how efforts to make the police service more representative of the community it serves and to enhance communication between police and national minority communities not only strengthened inter-ethnic relations but also increased the operational effectiveness of police. Reflecting this important role of the police, the HCNM engaged in a process of analysis of international standards and practices in the area of policing.

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To this end, the HCNM, in consultation with the Strategic Police Matters Unit in the OSCE Secretariat, appointed a consultant (Dr Robin Oakley, independent consultant and Honorary Research Fellow at the Centre for Ethnic Minority Studies, Royal Holloway – University of London) to advise him and brought together a group of highly experienced experts comprising representatives of relevant international organizations along with senior police officers, independent experts and non-governmental actors with particular expertise in the field. An initial meeting of the experts was convened by the HCNM in June 2005, followed by a meeting in October and a concluding meeting in December. As a result of this process, the following set of recommendations on policing in multi-ethnic societies was elaborated. … The purpose of the accompanying Recommendations like The Hague, Oslo, Lund Recommendations and the Media Guidelines before them, is to encourage and facilitate the adoption by States of specific measures to alleviate tensions relating to national minorities and thus to serve the ultimate conflict prevention goal of the HCNM. The Recommendations are formulated in terms of the policing of ‘national minorities’ in ‘multi-ethnic societies’. In the view of the experts, the term ‘national minorities’ encompasses a wide range of minority groups, including religious, linguistic and cultural as well as ethnic minorities. In principle, the Recommendations are relevant for all of those groups. Similarly, it should be noted that the word ‘minorities’ is used at some points in the Recommendations as a convenient abbreviation for the phrase ‘persons belonging to national minorities’. The Recommendations aim to provide States with some practical guidance in developing policies and law in accordance with international norms and standards, and based on international experience and best practice which can balance and meet the needs and interests of all sectors of the population, including those of persons belonging to national minorities. Obviously the Recommendations need to be implemented in a way which is sensitive to the specific situation in each State – including such factors as the ongoing police reform process and the actual situation on the ground. The Recommendations are divided into six sub-headings which group the twenty-three individual recommendations under general principles; recruitment and representation; training and professional support; engaging with ethnic communities; operational practices; and the prevention and management of conflict. All guidelines are to be interpreted in accordance with the General Principles in Part I which also establish the need for States to develop policy and law in this area and provide guidance in this respect. In Part II through Part VI some specific points of action are suggested to the

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governments, police services and national minority communities. A more detailed explanation of each recommendation or guideline is provided in an accompanying Explanatory Note wherein express reference to the relevant international standards is found and examples of good practice are elaborated. The central message of the Recommendations is that good policing in multiethnic societies is dependent on the establishment of a relationship of trust and confidence, built on regular communication and practical co-operation, between the police and the minorities. All parties benefit from such a relationship. The minorities benefit from policing which is more sensitive to their concerns and more responsive to their requirements for personal protection and access to justice. The police benefit from greater effectiveness, since good communication and co-operation are keys to effective policing in any community. The state benefits both from the integration of minorities and from the greater effectiveness of its policing. For States seeking to integrate minorities, and at the same time develop professional service-oriented community policing, the Recommendations provide a practical way forward. It is hoped that the Recommendations will be broadly disseminated and widely used. …

Explanatory Note to the Recommendations on National Minorities in Inter-State Relations I. General principles 1. Sovereignty comprises the jurisdiction of the State over its territory and population, and is constrained only by the limits established by international law. No State may exercise jurisdiction over the population or part of the population of another State within the territory of that State without its consent. The principle of State sovereignty is a cornerstone of international law, as codified in Articles 1 and 2 of the Charter of the United Nations (hereinafter: “UN Charter”) and reaffirmed in several other international documents. These include the 1975 CSCE Helsinki Final Act (Principle IV), the 1990 Charter of Paris for a New Europe, and, in particular with regard to national minorities, the 1990 CSCE Document of the Copenhagen Meeting on the Human Dimension (hereinafter: “Copenhagen Document”) (paragraph 37), the 1995 Framework Convention for the Protection of National Minorities of the

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Council of Europe (hereinafter: “FCNM”) (Preamble and Article 21), the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (hereinafter: “UN Declaration on Minorities”) (Article 8 (4) ), and the 1994 EU Concluding Document of the Inaugural Conference for a Pact on Stability in Europe (hereinafter: “Stability Pact”) (paragraph 1.6). International law provides for extraterritorial jurisdiction for specific cases and in certain situations, but in a restricted form. 2. Sovereignty also implies the obligation of the State to respect and to ensure the protection of human rights and fundamental freedoms of all persons within its territory and subject to its jurisdiction, including the rights and freedoms of persons belonging to national minorities. The respect for and protection of minority rights is primarily the responsibility of the State where the minority resides. Since the Second World War, a legal regime has been developed following the principle that protection of human rights and fundamental freedoms, including those of persons belonging to national minorities, is the responsibility of the State that has jurisdiction over the persons concerned. Under international law, therefore, States are obliged to secure to everyone within their jurisdiction the enjoyment of human rights and freedoms, including minority rights. This responsibility to protect is included in, among others, the Helsinki Final Act (Principle VII, para. 4), the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: “ECHR”) (Article 1), and with regard to national minorities in particular, in the 1966 UN International Covenant on Civil and Political Rights (hereinafter: “ICCPR”) (Article 27), the UN Declaration on Minorities (Article 1(1) ), the CSCE Copenhagen Document (paragraphs 33(1) and 36(2) ) and the FCNM (Article 1). Consequently, the protection of minority rights is primarily but not exclusively the responsibility of the State where the minority resides: it is also a matter of legitimate concern for the international community, as further elaborated in Recommendation 3 below. The preservation of peace and stability requires that persons belonging to minorities are treated and protected in an integrated way to the extent that their special status and situation allows this. The fundamental link between protection and promotion of minority rights and the maintenance of peace and stability has been emphasized a number of times by the OSCE participating States, beginning with Principle VII of the Decalogue of the Helsinki Final Act. This link has been reiterated in subsequent documents such as the 1983 Concluding Document of Madrid (Principle 15), the 1989 Concluding Document of Vienna (Principles 18 and 19) and the 1990 Charter of Paris for a New Europe, as well as in the

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OSCE’s Summit Documents, including the 1990 Copenhagen Document (Part IV, paragraph 30), the 1992 Helsinki Document (Part IV, paragraph 24) and the 1996 Lisbon Document (Part I, Lisbon Declaration on a Common and Comprehensive Security Model for Europe for the Twenty-First Century, paragraph 2). A more specific link is established, inter alia, in the preamble to the 1992 UN Declaration on Minorities, in the preamble of the FCNM and in the Final Declaration of the 1993 OSCE Vienna Summit. Protection of minority rights by the State in which minorities reside is, therefore, not only one of the cornerstones of international law but also a precondition for peace, security and democratic governance, especially in multi-ethnic States. 3. The protection of human rights, including minority rights, is also a matter of legitimate concern to the international community. States should address their concerns for persons or situations within other States through international co-operation and the conduct of friendly relations. This includes the full support by States of international human rights standards and their agreed international monitoring mechanisms. While the protection of human rights, including minority rights, is primarily the responsibility of the State where the minority resides, it is also a matter of legitimate international concern. This has been emphasized, inter alia, by the OSCE participating States in the 1991 Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE, as respect for these rights and freedoms constitutes one of the foundations of international legal order. With regard to minority rights in particular, this has been underlined in Section II, paragraph 3 of the 1991 “Report of the CSCE Meeting of Experts on National Minorities in Geneva”, which states that “issues concerning minorities, as well as compliance with international obligations and commitments concerning the rights of persons belonging to them, are matters of legitimate international concern and consequently do not constitute exclusively an internal affair of the respective State”. As the protection of human rights, including minority rights, falls within the scope of international co-operation, the concerns of States for people or situations within other States must be expressed within the framework of the basic principles of international law, including the conduct of friendly relations. While pursuing bilateral agreements, States should ensure that these do not undermine or contradict international standards set out in multilateral instruments. This issue is elaborated in Section IV of these Recommendations. States should co-operate on questions relating to persons belonging to minorities, inter alia, by exchanging information and experiences, including for example through joint commissions, in order to promote mutual understanding

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and confidence. The procedural principles of good neighbourliness, friendly relations and international co-operation are stated in, inter alia, the UN Charter (Article 1(2) ), the 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations and the CSCE Charter of Paris for a New Europe. These principles, in particular regarding minorities, are reaffirmed in the UN Declaration on Minorities (Articles 6 and 7), in the CSCE Copenhagen Document (paragraph 36(1) ), in the FCNM (Articles 1, 2 and 18) and in the Stability Pact (paragraph 1(5) ). In the context of international responsibility to respect and protect human rights, including minority rights, States are obliged to fulfill their reporting obligations to international supervisory bodies and to ensure that the rights of communication to international courts and tribunals are observed. Supervisory and advisory bodies play an important role in promoting transparency, understanding and goodwill, and ensure that international legal norms are upheld; States should support, develop and fully participate in these mechanisms. 4. A State may have an interest – even a constitutionally declared responsibility – to support persons belonging to national minorities residing in other States based on ethnic, cultural, linguistic, religious, historical or any other ties. However, this does not imply, in any way, a right under international law to exercise jurisdiction over these persons on the territory of another State without that State’s consent. This principle points to the distinction between rights and interests, as well as between international and domestic law. A State may have an interest in supporting persons living abroad sharing ethnic, cultural, linguistic, religious, historical or other characteristics with its majority population and this may even be enshrined in its constitution. This interest, however, even if laid down in domestic law, does not imply, in any way, a right under international law to exercise jurisdiction over these persons. A State cannot exercise its powers, in any form, on the territory of other States without the consent of those States. International law only provides for strictly defined exceptions to this rule, such as the exercise of jurisdiction related to States’ embassies, ships or citizens abroad. As a rule, a State may provide consular protection to its citizens abroad only after consultation and agreement with the State of residence or sojourn, with the exception of the most urgent humanitarian circumstances when such consultation is not possible or stands in the way of effective protection. This requirement of previous consultation applies a fortiori if the person abroad is

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not a citizen of the intervening State. The fact that the State considers a person abroad to be one of its “kin”, does not justify any unilateral intervention on that person’s behalf.

II. State obligations regarding persons belonging to national minorities 5. States should guarantee the right of everyone, including persons belonging to national minorities, to equality before the law and to equal protection under the law. In this respect, discrimination based on belonging to a national minority or related grounds is prohibited. Achieving substantive equality may require special measures and such measures should not be regarded as being discriminatory. The principles of non-discrimination and equality are expressed in virtually all international human rights instruments, including notably the 1948 Universal Declaration of Human Rights (Article 2 and 7), the ICCPR (Articles 2, 26 and 27) and the 1966 International Covenant on Economic, Social and Cultural Rights (Article 2). Article 1 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination makes clear that this instrument also prohibits discrimination on the basis of “descent, or national or ethnic origin”. Article 14 of the ECHR also expressly extends the principle of non-discrimination to cover grounds of “national or social origin, [or] association with a national minority” and Protocol 12 additional to the ECHR establishes a general clause against discrimination. In more recent times, the principle of non-discrimination on grounds of, inter alia, national and ethnic origin has been codified by the European Union in the 1997 Amsterdam Treaty (Article 13 TEU), the 2000 Charter of Fundamental Rights of the European Union (Article 22) and the Directives 2000/43/EC and 2000/78/EC. The OSCE has also included the principles of non-discrimination and equality in the Helsinki Final Act (Principle VII), in the 1989 Concluding Document of Vienna (paragraphs 13.7 and 13.8) and in the Copenhagen Document (paragraphs 5.9, 25.3 and 25.4). With regard to minorities in particular, the enjoyment of minority rights without discrimination is contained in the UN Declaration on Minorities (Article 2.1) and in the CSCE Copenhagen Document (paragraph 31). Not least, most OSCE participating States incorporate these principles and standards in their constitutions. The FCNM (Article 4) specifically prohibits discrimination based on belonging to a minority in paragraph 1. Paragraph 2 also specifies that additional and adequate measures may be required to promote the full and effective equality between persons belonging to minorities and those belonging to

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the majority. Such measures need to be in conformity with the proportionality principle in order not to be considered discriminatory. This issue is further elaborated in Recommendation 10. 6. States should respect and promote the rights of persons belonging to national minorities, including the right freely to express, preserve and develop their cultural, linguistic or religious identity free from any attempts at assimilation against their will. Lessons from the past have shown that respect for minority rights is essential for peace and stability within and between States. Persons belonging to minorities have the right to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage. This right can only be exercised if States abstain from any attempts to assimilate minorities against their will. International law affirms the obligation of States to promote the right of persons belonging to minorities to maintain their identity by providing adequate opportunities to develop their culture, to use their language, to practice their religion and to effectively participate in public affairs. This obligation is laid down in, inter alia, the ICCPR (Article 27), in the 1960 UNESCO Convention against Discrimination in Education (Article 5.1.c.), in the UN Declaration on Minorities (Articles 1, 2(2) and 2(3) ), in the CSCE Copenhagen Document (paragraphs 33 and 35) and in the FCNM (Articles 5(1), 8 and 10–15). Specific recommendations and guidelines on the effective implementation of these rights have been published by the HCNM, including in regard to education (The Hague Recommendations regarding the Education Rights of National Minorities, 1996), use of language (Oslo Recommendations regarding the Linguistic Rights of National Minorities, 1998) and effective participation in public life (Lund Recommendations on the Effective Participation of National Minorities in Public Life, 1999). 7. States should promote the integration of society and strengthen social cohesion. This implies that persons belonging to national minorities are given an effective voice at all levels of governance, especially with regard to, but not limited to, those matters which affect them. Integration can only be achieved if persons belonging to national minorities, in turn, participate in all aspects of public life and respect the rules and regulations of the country they reside in. Based on the experience of the HCNM, peace, stability, security and prosperity can only be achieved in societies promoting the integration of minorities

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while respecting their diversity. Integration with respect for diversity is not a matter of “either/or”, but a question of finding the appropriate balance, acknowledging the right of minorities to maintain and develop their own language, culture and identity and at the same time achieving an integrated society where every person in the State has the opportunity to take part in and influence the political, social and economic life of mainstream society. This principle is underpinned, inter alia, by the FCNM (Articles 5 and 6). A well-integrated society in which all participate and interact is in the interest of both States and minorities. It is the result of a continuous and democratic process that contributes to good governance and requires commitment from both sides. Separation between communities and groups is not usually a good basis on which to build a well-functioning society with good prospects of future stability. Integration involves interaction, not just tolerating a plurality of cultures. 8. States should not unduly restrict the right of persons belonging to national minorities to establish and maintain unimpeded and peaceful contacts across frontiers with persons lawfully residing in other States, in particular those with whom they share a national or ethnic, cultural, linguistic or religious identity, or a common cultural heritage. Establishing and maintaining unimpeded and peaceful contacts across frontiers with people lawfully residing in other States, with whom they share a common national or ethnic origin, a cultural heritage or a religious belief, is a fundamental right of persons belonging to minorities. This fundamental minority right is stipulated in the UN Declaration on Minorities (Article 2(5) ), in the CSCE Copenhagen Document (paragraph 32 (4) ), and in the FCNM (Article 17 (1) ). This Recommendation therefore concerns an individual right and States should refrain from interfering with it except in situations where there is a substantiated overriding security risk. Multilateral and bilateral instruments and mechanisms for transfrontier co-operation among States are dealt with in Section IV of the Recommendations.

III. Benefits accorded by states to persons belonging to national minorities abroad 9. States may extend benefits to persons residing abroad, taking into account the aforementioned principles. Such benefits may include, inter alia, cultural and educational opportunities, travel benefits, work permits and facilitated access to visas. They should be granted on a non-discriminatory basis. The State of residence should not obstruct

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the receipt or enjoyment of such benefits, which are consistent with international law and the principles underlying these Recommendations. States may have an interest in supporting persons residing abroad, including by according benefits to them. According to the 2001 “Report on the Preferential Treatment of Minorities by their Kin-State” adopted by the European Commission for Democracy Through Law (hereinafter: “Venice Commission Report” – CDLINF (2001) 19), the possibility for States to adopt unilateral measures on the protection of “kin-minorities”, irrespective of whether they live in neighbouring or in other countries, is conditional on respect for the following principles: a) the territorial sovereignty of States; b) pacta sunt servanda; c) friendly relations amongst States, and d) the respect of human rights and fundamental freedoms, in particular the prohibition of discrimination. The mere fact that the beneficiaries of this kind of support are foreigners does not constitute an infringement of the principle of territorial sovereignty of other States. The same report acknowledges that a State can legitimately issue laws or regulations concerning citizens of other countries without seeking the prior consent of the State in which they reside, as long as the effects of these laws or regulations are to take place within its own borders only. For example, a State can unilaterally decide to grant a certain number of scholarships to meritorious foreign students who wish to pursue their studies in the universities of that State. However, when a law is specifically directed at foreigners residing in a foreign country and the effects of this law are to take place abroad, the State of residence of the individuals concerned should be consulted. In this regard, a distinction should be made between situations in which the consent of the State affected is implied, namely in the fields covered by treaties or international customs, and those in which consent should be explicit (Section D.a.i. of the Venice Commission Report). Peace, stability and friendly relations between States require that the State of residence does not obstruct the receipt or enjoyment of benefits as long as they comply with international law and standards. These provide that benefits should be non-discriminatory, i.e. they should pursue a legitimate aim and be proportionate. As set out in the Venice Commission Report, a legitimate aim can be the fostering of cultural links between the target population and the population of the “kin-State”. The promotion of educational or personal links could also constitute a legitimate aim. Benefits extended by States therefore may include cultural and educational opportunities, travel benefits, work permits, facilitated access to visas and acquisition of property.

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The enjoyment of such benefits is frequently made conditional on the possession of identity documents issued by the “kin-State”. These documents should only be a proof of entitlement to the services provided for under a specified law or regulation. They should not aim at establishing a political bond between its holder and the “kin-State” and should not substitute for an identity document issued by the authorities of the State of residence. To be non-discriminatory, preferential treatment must target and affect persons in the same circumstances equally. This requires that the impact of measures granting preferential benefits to certain foreigners is proportionate, i.e. the least limiting on the formal equal treatment of all persons belonging to the same category. For example, as pointed out in the Venice Commission report, differential treatment in granting benefits in education may be justified by the legitimate aim of fostering the cultural links of the targeted population with the population of the “kin-State”. In order to be acceptable, however, the benefits accorded must be genuinely linked with the culture of the “kin-State”, be open to all interested and qualified individuals, irrespective of their ethnic background and be proportionate. For instance, educational benefits provided on a non discriminatory basis such as linguistic proficiency can legitimately be used as a precondition for the enjoyment of such a benefit. 10. States should refrain from taking unilateral steps, including extending benefits to foreigners on the basis of ethnic, cultural, linguistic, religious or historical ties that have the intention or effect of undermining the principles of territorial integrity. States should not provide direct or indirect support for similar initiatives undertaken by non-State actors. Extending benefits to particular groups abroad that could fuel separatist tendencies and have a weakening or fragmenting effect in the States where the foreigners reside, violates the principles of sovereignty and friendly relations between States. Unilateral steps of this kind may include selective financing of foreign political parties based on ethnic, cultural, linguistic or religious ties, distribution of identity papers certifying ethnic origin, or granting citizenship en masse to citizens of another State, as further elaborated in Recommendation 11. Furthermore, international peace and security can be threatened by acts that undermine the societal integration and social cohesion of other States. Article 1 of the UN Charter underlines the importance of preventing and removing threats to peace. History shows that when States pursue unilateral policies – including those of a symbolic nature – on the basis of national kinship to protect minorities living outside of the jurisdiction of the State, this sometimes leads to tensions and frictions; even violent conflict.

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The same effect can be caused by initiatives with the same aim taken by non-State actors, including religious institutions, with direct or indirect support from State authorities. In addition, States should take preventive and remedial action against non-State actors within their borders who introduce measures or support initiatives in relation to minority groups abroad that incite violence or fuel separatist tendencies. This must be read in close connection with Recommendation 3, whichstresses the importance of international co-operation and the conduct of friendly relations in dealing with concerns about people or situations in other States. 11. States may take preferred linguistic competencies and cultural, historical or familial ties into account in their decision to grant citizenship to individuals abroad. States should, however, ensure that such a conferral of citizenship respects the principles of friendly, including good neighbourly, relations and territorial sovereignty, and should refrain from conferring citizenship en masse, even if dual citizenship is allowed by the State of residence. If a State does accept dual citizenship as part of its legal system, it should not discriminate against dual nationals. The conferral of citizenship is generally considered to fall under the exclusive domestic jurisdiction of each individual State and may be based on preferred linguistic competencies as well as on cultural, historical or familial ties. When this involves persons residing abroad, however, it can be a highly sensitive issue. Contested claims or competing attempts by the States concerned to exercise jurisdiction over their citizens, irrespective of the place of residence, have the potential to create tensions. This is particularly likely to happen when citizenship is conferred en masse, i.e. to a specified group of individuals or in substantial numbers relative to the size of the population of the State of residence or one of its territorial subdivisions. States should therefore refrain from granting citizenship without the existence of a genuine link between the State and the individual upon whom it is conferred, as ruled by the International Court of Justice in the Nottebohm Case (1955 I.C.J. 4). Even though States have the right to freely determine who their citizens are, they should not abuse this right by violating the principles of sovereignty and friendly, including good neighbourly, relations. Full consideration should be given to the consequences of bestowing citizenship on the mere basis of ethnic, national, linguistic, cultural or religious ties, especially if conferred on residents of a neighbouring State. It could for example lead to differential treatment for these individuals as compared with other residents of the “kinState” who may be denied access to citizenship. Article 5 of the 1965 UN Convention on the Elimination of All Forms of Racial Discrimination and

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Article 5 of the 1997 European Convention on Nationality provide that the rules of a State on citizenship must not contain distinctions or include any practice that constitutes discrimination on the grounds of, inter alia, national or ethnic origin. It should be noted in this regard that while States have limited jurisdiction over their citizens residing abroad, this should be exercised with respect for the principles of sovereignty and friendly, including good neighbourly, relations. Moreover, the State of residence holds primary responsibility for the protection of its residents, including persons belonging to minorities, even though they may hold multiple citizenship, and should not discriminate against dual citizens. To avoid conflict of loyalties, a State can legitimately ask its citizens to rescind other citizenships before taking up high political positions such as Head of State or a member of government. 12. States may offer assistance to support education abroad, for example, with regard to textbooks, language training, teacher training, scholarships and school facilities. Such support should be non-discriminatory, have the explicit or implied consent of the State of residence and be in line with applicable domestic and international educational standards. Culture does not stop at State borders. Assistance and support in educational matters abroad can contribute in a constructive way to the development and the promotion of linguistic and cultural pluralism. States may express their interest in specific linguistic, cultural or ethnic groups living abroad by assisting them with cultural initiatives. This could include for instance the provision of textbooks, language training, teacher training, scholarships and school premises and facilities, support for libraries, museums, the arts and the like. Such support should wherever possible be provided by involving the authorities of the State of residence. With regard to textbooks, States should ensure that all educational materials, including those provided by other States, correspond to their domestic and international educational standards and provide a balanced picture that respects commonly accepted values of tolerance and a plurality of views and cultures. The UN Convention against Discrimination in Education (Article 5) stipulates, on the one hand, that education shall promote understanding, tolerance and friendship among all nations, racial or religious groups. On the other hand, it acknowledges that persons belonging to minorities have the right to carry on their educational activities without prejudice to national sovereignty. The importance of international co-operation in the field of education is recognized, inter alia, in the Hague Recommendations Regarding the Education Rights of National Minorities (Recommendation nos. 1–3) and in the 1989

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UN Convention on the Rights of the Child (Article 28.3). The function of education to foster tolerance and intercultural understanding is acknowledged in the same Convention (Article 29.1 lit b-d / (b), (c), and (d) ). Following the principle of good relations, cultural and educational support to particular groups abroad should be provided with the explicit or implied consent of the State where the beneficiary group resides. According to the Venice Commission Report, when benefits provided by “kin-States” have an obvious cultural aim such as promoting the study of their national language and culture, consent of the State of residence can even be presumed. In this case, “kin-States” may take unilateral administrative or legislative measures that should not be unduly restricted by the State of residence, as long as their effect is compatible with the principles set out in Recommendation 10 and does not violate the principle of non-discrimination as set out in Recommendation 9. 13. States may provide support to cultural, religious or other nongovernmental organizations respecting the laws and with explicit or implied consent of the country in which they are registered or operating. However, States should refrain from financing political parties of an ethnic or religious character in a foreign country, as this may have destabilizing effects and undermine good inter-State relations. Support for civil society abroad can take many forms. In fields other than education and culture, the preferential treatment of minority groups residing in another State is more problematic and, as pointed out in the Venice Commission Report, should be considered to be the exception rather than the rule. Measures that have extraterritorial effects in fields other than cultural and educational support should only be undertaken with the explicit consent of the States in whose jurisdiction such effects would occur. As mentioned in Recommendation 10, support by a foreign State must not have destabilizing or fragmenting effects. Assistance to organizations abroad should be provided in the spirit of good neighbourliness and enhance regional co-operation without jeopardizing sovereignty or cohesion within multi-ethnic States. In this context support and financing of political parties and movements abroad with an ethnic or religious character should be discouraged, as this has an impact on the domestic political processes and often contributes to excessive politicization of minority issues to the detriment of societal integration and good inter-State relations. 14. The free reception of transfrontier broadcasts, whether direct or by means of retransmission or rebroadcasting, may not be prohibited on

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the basis of ethnicity, culture, language or religion. Limitations are restricted to broadcasts that use hate speech or incite violence, racism or discrimination. States should not obstruct the free reception of transfrontier broadcasting. This would be an encroachment on freedom of expression, as guaranteed by international human rights instruments and, with regard to transfrontier television in particular, by Article 4 of the 1989 European Convention on Transfrontier Television (hereinafter: ECTT). Recommendation 13 of the Guidelines on the use of Minority Languages in the Broadcast Media (hereinafter: Media Guidelines) underlines that the free reception of transfrontier broadcasts “shall not be prohibited on the basis of language”. In addition, Article 9 (1) of the FCNM states that freedom of expression includes freedom to hold opinions and to receive and impart information and ideas in the minority language, without interference by public authorities and regardless of frontiers. States should, therefore, ensure that persons belonging to national minorities are not discriminated against in their access to domestic and foreign media. Moreover, Article 11(2) of the 1992 European Charter for Regional or Minority Languages, while permitting regulation, states that “[t]he Parties undertake to guarantee freedom of direct reception of radio and television broadcasts from neighbouring countries in a language used in identical or similar form to a regional or minority language, and not to oppose the retransmission of radio and television broadcasts from neighbouring countries in such a language”. The States where minorities reside can impose limitations on foreign print, broadcast and other, including new, media that advocate national, racial or religious hatred that constitute incitement to discrimination, racism, violence and hostility or use hate speech. Article 20 of the ICCPR is express in this regard (including prohibition of any propaganda for war). The ECHR (Article 10) affirms that the right to freedom of expression includes “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”. The same article provides that the exercise of these freedoms “may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime […]”. According to the European Court of Human Rights, restrictions must be proportionate to the legitimate aim pursued (see for example Handyside v. UK, judgment of 7 December 1976, Series A, No. 24). At the same time, the availability of foreign broadcasting in a minority language does not exonerate the State from fulfilling its obligation to

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facilitate domestically produced broadcasting in that language nor does it justify a reduction of the broadcast time in that language. This principle is set out in the HCNM’s Media Guidelines (Recommendation 13(2) ) and in the Oslo Recommendations regarding the Linguistic Rights of National Minorities (Recommendation 11). The same principle is reaffirmed by the Advisory Committee on the FCNM (ACFC/INF/OP/I(2003)004, paragraph 50), which states that “availability of […] programmes from neighbouring States does not obviate the necessity for ensuring programming on domestic issues concerning national minorities and programming in minority languages”. In order to foster social cohesion and the promotion of integration of minorities into the wider society, it is important that they have access not only to foreign broadcasting in their language, but also to the media in their country of residence. States should therefore facilitate both domestically produced broadcasting in minority languages and the accessibility of mainstream media. 15. When granting benefits to persons belonging to national minorities residing abroad, States should ensure that they are consistent in their support for persons belonging to minorities within their own jurisdiction. Should States demonstrate greater interest in minorities abroad than at home or actively support a particular minority in one country while neglecting it elsewhere, the motives and credibility of their actions may be put into question. The protection and promotion of the rights of persons belonging to minorities is first and foremost the obligation of the State in whose jurisdiction these persons reside. Consequently, there is a logical expectation that when a State offers, pursues or promotes rights or policies concerning the situation of certain minorities abroad, this same State will also protect and promote the rights of persons belonging to minorities within its own borders in a proportional way. States should also be consistent in their treatment of “kin-minorities” in the different countries in which they reside and avoid overt discrepancies between similar situations. The State where the minority in question resides may draw attention to such discrepancies and question the underlying motives. Under no circumstances should this example be read as a pretext to deviate from the principles contained in Recommendations 2, 5 and 6 or, more generally, from the international standards concerning the protection of persons belonging to minorities. States that refrain from pursuing active policies with regard to minorities abroad are not entitled to neglect the minorities residing in their territories. Conversely, this Recommendation should not be interpreted as encouraging full reciprocity in inter-State relations regarding

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protection of minorities, since domestic standards set by individual States are not always applicable to the situation in other States.

IV. Multilateral and bilateral instruments and mechanisms 16. States should co-operate across international frontiers within the framework of friendly bilateral and multilateral relations and on a territorial rather than an ethnic basis. Transfrontier co-operation between local and regional authorities and minority self-governments can contribute to tolerance and prosperity, strengthen inter-State relations and encourage dialogue on minority issues. As reaffirmed in the Preamble of the FCNM, “the realisation of a tolerant and prosperous Europe does not depend solely on co-operation between States but also requires transfrontier co-operation between local and regional authorities without prejudice to the constitution and territorial integrity of each State”. An increasing number of international and supranational instruments have been developed over recent decades to promote transfrontier relations. The first was the 1980 European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities and its additional protocols. More recently, the European Union also made an important contribution in developing the legal instruments for transfrontier co-operation by adopting the 2006 Regulation (EC) No. 1082/2006 of the European Parliament and the Council on a European Grouping of Territorial Cooperation (EGTC). With regard to minorities in particular, Articles 17 and 18 of the FCNM encourage States to take measures to promote transfrontier co-operation as a means to implement the protection and promotion of the identity of persons belonging to national minorities. Transfrontier co-operation should, however, take place on a territorial rather than an ethnic basis: it should be designed for the benefit of the whole population residing in the territory of a sub-State entity. Moreover, such cooperation should be conducted on the basis of friendly bilateral and multilateral relations, stemming from the general international legal principle of friendly and good neighbourly relations, already elaborated in Recommendation 3. 17. In dealing with issues concerning the protection of persons belonging to national minorities, States should be guided by the rules and the principles established in international human rights documents, including those multilateral instruments and mechanisms which have been

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created specifically to support the implementation of standards and commitments relating to minorities. As part of international human rights, the rights of persons belonging to national minorities are universal. Against this background, it is important that these rights are interpreted in a uniform way and according to the standards contained in multilateral instruments, notably of the United Nations, the OSCE, the Council of Europe and the EU. As stated in Recommendation 3, minority rights are a matter of international concern. States may therefore prefer to voice their concerns through multilateral mechanisms, as bilateral relations may be affected by unequal negotiating positions and may overlook minorities without a “kin-State”. It should be noted that transparency helps to promote understanding and goodwill, and that independent monitoring helps ensure that international legal norms are upheld. States could, therefore, benefit from reporting consistently on all their activities involving national minorities abroad to international bodies such as the Committee on Elimination of Racial Discrimination (CERD) or the Advisory Committee on the FCNM. 18. States are encouraged to conclude bilateral treaties and make other bilateral arrangements in order to enhance and further develop the level of protection for persons belonging to national minorities. These mechanisms offer vehicles through which States can share information and concerns, pursue interests and ideas, and further support minorities on the basis of friendly relations. A bilateral approach should follow the spirit of fundamental rules and principles laid down in multilateral instruments. In recent times there has been a considerable increase of bilateral treaties on transfrontier co-operation in inter-State relations that aim to improve minority protection through, inter alia, the establishment of joint commissions. Within the framework of international standards, bilateral treaties and the mechanisms they envisage can serve a useful function in respecting and promoting the rights of persons belonging to minorities. Article 18 of the FCNM encourages States to conclude such agreements. They can offer a vehicle through which States can share information and concerns, pursue interests and ideas, and further protect particular minorities on the basis of the consent of the State in whose jurisdiction the minority resides. Articles 26 and 31 of the 1969 Vienna Convention on the Law of Treaties stipulate that treaties should be implemented and interpreted in good faith. Bilateral treaties should not fall below and preferably should go beyond and complement international

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minimum standards. They should not be formulated in such a way that gives rise to interpretation divergent from the multilaterally set standards and should supplement rather than substitute the obligations of the State of residence. 19. States should make good use of all available domestic and international instruments in order to effectively address possible disputes and to avert conflicts over minority issues. This may include advisory and consultative bodies such as minority councils, joint commissions and relevant international organizations. Mediation or arbitration mechanisms should be established in advance through appropriate bilateral or multilateral agreements. Bilateral agreements for the protection of the rights of persons belonging to minorities on the territory of both States often provide for joint commissions to monitor and implement such agreements. Moreover, legislation in many States provides for advisory bodies on minority issues. In order to be effective, these bodies should include minority representatives and others who can offer specific expertise, be provided with adequate resources and be given serious attention by decision makers. This has been affirmed by the UN Declaration on Minorities (Articles 2(2) and 2(3) ), the Copenhagen Document (paragraph 35), the FCNM (Article 15) and, with regard to advisory and consultative bodies in particular, by the Lund Recommendations on the Effective Participation of National Minorities in Public Life (12 and 13). Advisory and expert bodies such as the Venice Commission may offer useful guidance and legal advice to the States on contentious legislative initiatives and should be consulted prior to their adoption. Moreover, such legislation should be subject to domestic periodic review and may include sunset clauses. Advisory and expert bodies such as the Venice Commission may offer useful guidance and legal advice to the States on contentious legislative initiatives and should be consulted prior to their adoption. Moreover, such legislation should be subject to domestic periodic review and may include sunset clauses. In the case of disputes, international experience, including that of the High Commissioner on National Minorities, has revealed the value of the involvement of independent third parties or multilateral mediation and arbitration mechanisms in finding peaceful and viable solutions. The combined use of multilateral and bilateral instruments can also be useful and lead to a more dispassionate discourse and remedial action.

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UN Independent Expert on Minority Issues (UNIEMI) *The First Report of the Independent Expert on Minority Issues, with her analysis of her mandate, her planned methods of work, and areas of priority concern … Introduction 1. The outcome document of the 2005 World Summit of Heads of State and Government, approved by the General Assembly, notes that “the promotion and protection of the rights of persons belonging to national or ethnic, religious, and linguistic minorities contributes to political and social stability and peace and enriches the cultural diversity and heritage of society” (para. 130). The independent expert welcomes this high-level consensual acknowledgement by Heads of State and Government of the important role of minority rights in achieving key global, regional and national objectives. 2. In his report, In larger freedom, towards security, development and human rights for all (A/59/2005), the Secretary-General highlights the importance and interconnectedness of human rights, development and security. The independent expert believes that respect for minority rights is critical to achieving stable and prosperous societies, in which human rights, development and security are achieved by all, and shared by all. 3. The dynamics of majority/minority relationships lead to the emergence of a range of minority issues which provide opportunities and challenges for States and societies as a whole. Such issues, in all spheres of life, are identified and articulated both by minorities and by States seeking to manage diverse societies. Within this wider context of minority issues, the normative framework provided by minority rights should be understood as a necessary element to ensure integrated societies and to promote social inclusion and cohesion. In such societies, various national, ethnic, religious and linguistic groups are able to live confidently together, communicate effectively, and recognize value in their differences and in their society’s cultural diversity.

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4. Many violations of civil, political, economic, social and cultural rights have a basis in discrimination, racism and exclusion on the grounds of the ethnic, religious, national, or racial characteristics of the victim group. At the same time, emerging best practices in the field of human rights promotion, particularly in promoting economic, social and cultural rights, stress the value of diversity and social inclusion. 5. The independent expert welcomes the Plan of Action of the Office of the United Nations High Commissioner for Human Rights (OHCHR) in accordance with the Secretary-General’s reform agenda, and its dual goals of protection and empowerment. She believes that work carried out within her mandate must adhere to, and constructively advance, the objectives of the Plan of Action, and its strategy to address key challenges to human rights. In drafting this report, the independent expert has consulted closely regarding key elements of the Plan of Action. She hopes to reflect its recommendations in her methods of work, activities and partnerships. In particular she welcomes the focus on implementation at the national level as key to addressing the “protection gap” that exists with regard to minority rights. She also notes the positive aspects of the OHCHR’s Plan of Action with respect to the empowerment of minority communities and the enrichment of cultural diversity. 6. The current report consists of five parts. In chapter I, the independent expert will provide a brief overview of the bodies, activities and instruments of the United Nations system she believes are most relevant to minority issues. In chapter II, she will share her initial considerations as to how she perceives her mandate. In chapter III, she will elaborate on how she intends to conduct her mandate and the activities foreseen under it. In chapter IV, the independent expert will offer some initial comments on issues of particular relevance to her mandate and identify priority areas of concern. In chapter V of the report, the independent expert will outline her activities to date. 7. The independent expert looks forward to the opportunity to elaborate on some of the points not satisfactorily covered in this report, on the occasion of her oral presentation to the Commission on Human Rights.

I. Background 8. The Charter of the United Nations, which came into force in 1945, sets out to promote universal “respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”. The Universal Declaration of Human Rights, adopted in 1948, proclaims that

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all human beings are born free and equal in dignity and rights. It sets out the human rights that are due to all, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In 1965, the General Assembly adopted the International Convention on the Elimination of All Forms of Racial Discrimination, whose article 1 defines discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”. In 1966, the General Assembly adopted the International Covenant on Civil and Political Rights, which in article 27 provides that “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”. In 1994, the Human Rights Committee (HRC) adopted its general comment No. 23, providing an authoritative interpretation of this article. In 1989, the General Assembly adopted the Convention on the Rights of the Child. In article 30, this convention similarly provides that “in those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language”. In 1992, the General Assembly built on these provisions and adopted the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (hereafter the Declaration on the Rights of Minorities), the only United Nations instrument wholly devoted to the rights of minorities. The Declaration of the Rights of Minorities will be available on the independent expert’s page at the OHCHR website. In 1995, Economic and Social Council resolution 1995/31 established the Working Group on Minorities of the Sub-Commission on the Promotion and Protection of Human Rights. Between 1995 and 2005 the Working Group on Minorities met in Geneva for five working days each year. At this annual meeting, the Working Group on Minorities served as a forum for dialogue, increasing understanding of minority issues and helping to find solutions to problems involving minorities. In recent years, the Working Group on Minorities

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proposed, and the Sub-Commission endorsed, the idea of holding subregional seminars on issues facing minorities; the Office of the High Commissioner for Human Rights has organized three such meetings in Asia: in Chiang Mai, Thailand, in 2002, in Bishkek, Kyrgyzstan, in 2004, and in Kandy, Sri Lanka, in 2004; three in Africa: in Arusha, Tanzania, in 2000, in Kidal, Mali, in 2001 and in Gaborone, Botswana, in 2002; and two in Latin America and the Caribbean: in La Ceiba, Honduras, in 2002 and in Chincha, Peru, in 2005. The Working Group on Minorities itself proposed a new mandate on minority issues to complement its work. 15. In 2005, the Commission on Human Rights adopted resolution 2005/79, which requested the High Commissioner for Human Rights to appoint, for a period of two years, an independent expert on minority issues. The resolution also amended the mandate of the Working Group on Minorities so that it would meet for three days per year during the session of the Sub-Commission, rather than five, and would focus its work “on interactive dialogue with relevant non-governmental organizations and on conceptual support of, and dialogue with, the independent expert, who shall participate as an observer”. 16. On 29 July 2005, the High Commissioner for Human Rights announced the appointment of Gay McDougall (United States of America) as independent expert on minority issues.

II. The mandate of the independent expert 17. Commission resolution 2005/79, which establishes the independent expert’s mandate, in paragraph 6 requests the United Nations High Commissioner for Human Rights to appoint an independent expert on minority issues for a period of two years, with the mandate: a. To promote the implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, including through consultations with Governments, taking into account existing international standards and national legislation concerning minorities; b. To identify best practices and possibilities for technical cooperation by the Office of the United Nations High Commissioner for Human Rights at the request of Governments; c. To apply a gender perspective in his or her work; d. To cooperate closely, while avoiding duplication, with existing relevant United Nations bodies, mandates, mechanisms as well as regional organizations; and

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e. To take into account the views of non-governmental organizations on matters pertaining to his or her mandate. 18. The resolution also “requests the independent expert to submit annual reports on his/her activities to the Commission, including recommendations for effective strategies for the better implementation of the rights of persons belonging to minorities” and “requests the High Commissioner to provide all the necessary resources, from within existing budgetary resources, for the effective fulfilment of the mandate of the independent expert”. Scope of the mandate 19. The independent expert looks to the Declaration on the Rights of Minorities to inform the scope of her mandate. The commentary to the Declaration on the Rights of Minorities, adopted by the Working Group on Minorities at its tenth session (see E/CN.4/Sub.2/AC.5/2005/2), provides a useful tool for interpreting the provisions of the Declaration and its application. The independent expert will also rely on article 27 of the International Covenant on Civil and Political Rights and article 30 of the Convention on the Rights of the Child, which specifically relate to minority rights. 20. It is also important to recognize that the rights guaranteed in all other leading human rights conventions apply equally to members of minority groups. For example, the principle of non-discrimination in the enjoyment of human rights is expressed in the Charter of the United Nations and provided by customary international law as well as stipulated in the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the International Convention on Economic, Social, and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women and the Universal Declaration of Human Rights. Also of particular importance to minorities is the principle of participation, without discrimination, in the public sphere, as guaranteed by both the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. 21. The independent expert will refer to, and take guidance from, other existing regional human rights instruments, as appropriate. Regional standards, including the African Charter on Human and Peoples’ Rights, the European Convention on Human Rights and the Inter-American Convention on Human Rights, as well as the jurisprudence developed under

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these instruments, will provide valuable regional perspectives on the treatment of minority issues. Standards relating specifically to minority rights and non-discrimination, including the Council of Europe’s Framework Convention for the Protection of National Minorities (FCNM) and the Copenhagen Document of the Organization for Security and Cooperation in Europe, provide further valuable understanding and perspectives on minority issues. 22. The independent expert identifies four broad areas of concern relating to minorities around the world, based on the Declaration on the Rights of Minorities and other relevant international standards relating to minority rights: a. Protecting a minority’s existence, including through protection of their physical integrity and the prevention of genocide; b. Protecting and promoting cultural and social identity, including the right of individuals to choose which ethnic, linguistic or religious groups they wish to be identified with, and the right of those groups to affirm and protect their collective identity and to reject forced assimilation; c. Ensuring effective non-discrimination and equality, including ending structural or systemic discrimination; and d. Ensuring effective participation of members of minorities in public life, especially with regard to decisions that affect them. Parameters 23. The independent expert will be guided by a number of parameters when determining the issues and situations that fall within her mandate. The independent expert supports the view that determination of which groups constitute minorities does not lie with the State, but is dependent on a range of both objective and subjective criteria, in accordance with the principles of international law. The Human Rights Committee, in its general comment No. 23, makes clear that “the existence of an ethnic, religious or linguistic minority in a given State party does not depend on a decision by that State party but [needs] to be established by objective criteria”. At the same time, minority status is closely tied to how a group defines itself. The principle that belonging to a minority is a matter of a person’s choice includes the right to not be treated as a minority and the notion that no disadvantage may arise from the exercise of such a choice. The Committee on the Elimination of Racial Discrimination (CERD) notes in its general recommendation VIII that “the ways in which

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individuals are identified as being members of a particular racial or ethnic group or groups … shall, if no justification exists to the contrary, be based upon self-identification by the individual concerned”. As such, groups falling within the scope of the mandate of the independent expert will include those that self-identify as minority communities. The independent expert notes that she will not be guided by an exacting assessment of the relative numerical size of a population group compared to that of the larger society. Each situation will be different, and she will consider the specifics of the situation on a case-by-case basis. The independent expert will focus her work only on non-dominant minority groups. At the same time, she recognizes that some minority groups may be dominant in certain spheres, such as the economic sphere, while suffering discrimination in others. She will take such situations fully into account. The duration of residence or domicile within a State does not limit protections under international standards relating to minorities, including the Declaration on the Rights of Minorities. As the Human Rights Committee made clear in general comment No. 23, newly resident minority groups and non-citizens are entitled to the minority rights protections laid out in article 27 of the International Covenant on Civil and Political Rights, provided they belong to a group that can be distinguished on ethnic, religious or linguistic grounds. Claims made by minorities may involve calls for equality and nondiscrimination, respect for their identity, language, religion and cultural practices, and protection and promotion of their identity in law and in practice. They may involve territorial issues or assertions that they have the right to establish and maintain free and peaceful contacts across national frontiers with citizens of, and those resident within, other States who have similar ethnic, religious or linguistic affiliations. It is important to note that the Declaration on the Rights of Minorities focuses on the duties of States to protect the identity of minorities and ensure their effective participation in public life. This may at times be accomplished most effectively by extending territorial or non-territorial autonomy to minority groups, or by the decentralization of some authority through self-governing arrangements. However, the Declaration does not require the establishment of such autonomy, and such arrangements may not always provide the most effective means of ensuring rights within minority communities. The independent expert also takes note of the collective nature of minority rights. This holds importance for the promotion and protection of minority identity and visibility, for the informed collective participation

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of these groups in decisions that affect their rights and resources, and for securing collective claims to linguistically and culturally appropriate education, land and other shared assets. While the Declaration on the Rights of Minorities examines rights that may be claimed by individual members of minority communities, those claims will often require the State to ensure the existence or identity of the group as a whole. 28. Finally, the independent expert recognizes that some individuals within ethnic, religious, linguistic or national minority groups may experience multiple forms of discrimination because of other factors including gender, gender expression, gender identity, sexual orientation, disability, age or health status. This means that, within minority communities, some individuals who are already struggling against intolerable levels of generalized exclusion also face compounded forms of discrimination or violence based on their gender, personal identity or expression. As a result, the independent expert intends to consider the compounded and often negatively reinforcing nature of multiple forms of exclusion as she undertakes her work, while also highlighting the importance of protecting diverse forms of personal expression. 29. Taking these various considerations into account, the independent expert will focus her work on national, ethnic, religious, linguistic and cultural groups whose generally non-dominant positions within their societies demand protection to allow them to exercise their rights to the fullest.

III. Methods of Work 30. In carrying out her mandate, the independent expert will undertake various methods of work in order to achieve the most efficacious results. In the section that follows, the independent expert will describe the activities she plans to pursue under the terms of her mandate, as provided in Commission resolution 2005/79. a. To promote the implementation of the Declaration on the Rights of Minorities, including through consultations with Governments, taking into account existing international standards and national legislation concerning minorities 31. The independent expert believes that there is a lack of knowledge and understanding regarding minority rights as set out in the Declaration on

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the Rights of Minorities, as well as regarding the value of diversity in general. This hinders the full and effective implementation of minority rights. The role of minority rights in promoting equitable development and peace and stability, has not been fully appreciated. As such, the independent expert believes that it is important to publicize widely the content of the Declaration on the Rights of Minorities and her mandate to States, the public at large and within the United Nations itself. To promote an understanding of minority issues, the independent expert plans to develop her existing page at the OHCHR website (www.ohchr .org/english/issues/minorities/expert/index.htm) as a resource. This will include information about the independent expert’s mandate and activities. Documents and further information relating to minority issues and the Declaration on the Rights of Minorities will be provided. The website will link to and complement other Web-based information sources on minority issues including those of States, academic and research institutions and civil society. Much of this information will also be provided in a pamphlet about the independent expert’s mandate, which will be published in collaboration with OHCHR, translated into the six official languages, and reproduced for use within the United Nations Guide for Minorities. The independent expert will participate in relevant expert seminars and conferences to promote the Declaration on the Rights of Minorities, including the annual sessions of the Working Group on Minorities. She will encourage public attention to the issues and her work, and will promote policy-oriented research and dialogue including with regard to specific matters. In carrying out her mandate, the independent expert will receive information from diverse sources including States, expert bodies, United Nations agencies, regional and other inter-governmental organizations, NGOs and other civil society organizations. Based on such information, she will communicate with States concerning implementation of the Declaration on the Rights of Minorities, where appropriate. Communications will include requests for further consultation and information relating to good practices on minority issues. At the invitation of Governments, the independent expert may also undertake country visits to further constructive consultation, observe relevant programmes and policies, register concerns, and identify areas for cooperation. She will study national legislation, policy, regulatory frameworks and institutions and practices, in seeking to promote the effective implementation of the Declaration on the Rights of Minorities.

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b. To identify best practices and possibilities for technical cooperation by the Office of the United Nations High Commissioner for Human Rights at the request of Governments 36. The independent expert will seek to identify and disseminate best practices with regard to minority issues, as well as possibilities for technical cooperation. To this end, she will collaborate with sources of technical expertise, including OHCHR branches and units relating to technical cooperation and capacity-building, anti-discrimination, rule of law and democracy, national human rights institutions and treaty bodies. The independent expert notes that early work is required to identify and collect resources relating to technical cooperation relevant to minority issues. 37. The independent expert recognizes the need for greater implementation of the Declaration on the Rights of Minorities at the national level and notes that respect for minority rights entails positive obligations on the part of the State. In general comment No. 23, the Human Rights Committee made clear that, in fulfilling article 27 of the ICCPR, “positive measures of protection are … required not only against the acts of the State party itself, whether through its legislative, judicial, or administrative authorities, but also against the acts of other persons within the State party”. The independent expert will identify and disseminate best practices of States in this area as well, in addition to possible areas of technical cooperation. 38. The independent expert notes that, in situations where deeply entrenched societal inequalities have taken root, States may have the legal obligation to take affirmative measures to ecure the adequate advancement of minority groups. With this in mind, the independent expert will also collect and disseminate information about affirmative-action policies and practices and identify areas for possible technical cooperation in this area. 39. To this end, she will work to develop a questionnaire regarding the measures that have been taken to implement the Declaration on the Rights of Minorities in national contexts. The independent expert will evaluate the questionnaire responses when identifying best practices for implementing the Declaration on the Rights of Minorities and areas of possible technical cooperation. c. To apply a gender perspective in her work 40. The independent expert will consider in detail the different ways that denials of rights are manifested in the experiences of both men and

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women, and girls and boys. In this regard, she takes note of CERD’s general recommendation XXV, which makes clear that: There are circumstances in which racial discrimination only or primarily affects women, or affects women in a different way, or to a different degree than men. Such racial discrimination will often escape detection if there is no explicit recognition or acknowledgement of the different life experiences of women and men, in areas of both public and private life. 41. CERD notes that “women may also be further hindered by a lack of access to remedies and complaint mechanisms for racial discrimination because of gender-related impediments, such as gender bias in the legal system and discrimination against women in private spheres of life”. Multiple or intersectional discrimination raises particular concern, for example, in situations of armed conflict and civil unrest, where women may be subjected to violence including crimes against humanity on the grounds of their ethnicity, religion, language, or identification with other minority groups. 42. The independent expert will also devote attention to the situations of those members of minority groups who experience multiple forms of discrimination, based on aspects of their identities and personal realities such as sexual orientation or gender expression that challenge social or cultural norms. 43. The independent expert will consider best practices for addressing these differing experiences of women and men. She will encourage and seek to facilitate effective collaboration, and sharing of information and lessons learned, between actors engaged on gender issues and those working on minority issues. She will consult closely, and seek to collaborate with, the Committee on the Elimination of Discrimination against Women (CEDAW) regarding its experience in gender discrimination, and welcomes an exchange of expertise with that body. d. To cooperate closely, while avoiding duplication, with existing relevant United Nations bodies, mandates, mechanisms as well as regional organizations 44. The Declaration on the Rights of Minorities states in article 9 that “the specialized agencies and other organizations of the United Nations system shall contribute to the full realization of the rights and principles set forth in the present Declaration, within their relevant fields of competence”. 45. The independent expert welcomes the opportunity to collaborate with these existing bodies, mandates, mechanisms and organizations in the fulfilment of her mandate. While many existing structures will have a

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great deal to contribute to the independent expert’s work, she realizes that her mandate will play a unique function among these groups and will not duplicate their work. Mainstreaming initiatives throughout the United Nations will be important in this regard and are elaborated on later in this report. As was noted in the report of the High Commissioner for Human Rights on the rights of persons belonging to minorities, submitted to the sixtieth session of the Commission (E/CN.4/2004/75), before the establishment of the independent expert’s mandate: Numerous observers representing Governments, non-governmental organizations or minorities and wider civil society, including independent experts, are of the opinion that some challenges facing minorities have not been appropriately covered by existing mandates, for structural or functional reasons. As minority issues do not constitute the main focus of the existing mandates, inevitably the mandates are unable to reflect the full range of concerns relevant to minorities. The independent expert is concerned by the number of communications regarding violations of human rights that display discrimination, racism or xenophobia against a minority group and its members as a root cause. Often, the minority rights component of such communications is hidden and therefore the wider context of issues arising out of the minority status of the victims is neglected and remains unaddressed in subsequent attempts to achieve solutions for individuals or communities. The independent expert believes that greater attention given to the root causes of grievances may reveal issues of concern relating to minorities. The independent expert aims to collaborate closely with OHCHR and its existing field offices to promote mainstreaming of minority issues, and to develop a greater awareness of minority issues and the Declaration on the Rights of Minorities within these offices. Awareness-raising, training and capacity-building initiatives to this end will be encouraged under the auspices of OHCHR, taking into account ongoing training and staff development priorities. Information on minority issues relevant to field offices and staff will be provided in a systematic manner to assist them in their treatment of minority issues. The independent expert intends to work collaboratively with the Working Group on Minorities of the Sub-Commission with a view to avoiding duplication, taking advantage of the differences in their mandates and identifying the best methods of creating synergies. She holds the work of the Working Group in high regard and values its work and practices, which provide for unique dialogue with minorities themselves and foster constructive dialogue between Governments and minority groups.

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Her work will be informed by the conceptual framework on issues involving minorities, which has been so ably developed by the Working Group. The independent expert actively supports and encourages the continuation of the Working Group’s mandate. In carrying out her mandate, the independent expert will also work in close cooperation with United Nations treaty bodies, as appropriate. In her consultation with Governments, she will work to strengthen State reporting to treaty bodies on minority rights, and develop guidelines to that end in consultation with such bodies. In particular, she envisages a close working collaboration with the Committee on the Elimination of Racial Discrimination. She welcomes CERD initiatives in the field of genocide prevention and the development of indicators for that purpose. The independent expert will consult closely with the Human Rights Committee relating in particular to its work on, and treatment of, minority rights under article 27 of the International Covenant on Civil and Political Rights and application of the principles of non-discrimination and equality. Equally, the Committee on the Rights of the Child will be consulted regarding its consideration of minority rights under article 30 relating to children belonging to minority groups. The Committee on the Elimination of Discrimination against Women has a valuable role to play in regard to emerging work on intersectional and multiple forms of discrimination against minority women. The independent expert will also collaborate with other special procedures of the OHCHR and the Secretary-General and share information with relevant mandate-holders whenever appropriate. With these individuals and bodies, she will highlight the central role that issues relating to minorities play in emerging best practices, and in a variety of other effective human rights promotion activities. The independent expert also encourages other mandate-holders to identify, and bring to her attention cases involving minority rights violations for further investigation. The independent expert will consult closely with other mandate-holders on matters pertaining to joint initiatives, communications and visits. The independent expert will also explore possible means of collaboration with other United Nations bodies and specialized agencies including United Nations Development Programme, United Nations Educational, Scientific and Cultural Organization, United Nations Children’s Fund, International Labour Organization and United Nations High Commissioner for Refugees, whenever their work bears on her mandate. She will consult with these bodies to share information and strengthen understanding and capacity in regard to minority issues, as appropriate to their specialist fields of activity and programmes of work.

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54. The independent expert also plans to work together with regional intergovernmental human rights and other mechanisms when possible. In September 2005, she sent letters to the Organization for Security and Cooperation in Europe (OSCE) High Commissioner on National Minorities and to the President of the Advisory Committee under the Framework Convention for the Protection of National Minorities at the Council of Europe, expressing her desire for future collaboration and sharing of information and expertise. She will also consult with other mechanisms including those of the African Union (AU), and those of the Organization of American States (OAS). The independent expert remains available in an advisory capacity to all regional and other bodies pursuing work on minority and related issues. e. To take into account the views of non-governmental organizations on matters pertaining to his or her mandate 55. The independent expert recognizes that NGOs have been instrumental in establishing her mandate. She realizes that NGOs are often uniquely positioned to provide timely information on situations involving minorities. As such, she will seek regularly to meet and consult with NGO representatives, particularly those directly representing minority communities, and she will solicit their views. She will establish specific guidelines about how NGOs should submit information to her. These will be published and made available through online sources, including her page at the OHCHR website, and within the pamphlet noted above. In all appropriate activities relevant to her mandate she will consult with and seek the participation of representatives of minority groups. 56. The independent expert considers that NGOs have a vital role to play in the fulfilment of her mandate in the provision and dissemination of information relating to minorities, to civil society networks and directly to minority communities. She will work closely with NGOs to encourage the dissemination of information to rights holders. A counterflow of information relating to minority issues and the situations of minorities, including legislation relating to minorities, will be encouraged to her office and other relevant bodies. 57. The independent expert also acknowledges the work of numerous academic, legal, research and independent policy development organizations regarding minority issues. She will consult with these organizations in all aspects of their work relevant to her mandate. She will also aim to develop linkages between these institutions, United Nations bodies and agencies, States and minorities.

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IV. Areas of Concern and Priorities for the Independent Expert’s Initial Two-Year Mandate 58. At this early stage of her mandate, it is not possible for the independent expert to provide a comprehensive picture of the human rights situation of minorities around the world. However, drawing on information received by bodies, including the Working Group on Minorities, and from numerous communications by NGOs, it is possible to identify and group together some of the concerns that are being raised consistently within minority communities in all regions. 59. The independent expert encourages States to recognize that attaching appropriate value to ethnic and cultural diversity is conducive to fostering inclusive national identities and the rewards of stability and development. This is especially true within States that have become increasingly heterogeneous within a relatively short period of time. In some States, important debates about language, religion, social inclusion, political participation, citizenship, poverty and identity often assume a negative tone that is not conducive to social cohesion or harmony. 60. Serious concerns also arise in States emerging from communal violence and conflicts. There is an urgent need in such societies that minorities feel reassured that their new post-war societies fully embrace multi-ethnic identities and provide effective participation to previously warring ethnic or religious factions. Within that context, the independent expert will seek to highlight best practices and effective mechanisms for valuing diversity as an organizing principle within democratic systems. 61. The independent expert is deeply concerned by the proliferation of counter-terrorism measures that violate the rights of minority communities and create a climate that emboldens abusive individuals. Some communities, including ethnic and religious minorities, are disproportionately affected by counter-terrorism measures, including the use of emergency powers in relation to normal judicial processes. These communities are under more stress, their livelihoods are more threatened and the value of their integration is more brazenly questioned in the postSeptember 11 security environment. The independent expert stresses that counter-terrorism measures should be implemented only in full consideration of minority rights, and that, in times of public emergency, measures restricting other rights must not be discriminatory on the grounds of race, colour, sex, language, religion or social origin. In this regard, the independent expert will seek to work with the new Special Rapporteur on the promotion and protection of human rights while countering terrorism.

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62. Given the breadth of work that demands attention with respect to minority issues, the independent expert believes it is important to focus her upcoming work on three broad strategic objectives that will promote the broader goals of minority inclusion in society and minority protection within the United Nations system. These three objectives are (a) to increase the focus on minority communities in the context of poverty alleviation and development; (b) to increase the understanding of minority issues in the context of ensuring stable societies; and (c) to mainstream the consideration of minority issues within the work of the United Nations and other important multilateral forums. The identification of these three objectives in no way precludes the independent expert from addressing other issues or emergency concerns as the need arises. Rather, it is intended to shape the contours of her work under the mandate, and to respond in a concrete way to some of the most important global concerns in the areas of minority inclusion and protection. 63. In furtherance of these three strategic objectives, the independent expert will apply the provisions and principles of the Declaration on the Rights of Minorities. By working within such a framework, she will provide a unique and otherwise overlooked consideration of minority issues, ensuring that her work brings added value separate and distinct from the work of other United Nations mandate-holders and bodies. Poverty and minority communities 64. Minority groups that face widespread discrimination or exclusion are much more likely than other groups to be impoverished. The facts are both obvious and overwhelming. The poorest communities in almost any region tend to be minority communities that have been targets of longstanding discrimination, violence or exclusion. As such, poverty within minority communities must be viewed as both a cause and a manifestation of the diminished rights, opportunities, and social advancement available to the members of that community as a whole. And efforts to reduce poverty are essential to larger efforts to promote the full range of civil, political, social and economic rights for minority communities. 65. Poverty in this context involves more than just a lack of income or a daily struggle for basic sustenance. Poor communities are generally less able to participate effectively in political decision-making or to access mechanisms of justice when their rights are violated. They suffer from unequal access to education, health care, employment and land. Without a targeted focus on their needs and rights, they will remain disproportionately

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impoverished. And without a more coherent effort to reduce poverty through targeted strategies that specifically reach out to minority communities, the international community will fail to achieve, or sustain, the important targets set within the Millennium Development Goals (the Goals). 66. The independent expert is concerned that the most marginalized communities, including minorities, are failing to benefit from international efforts to achieve the Goals. She welcomes work done by States, development agencies, international financial institutions, United Nations bodies and agencies and NGOs to ensure that the Goals are achieved for all disadvantaged communities. However, she will seek to elevate her concerns about the need for development programmes, policies and activities to take fully into account the needs and rights of minorities with States and among all development actors. She will consult with bodies, including UNDP, to ensure that work in this regard benefits from their experience, country offices and wider country engagement strategies. 67. The independent expert also believes that poverty reduction strategies developed by States and international financial institutions to address poverty and social exclusion are valuable in achieving the Goals. In consultation with States, international financial institutions and civil society, she will identify best practices and effective implementation strategies. She will consult with States that have Poverty Reduction Strategy Papers (PRSPs), to assist them in their consideration of minority issues. She will promote the participation of minorities in policy development, implementation, monitoring and evaluation of PRSPs. 68. Within this context, the independent expert has identified the use of disaggregated social, economic and development data as a tool that is of significant importance in the development field and to minority communities more generally. Disaggregated data, and especially statistical information on poverty, income and economic participation that can be broken down and analysed across specific groups, reveals inequalities between communities and allows for policy decisions and programmes that address those inequalities. Such data is essential in the promotion and protection of minority rights. The collection, analysis and dissemination of disaggregated data is also essential in building a common national identity based on equality and non-discrimination. As such, in those countries with existing capacity, the independent expert will emphasize in her consultations with Governments the importance of disaggregating data. She will also identify good practice in regard to data collection and statistical methodologies and develop strategies for the implementation of these efforts. In those countries lacking resources and capacity,

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she will consult closely with Governments to ensure the delivery of technical assistance. Promoting inclusion and stability 69. Minority rights, inclusion and equality play an important role in promoting political and social stability and peace, as stated in the 2005 World Summit outcome document. The independent expert considers the development of methodologies for the implementation of law and policy relevant to inclusion and equality as inherent to her mandate. 70. The independent expert recognizes that exclusion, discrimination and racism directed at minority groups may result in social unrest based on inequality. To reduce this risk, she will engage with and support initiatives to identify and understand the causes and prevalence of discrimination against minorities that may lead to conflict and instability. Technical assistance in the area of legislative and policy reform will seek to promote effective strategies of social cohesion, equality and non-discrimination to assist in addressing such situations. 71. In April 2004, in a speech commemorating the tenth anniversary of the 1994 genocide in Rwanda, Secretary-General Kofi Annan stated that, “We must protect the rights of minorities, since they are genocide’s most frequent targets.” The independent expert intends to collaborate closely with the Special Adviser to the Secretary-General on the Prevention of Genocide and with United Nations bodies such as CERD, to discuss strategies for effective early warning and conflict prevention, including through the development and implementation of social indicators that could highlight patterns of extreme violence or social exclusion aimed at or affecting minority communities. These indicators may be useful tools for identifying concerns in the earliest stages of a deteriorating situation, perhaps many years or even decades before grievances develop into violence within a particular region or State. The independent expert looks forward to initiating a dialogue with the Special Adviser to help identify the earliest structural warnings, including those that may be apparent with respect to minority communities, before other early warnings and other procedures are ever triggered. 72. The independent expert considers that peacebuilding initiatives will also benefit from more reliable information and systematic attention to minority issues. The full and effective participation of minority communities and their representative associations or NGOs is especially critical to the success of peacebuilding efforts after communal violence and conflict. In this context, the independent expert welcomes the establishment of a Peacebuilding Commission and will seek to support its work.

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Mainstreaming minority issues at the United Nations 73. The independent expert will promote the effective mainstreaming of minority issues across the United Nations system, recognizing that situations involving minorities often lie at the nexus of efforts to promote human rights, development and security. She recognizes the many important efforts that have already been taken in this regard, and supports the elaboration of a policy on minorities for OHCHR and other United Nations bodies and the establishment of an inter-agency dialogue on minority issues. The independent expert will encourage these dialogues among representatives of regional bodies, international financial institutions, and other development agencies as well. 74. A particular need exists for mainstreaming minority issues in areas of United Nations work relating to poverty reduction and the promotion of political and social stability. Existing best practices in regard to the mainstreaming of gender perspectives should be considered and replicated as appropriate. Existing “focal point” methodologies may be used to assist in mainstreaming initiatives, especially in regard to staff training and capacity-building needs on minority issues across the United Nations system. 75. Training and information initiatives should benefit all United Nations field staff, to ensure they are able to identify and monitor minority issues within their specific area of responsibility. This will increase their capacity to provide expert technical assistance to Governments when required.

V. Activities Consultations 76. From 19 to 21 September 2005, the independent expert visited Geneva and met with the High Commissioner for Human Rights and members of the High Commissioner’s staff, to discuss the independent expert’s mandate. She also held consultations in Geneva with representatives of the diplomatic missions of Austria (sponsor of the resolution establishing the independent expert’s mandate), Ethiopia (for the Group of African States), Armenia (for the Group of Eastern European States), Mexico (for the Group of Latin American and Caribbean States), and Ireland (for the Group of Western States). She also met with members of the diplomatic missions of Hungary and Switzerland. Finally, the independent expert held a joint consultation in Geneva with several NGOs. 77. On 22 September 2005, the independent expert visited London and held consultations with the NGOs Minority Rights Group International and

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Amnesty International. During these meetings, the independent expert solicited the views of NGO representatives on possible areas of focus for her mandate and discussed the prospect of future cooperation. 78. On 28 September 2005, in Washington D.C., the independent expert was consulted by representatives of minority communities in Bangladesh and, on 20 October 2005, by representatives of Haitian communities living in the Dominican Republic. Communications 79. On 7 September 2005, the independent expert joined the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance and the Special Rapporteur on the human rights of migrants in sending a letter to the Government of the Dominican Republic concerning the situation of Haitians residing there. The independent expert and Special Rapporteurs provided the Dominican Republic with six questions about the situation there and asked the Government of the Dominican Republic to respond within 60 days. As of 5 January 2006, the independent expert had received no response. 80. In addition, on 2 November 2005, the independent expert joined the Special Rapporteur on violence against women, its causes and consequences, the Special Rapporteur on the situation of human rights in Myanmar, the Special Rapporteur on the promotion and protection of the right of freedom of opinion and expression, the Special Rapporteur on the question of torture, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, the Special Rapporteur on the sale of children, child prostitution, and child pornography, and the Special Rapporteur on trafficking in persons, especially women and children, in submitting a communication to the Government of Myanmar. The independent expert and Special Rapporteurs provided Myanmar with 15 questions on these issues, including 1 on minority issues, and asked the Government to respond within 60 days. As of 5 January 2006, the independent expert had received no response. Conferences 81. From 2 to 4 November 2005, the independent expert participated in an expert seminar hosted by the Working Group on Minorities and OHCHR in Chincha, Peru, which focused on people of African descent in the Americas region, entitled “Strategies for the inclusion of people of African

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descent in programmes to reduce poverty, especially to achieve Millennium Development Goal 1”. The text of the report which the independent expert presented at this expert seminar will be available on the independent expert’s web page. 82. On 29 November 2005, the independent expert testified before the drafting committee for the proposed inter-American convention against racism and all forms of discrimination and intolerance of the Organization of American States. In her testimony, she urged that the proposed convention reaffirm the Declaration on the Rights of Minorities and guarantee the rights of minority groups. The complete text of the independent expert’s testimony will be available on the independent expert’s web page.

VI. Conclusions 83. Respect for minority rights benefits States and societies in terms of securing the richness of cultural diversity, reflecting their full heritage and contributing to social cohesion. It also advances the conditions for political and social stability and peace. Rather than promoting segregation and separation, minority rights are based on the principle of an integrated society, where each can use one’s own language, enjoy one’s culture and practise one’s religion but still feel part of a broader, inclusive national identity. However, to fully exploit this positive potential of minority rights to benefit societies as a whole, advances must be made in promoting minority rights and, most importantly, in highlighting best practices for effective implementation of minority rights in contemporary situations. 84. Anti-discrimination, while a key element, is not sufficient in itself to guarantee fully minority rights. Minority rights go beyond anti-discrimination to address the issues of those who may seek to promote and preserve their distinct identity. The opportunity to participate fully and effectively in all aspects of society, while preserving group identity, is essential to true equality and may require positive steps on the part of Governments. Minority rights are not about giving some communities more than others. Rather, they are about recognizing that, owing to their minority status and distinct identity, some groups are disadvantaged and are at times targeted, and that these communities need special protection and empowerment. All States should seek to realize the goal of equality in diversity, in law and in fact.

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85. The independent expert recognizes that insufficient resources and capacity affect the activities of minorities in promoting and protecting their rights, and limit the work of other bodies, including United Nations mechanisms, in regard to minority issues. In the light of such restrictions, she welcomes Economic and Social Council decision 2004/278 of 22 July 2004 to recommend to the General Assembly that it give favourable consideration to the establishment of a voluntary fund on minority-related activities. She encourages the adoption of such a decision as a means of supporting the implementation of the goals of protection and empowerment as set out in the OHCHR Plan of Action. 86. The independent expert reiterates the principle provided in the commentary to the Declaration on the Rights of Minorities that States have positive obligations not only [to] tolerance “but a positive attitude towards cultural pluralism on the part of State and the larger society. Not only acceptance but also respect for the distinctive characteristics and contribution of minorities to the life of national society as a whole are required”. The independent expert will draw from the wealth and variety of existing positive experiences and practices to assist her in fulfilling the requirements of her mandate.

*The 2009 Report of the Independent Expert on Minority Issues … I. Introduction 1) The independent expert is pleased to submit to the Human Rights Council her fourth annual report pursuant to Council resolution 2005/79. The present report provides an overview of her activities since her previous report, submitted in February 2008 (A/HRC/7/23) as well as a review of the ongoing collaboration with UNDP with the aim of strengthening UNDP engagement in minorities in development processes. The report also includes the recommendations of the inaugural Forum on Minority Issues as required in Human Rights Council resolution 6/15 (see A/ HRC/10/11/Add.1).

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II. Activities to promote the implementation of the declaration on the rights of minorities including through consultations with governments A. Country visits 2) Since the presentation of her previous report, the independent expert has undertaken official country missions to Guyana, from 28 July to 1 August 2008 (A/HRC/10/11/Add.2), and to Greece, from 8 to 16 September 2008 (A/HRC/10/11/Add.3). The independent expert thanks the Governments of Guyana and Greece for their exemplary cooperation during the preparation and conduct of her visits. 3) The independent expert’s visit to Guyana focused on the relations between and comparative situations of Afro-Guyanese and Indo-Guyanese. She considered the legacy and impact on communities of an ethnically divided society and ethnic-based politics, and made recommendations to ensure non-discrimination and equality is achieved through legislation, policy and practice. 4) The independent expert’s visit to Greece enabled her to gather substantial information on the challenges as well as positive practices related to the rights of minorities and disadvantaged groups. She considered the situation of the Roma, Muslims in the region of Western Thrace, other religious minorities and communities claiming ethnic Macedonian identity. 5) In pursuance of her mandate to promote the implementation of the Declaration on the Rights of Minorities and to identify best practices in every region, the independent expert welcomes the positive response of the Government of Kazakhstan to her request for a country visit in 2009. She looks forward to continuing a dialogue with Bangladesh, Colombia, the Islamic Republic of Iran, Malaysia, Nepal, Nicaragua, Panama, Surinam, Sri Lanka, Thailand and Turkey, to whom she has made requests to visit. B. Other activities 6) The independent expert issued a number of press releases and public statements on issues and situations of immediate concern. On 4 January 2008 she joined several mandate holders in expressing serious concern and alarm over the deteriorating situation in Kenya following disputed elections. The mandate holders called for a swift political solution and an immediate end to ethnically based violence and killings. On 28 February 2008 the independent expert joined the Special Rapporteur on adequate

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housing as a component of the right to an adequate standard of living in calling on the United States Government to halt ongoing evictions and to take immediate steps to protect the human rights of AfricanAmericans affected by Hurricane Katrina and the demolition of public housing in New Orleans, Louisiana. On 10 April 2008, the independent expert was one of seven mandates which called for restraint by all parties and transparency as mass arrests were reported in the Tibet Autonomous Region and surrounding areas in China. On 15 July 2008, the independent expert, the Special Rapporteur on contemporary forms of racism and the Special Rapporteur on the human rights of migrants criticized as discriminatory a policy of the Government of Italy to fingerprint all Roma, emphasizing that the policy contributes to an environment of hostility, antagonism and stigmatization of the Roma. On 20 November 2008 the independent expert, jointly with the Special Rapporteur on contemporary forms of racism, issued a press release urging Europe-wide action to stop violence against Roma following incidents of violence in a number of European countries. 7) In pursuance of her mandate requirement to promote implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, the independent expert receives information from diverse sources including Member States and non-governmental organizations regarding challenges to implementation of the Declaration and alleged violations of the rights of persons belonging to minority groups. On the basis of information received, and in order to solicit additional information from relevant States, the independent expert consults with Governments by sending communications in the form of letters of allegation, urgent appeals and thematic communications. The independent expert has consequently sent communications in relation to numerous situations involving minorities. Communications have been sent jointly with other relevant thematic mandate holders, and details are reflected in the summary reports of cases transmitted to Governments and replies received of those mandates.13

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During the period under review the independent expert joined communications to: China, India, the Islamic Republic of Iran, Iraq, Italy, Malaysia, Slovakia and the Sudan. Details of these communications are included in the summary reports of cases transmitted to Governments of the mandates including: the Special Rapporteur on freedom of opinion and expression; the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance; the Special Rapporteur on freedom of religion or belief; the Special Rapporteur on human rights defenders; the Special Rapporteur on the right to education.

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III. Activities to apply a gender perspective 8) Pursuant to the requirement under her mandate to apply a gender perspective in her work, the independent expert has placed a high priority on the issues of minority women. Information received by the independent expert consistently reveals that women belonging to minorities experience unique challenges and multiple or intersectional discrimination emanating from their status as members of minorities and as women or girls. 9) The independent expert has established a practice of holding forums dedicated to minority women’s views and voices during her country visits. She has conducted such forums during her visits to Hungary, Ethiopia, France, Dominican Republic, Guyana and Greece. These forums for women have revealed highly significant country and community specific information about the lives of minority women, which is reflected in the visit reports of the independent expert. They have been vital to a deeper understanding of issues facing minority communities in general. 10) The forums for women have also revealed, over the course of several forums, a number of issues that are common to women from many minority communities. Particular problems are faced by girls in accessing educational institutions and continuing their education through higher levels, especially in highly patriarchal family and community structures. Poverty and discrimination add to the weight of the “burden of family care” shouldered by most women. Minority women, whose families are most often extended ones, find those burdens particularly constraining. Heightened levels of domestic violence and physical assaults in public places, coupled with a multifaceted denial of access to justice have been common complaints heard from women from marginalized minority communities. They also face blockages within their homes and communities that deny them a role in decision-making. In the larger society they are denied a voice in decisions of the national polity because they are women and because they are minorities.

IV. Activities to cooperate with existing United Nations bodies, mandates, mechanisms and regional organizations 11) Article 9 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities reminds the specialized agencies and other organizations of the United Nations system that they are to contribute to the full realization of the rights and principles set forth

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in the Declaration within their respective fields. Additionally, the independent expert’s mandate requires her “to cooperate closely, while avoiding duplication, with existing relevant United Nations bodies, mandates, mechanisms as well as regional organizations”. In her initial report to the sixty-second session of the Commission on Human Rights, the independent expert said that in carrying out this aspect of her mandate, she “will explore possible means of collaboration with other United Nations bodies and specialized agencies whenever their work bears on her mandate. She will consult with these bodies to share information and strengthen understanding and capacity in regard to minority issues, as appropriate to their specialist fields of activity and programmes of work”. A. Collaboration with the United Nations Development Programme: minorities, poverty and development processes 12) The independent expert has developed a fruitful collaboration with UNDP. Her first thematic report (A/HRC/4/9) was on minorities, poverty alleviation strategies and the Millennium Development Goals (MDGs), in which she stated that: “The poorest communities in almost any region tend to be minority communities that have been targets of long-standing discrimination, violence or exclusion. As such, poverty within minority communities must be viewed as both a cause and a manifestation of the diminished rights, opportunities, and social advancement available to the members of that community as a whole. Without a targeted focus on their needs and rights, they will remain disproportionately impoverished. And without a more coherent effort to reduce poverty through targeted strategies that specifically reach out to minority communities, the international community will fail to achieve, or sustain, the important targets set within the Millennium Development Goals.” 13) She concluded that more must be done in all regions to focus the development process sharply on the needs of minorities. In the report, she strongly encouraged States and international development actors “to share with her further information on positive practices undertaken to develop strong policies and technical cooperation initiatives on poverty reduction in communities of historically marginalized minority populations”. 14) Pursuing her work in the area of poverty alleviation and realization of MDGs for minorities, the independent expert co-convened with UNDP in 2006 the consultation “UNDP’s Engagement with Minorities in Development Processes”. The co-conveners were the Democratic Governance Group of the Bureau for Development Policy (DGG/BDP) and the Office of the High Commissioner for Human Rights (OHCHR). The Consultation was to take stock of key issues, challenges, and gaps with regard to

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UNDP engagement with minorities in relevant practice areas and identify entry points that would help UNDP to better address issues related to minorities in development. Following were the key conclusions and recommendations: a. Empirical research should be carried out to generate enhanced understanding of minorities, followed by capacity development support for UNDP staff and relevant partners; b. There is a lack of knowledge of the United Nations mechanisms related to minority issues, including the mandate of the independent expert, and of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; c. There is need to undertake specific programmatic activities focusing on minority communities, grounded by clear policy and practical guidance for the staff of country offices, and to review ongoing projects and programmes with an intention to redefine target groups, and develop strategies for promoting non-discrimination, participation and transparency; d. As a longer term objective, a UNDP Guidance Note on Minorities in Development would be useful, whilst a Resource Guide on Minorities in Development should be elaborated, as a medium-term objective. 15) In 2008 the independent expert continued her collaboration with UNDP towards a UNDP Guidance/Policy note on minority issues. A UNDP Resource Guide on Minorities in Development was produced in cooperation with OHCHR and following extensive consultations with UNDP country offices and staff. A validation consultation on the draft UNDP Resource Guide on Minorities in Development was subsequently held on 2 and 3 December 2008 in New York to critically review the draft guide. The consultation also sought, inter alia, to share challenges and good practice in addressing minority issues in development, and to further enhance the inclusion of minority issues in UNDP programming. The guide will be finalized by mid-2009. 16) The primary target groups of the proposed Resource Guide are the UNDP country office practitioners and those with policy advisory responsibilities. However, it can also serve as a reference document for other United Nations agencies, government counterparts and other relevant partners. It is hoped that the final product will enable the target group(s) to understand the conceptual issues and fundamental principles relating to the promotion and protection of minorities, learn how to draw on the available international and regional standards to engage minorities in programming processes, influence policy choices, as well as increase their opportunities for meaningful participation and representation in development processes.

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B. Collaboration with the Inter-Parliamentary Union/United Nations Development Programme on minorities and parliamentary representation 17) The independent expert has highlighted in her country and thematic work the importance of ensuring that minorities are represented in elected bodies at the national and local levels. As a member of the Advisory Group to the joint Inter-Parliamentary Union (IPU) and UNDP project entitled “Promoting Inclusive Parliaments: The representation of minorities and indigenous peoples in parliament”, the independent expert has contributed to the development of this ongoing project. This project builds on IPU’s long experience in working to promote inclusiveness in national parliaments, including promoting women’s political participation. The first phase of the project is to gather data on different aspects of inclusiveness in parliament including through a questionnaire survey sent to national parliamentary authorities, parliamentary party groups represented in national parliaments, and individual parliamentarians. C. Collaboration with the Inter-Agency Working Group on Minorities 18) Under the auspices of the OHCHR Indigenous Peoples and Minorities Unit and the independent expert, the Inter-Agency Working Group on Minorities meets regularly to share information about ongoing initiatives relating to minorities. The Inter-Agency Working Group consists of the OHCHR, UNHCR, UNICEF, UNDP, UNESCO, OCHA, UNITAR, ILO, UNCTAD and WHO. A practical outcome of this inter-agency group has been an information note entitled “Towards Developing Country Engagement Strategies on Minorities”, which answers commonly asked questions regarding minorities and identifies possible elements that should be included in strategies to address the situation of minorities in United Nations country programmes. The Inter-Agency Group also offered practical opportunities for sharing of information and discussion including in regard to preparations for the inaugural Forum on Minority Issues. 19) In her initial report the independent expert identified as a key thematic priority for her work: “to enhance understanding of minority issues in the context of promoting inclusion and stability”. In this context, and consistent with her dialogue with the Human Rights Council in March 2007, she is supporting work by the Indigenous and Minorities Unit of OHCHR in the area of policing in multi-ethnic societies. On 15 and 16 January 2008, she was co-organizer with OHCHR, ILO and UNODC of a global meeting on integration with diversity in policing, held in Vienna, which brought together experts in policing issues and diversity from every

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region. A summary report on the expert meeting was submitted to the Human Rights Council as document A/HRC/10/38/Add.1.

V. Activities to take into account the views of non-governmental organizations 20) The independent expert places a high priority on her engagement with non-governmental organizations from all regions. She benefits greatly from the views and information provided by them in regard to all aspects of her work. 21) As part of her interaction with country and regional NGOs the independent expert attended the Regional Workshop on Minority Issues in Southeast Asia from 21 to 23 January 2008, held in Bangkok. The workshop was organized by the Asian Forum for Human Rights and Development (Forum-Asia) in cooperation with the International Movement Against All Forms of Discrimination and Racism (IMADR), and Minority Rights Group International (MRG). The workshop brought together some 30 representatives of minority communities and minority rights organizations in Southeast Asia engaged in the promotion and protection of minority rights. The objectives of the workshop included to promote awareness of the situations of minority groups in Southeast Asia; to identify issues and challenges in specific countries and the region as a whole; and to facilitate and strengthen networking among minority groups and human rights defenders working on minority issues in Southeast Asia. 22) The workshop was the first on the theme of minority issues to take place in the region. It considered minorities in the region in the context of numerous thematic issues including the right to culture; economic and development participation; health, education and the MDGs; political participation; and the situation of minority women. Country situation papers were presented on Cambodia, Indonesia, Laos, the Philippines, Thailand, Timor-Leste and Viet Nam. Concern was expressed by participants regarding the general situation of minorities and indigenous peoples in the Southeast Asia region. A statement issued by participating NGOs following the workshop made a number of recommendations to States in the region and highlighted a range of key challenges which include: a. Non-recognition of the diversity of ethnic, racial, religious and other identities within States in the region by national Governments; b. Laws and policies that discriminate against persons belonging to ethnic, national, religious or linguistic minorities, combined with the

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imposition of exclusivist national identities by States, often based on the ethnicity and identity of the ethnic majority; c. Statelessness and the denial or deprivation of citizenship of ethnic minorities, despite residence for generations within present-day State territory, causing the denial of essential rights and services; d. Disadvantaged situations - poverty, non-participation, exclusion, marginalization - generally being experienced by minorities and indigenous peoples; e. Lack of effective participation and representation in all stages of decision-making, as both an effect and cause of their already disadvantaged positions; f. The continuing serious situation faced by many minority women who face multiple discrimination, and the lack of integration of women and children’s concerns within existing national and international law and institutions that seek to address minority and indigenous issues; g. The need for effective State compliance with and domestic application of international human rights standards on minorities and indigenous peoples, including the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. 23) All States in the region were urged by the workshop participants to ratify the major United Nations human rights treaties, including the International Convention on the Elimination of All Forms of Racial Discrimination, and comply with obligations including in regard to timely reporting to treaty bodies. States were further requested to commit to engage with OHCHR and special procedures mandate holders, including the independent expert on minority issues. Members of ASEAN were called upon to develop effective terms of reference for an ASEAN human rights body as mentioned in the ASEAN Charter signed at the 13th ASEAN Summit in Singapore on 20 November 2007, in accordance with international human rights standards, with full and meaningful participation by civil society and, in particular, representatives of minorities and indigenous peoples.

VI. Forum on minority issues 24) In its resolution 6/15 of 28 September 2007, the Human Rights Council established a forum on minority issues, inter alia to provide a platform for promoting dialogue and cooperation on issues pertaining to national or ethnic, religious and linguistic minorities, as well as thematic contributions and expertise to the work of the independent expert on minority

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issues. The Forum is also required to identify and analyse best practices, challenges, opportunities and initiatives for the further implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. Resolution 6/15 in paragraph 5 decided that “the independent expert on minority issues shall guide the work of the Forum and prepare its annual meetings”. Furthermore it requested the President of the Human Rights Council to appoint for each session, on the basis of regional rotation and in consultation with regional groups, a chairperson of the Forum among experts on minority issues, nominated by members and observers of the Council. In accordance with this requirement, the President of the Human Rights Council appointed Ms. Viktória Mohácsi of Hungary and of Roma minority origin as the Chairperson of the first session of the Forum. The Chairperson is required to prepare “a summary of the discussion of the Forum, to be made available to all participants of the Forum”. The Chairperson is responsible for the preparation of a summary of the discussion of the Forum, which is available on the website of the Forum on Minority Issues.14 The inaugural session of the Forum took place on 15 and 16 December 2008 at the Palais des Nations in Geneva. The thematic focus of this first session of the Forum was “Minorities and the Right to Education”. The Forum was opened by the President of the Human Rights Council and opening remarks were made by the United Nations High Commissioner for Human Rights, the independent expert and the Chairperson of the Forum. The President of the Human Rights Council noted the Council’s willingness to provide a platform for promoting dialogue and cooperation on issues pertaining to persons belonging to national or ethnic, religious and linguistic minorities. This includes the sharing of best practices, challenges, opportunities and initiatives for the promotion of mutual understanding of minority issues. He stated that education is an issue which engages us all as we strive to promote and protect the rights of children from all communities, especially the most disadvantaged. The High Commissioner for Human Rights reflected that her personal and professional experience had led her to emphasize that education is both a human right in itself, as well as an indispensable instrument for achieving many other rights, whether civil, cultural, economic, political, or social. However, persons belonging to national, ethnic, religious and

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linguistic minorities disproportionately suffer the brunt of educational exclusion and are least integrated into national education systems, she stated. Members of minority groups all over the world face barriers in accessing education equally, including the lack of mother-tongue education; poor provision of schools and qualified teachers in the regions where they live; prohibitive costs of school fees that disproportionately affect them as the poorest groups; and curricula that do not reflect community priorities for learning. In her opening remarks, the independent expert stated that education is a fundamental human right of every man, woman and child. And yet in all regions of the world minority children suffer disproportionately from unequal access to quality education. Failure to ensure equal opportunities and equal access to education robs people of their full human potential and their ability to contribute fully to their own communities and to the wider society. Education provides a gateway to the full enjoyment of a wide array of other rights, without which individuals and societies remain economically, socially and culturally impoverished. Lack of access to education perpetuates the cycle of poverty that is experienced most acutely by minority communities facing discrimination and exclusion. Conversely, education provides a vital key to sustainable poverty alleviation. Ensuring equal access to education is one of the most serious challenges for minorities and States alike. Equal access to education must be understood in the holistic sense of the rights to non-discrimination and equality. Minorities often face systematic discrimination which creates blockages to their full enjoyment of their rights, including their right to education. To fully protect the right to education for those who have been subjected to historical systematic discrimination, we must go beyond issues of physical or economic accessibility to focus on the ultimate goal of equal access to quality education and to equal achievement outcomes. Disproportionate educational outcomes along racial, ethnic or religious lines must be considered evidence of discrimination that implicates State responsibility for the promotion and protection of these rights. The Durban Programme of Action urged States “to ensure equal access to education for all in law and in practice, and to refrain from any legal or any other measures leading to imposed racial segregation in any form in access to schooling”. We have also learned that enforced segregated schools not only violates the rights of minorities but also robs the entire society of its best opportunity to foster social cohesion and respect for a diversity of views and experiences.

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33) As required in resolution 6/15, the Forum achieved the active participation of representatives of Member States, United Nations mechanisms, bodies and specialized agencies, funds and programmes, intergovernmental organizations, regional organizations and mechanisms in the field of human rights, national human rights institutions and other relevant national bodies, academics and experts on minority issues, and NGOs. Over 370 individuals were accredited from all categories to participate in the Forum, including delegates from over 40 States, including several participants at ministerial and ambassador level. Some 90 NGOs were represented. 34) The views of experts and participants from minority communities were given a particularly high priority within the proceedings of the Forum. Several experts from each region were identified on the basis of criteria including their belonging to a minority group and their professional expertise in the field of education, particularly as it interfaces with the rights and experiences of minorities. Valuable insights were provided from such experts with professional and practical experience in working to promote equality in education and in the design and delivery of education solutions to address the needs of minorities. 35) Paragraph 6 of resolution 6/15 expresses the expectation that the Forum will contribute to the efforts of the United Nations High Commissioner for Human Rights to improve cooperation among United Nations mechanisms, bodies and specialized agencies, funds and programmes on activities related to the promotion and protection of the rights of persons belonging to minorities, including at regional level. Equally, the mandate of the independent expert requires her to cooperate closely, while avoiding duplication, with existing relevant United Nations bodies, mandates, and mechanisms. In view of these provisions, the independent expert engaged fully with such institutions early in her preparations in order to solicit their cooperation and substantive contributions. 36) She wishes to thank the following special rapporteurs and members of treaty bodies for their participation and contributions to the Forum, and welcomes their continued engagement: Mr. Vernor Munoz Villalobos, Special Rapporteur on the right to education; Mr. Prasad Kariyawasam, expert member of the Committee on Migrant Workers; Ms. Helen Keller, expert member of the Human Rights Committee; Mr. Lothar Krappmann, expert member of the Committee on the Rights of the Child; Mr. José Molintas, expert member of the Expert Mechanism on the Rights of Indigenous Peoples; Ms. Dubravka Šimonovic, chair and expert member of the Committee on the Elimination of Discrimination against Women; Mr. Patrick Thornberry, expert member of the Committee on

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the Elimination of Racial Discrimination; Ms. Barbara Wilson, expert member of the Committee on Economic, Social and Cultural Rights; and Ms. Mona Zulficar, expert member of the Human Rights Council Advisory Committee. 37) The independent expert will seek to continue and to enhance her consultation and cooperation with the chairs and expert members of relevant treaty bodies. She welcomes future opportunities to identify possibilities and modalities through which the recommendations of the Forum may become most useful to the work of treaty bodies, taking into account their established processes and working practices. The independent expert wishes to engage the treaty bodies including in regard to the extent to which the recommendations may benefit States and committees in regard to State reporting on issues relevant to minorities and the right to education. 38) The independent expert greatly welcomes and values the substantive engagement and participation of United Nations specialized agencies in the Forum, including UNESCO, UNICEF and UNDP. The Forum benefited in particular from the close collaboration of the independent expert with UNESCO, which in cooperation with the Organisation internationalepour le droit à l’éducation et la liberté de l’enseignement (OIDEL), held a thematic debate on “Overcoming Inequalities in Education: the Importance of Inclusion” as a side event for Forum participants during which they presented conclusions and recommendations of an international conference held on 25 November 2008 on the subject of inclusive education. The independent expert expects that substantive collaboration with relevant specialized agencies will continue to attract increased attention to minorities and the right to education within the scope of their work. The substantive engagement of specialized agencies in the shaping of the recommendations of the Forum will help to ensure that they are meaningful to their ongoing activities in the field. 39) The mandate of the independent expert requires her to cooperate closely, while avoiding duplication, with regional organizations. She therefore notes with appreciation the engagement and participation in the Forum of representatives of regional organizations including: the African Union, the Council of Europe Secretariat of the Framework Convention for the Protection of National Minorities, the Organization of the Islamic Conference and the OSCE High Commissioner on National Minorities. She notes the attention paid by these regional intergovernmental organizations to minority issues and the education rights of minorities. She greatly values the regional perspectives which they contributed. In addition, she welcomes the participation of representatives of national human

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rights institutions who were accredited participants, including those of Fiji, Mexico, the Philippines, Poland, Southern Sudan, Sweden, and Switzerland. 40) On the basis of the provisions of resolution 6/15 and in the wider context of promoting implementation of the Declaration in all regions, the focus of discussions was broadly based around three core elements: identification of challenges and problems facing minorities and States; identification of good practices in relation to minorities and education; and consideration of opportunities, initiatives and solutions. A set of draft recommendations was prepared and circulated prior to the Forum. The draft recommendations were developed in collaboration with Patrick Thornberry who was formally appointed as Rapporteur of the Forum. The draft further benefited from information, surveys and studies received by the independent expert. Participants were invited to target their contributions towards developing, improving and refining the draft as the subsequent outcome recommendations document. 41) Pursuant to the requirement for the independent expert to include in her report to the Human Rights Council thematic recommendations of the Forum, a series of recommendations emerged from the proceedings (see A/HRC/10/11/Add.1). The recommendations are intended for a wide readership of not only Governments but also international organizations and agencies, civil society, all educators and those who learn from them. They are phrased in broad terms with a view to their effective implementation in countries with diverse historical, cultural and religious backgrounds, with full respect for universal human rights. The range of issues included in the recommendations is not exhaustive. They represent only minimum requirements for an effective education strategy for minorities, without prejudice to further efforts made by individual States to address the needs of individuals and groups concerned. They should be interpreted in a generous spirit in cooperation with the communities, in the light of the demand that human rights instruments be interpreted and standards applied to be effective in practice, so that they can make a real difference to the lives of human beings. 42) Resolution 6/15 invites the independent expert to include in her annual report recommendations for future thematic subjects, for consideration by the Human Rights Council. Further to her consultations and taking into account the views of a variety of stakeholders, issues which are envisaged as future thematic subjects of the Forum by the independent expert include: minorities and political participation; minorities and the media; and minorities and development processes.

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*Recommendations of the 2008 Forum on Minorities Issues, on Minorities and the Right to Education I. Education 1. Education is an inalienable human right, and is more than a mere commodity or a service. Furthermore, education is a human right that is crucial to the realization of a wide array of other human rights, and an indispensable agency for the expansion of human capabilities and the enhancement of human dignity. Education plays a formative role in socialization for democratic citizenship and represents an essential support for community identity. It is also a primary means by which individuals and communities can sustainably lift themselves out of poverty and a means of helping minorities to overcome the legacies of historical injustice or discrimination committed against them. 2. The right to education is not in practice enjoyed equally by all. Minorities15 in various regions of the world suffer disproportionately from unequal or restricted access to quality education and inappropriate education strategies. Lack of education leads to denial of civil and political rights, including rights to freedom of movement and freedom of expression, and limits participation in the cultural, social and economic life of the State and in public affairs, such as in the exercise of voting rights. Lack of education also limits the enjoyment of economic, social and cultural rights, including rights to employment, health, housing and an adequate standard of living. Lack of education results in reticence to engage with law enforcement authorities, inhibiting access to remedies when human rights are violated. 3. Women and girl members of minority communities suffer disproportionately from lack of access to education and from high illiteracy levels.

15

The term “minorities” as used in the present recommendation should be understood as it is used in the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (General Assembly resolution 47/135), the commentary of the Working Group on Minorities to the Declaration (E/CN.4/Sub.2/AC.5/2005/2) and the first annual report of the independent expert on minority issues (E/CN.4/2006/74). It encompasses the persons and groups protected under the International Convention on the Elimination of All Forms of Racial Discrimination from discrimination based on race, colour, descent (caste), national or ethnic origin, citizen or non-citizen (General Assembly resolution 2106 (XX) ).

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Lack of education represents an absolute barrier to their progress and empowerment. Bad education strategies can violate human rights as much as good strategies enhance rights and freedoms. Unwanted assimilation imposed through the medium of education, or enforced social segregation generated through educational processes, are harmful to the rights and interests of minority communities and to the wider social interest. In the context of rights and obligations recognized at the level of the United Nations and regionally, education should serve the dual function of supporting the efforts of communities to self-development in economic, social and cultural terms while opening pathways by which they can function in the wider society and promote social harmony. The present recommendations, while framed as recommendations for Government action, are intended for a wider readership of not only Governments but, in the terms of the Universal Declaration of Human Rights, “every individual and every organ of society”, including international organizations and agencies, civil society in the widest sense, all educators and those who learn from them. The range of issues included in the recommendations is not exhaustive. They represent only minimum requirements for an effective education strategy for minorities, without prejudice to further efforts made by individual States to address the needs of individuals and groups concerned. The recommendations should be interpreted in a generous spirit in cooperation with the communities concerned, in the light of the demand that human rights instruments be interpreted and standards applied to be effective in practice, so that they can make a real difference to the lives of human beings. In the event of doubt or contestation with regard to their potential application, the principles should be interpreted in favour of members of minorities as bearers of rights but also as potential victims of educational deprivation. The recommendations are phrased in broad terms and can be implemented in countries with diverse historical, cultural and religious backgrounds, with full respect for universal human rights.

II. Core principles 9. Every person is entitled to accessible, free and high-quality primary level education. States should take reasonable legislative and other measures to achieve the progressive realization of this right with respect to secondary education and for higher education on the basis of capacity. The right to

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education for all is grounded in universal and regional human rights instruments, including instruments on minority rights. The core principles of international human rights are fully applicable to the right to education and should be faithfully implemented by States. These include the principles of equality and non-discrimination, as well as the principle of equality of women and men in the enjoyment of all human rights and fundamental freedoms. The principle of non-discrimination includes all persons of school age residing in the territory of a State, including non nationals, and irrespective of their legal status. 10. School policies or practices that, de jure or de facto, segregate students into different groups based on minority status violate the rights of minorities and also rob the entire society of its best opportunity to foster social cohesion and respect for a diversity of views and experiences. Students and societies gain the greatest educational advantage when classrooms have a diversity of students, ethnically, culturally and economically. 11. The principle of equality does not imply uniform treatment in the field of education regardless of circumstances, but rather that differential treatment of individuals and groups is justified when specified circumstances warrant it, so that the right to equal treatment is also violated when States, without permissible justification, fail to treat differently persons whose situations are significantly different. The principle of non-discrimination implies that persons belonging to minorities should not be treated differently in the field of education solely on the basis of their particular ethnic, religious or cultural characteristics, unless there are permissible criteria to justify such distinctions, including criteria set out in specific instruments on minority rights. National and local contexts are important in the detailed application of educational responsibilities and Governments enjoy a margin of appreciation in applying the principles to particular contexts. 12. Principles of equality and non-discrimination permit the taking of special temporary measures. Such measures are mandatory when the conditions for their application are satisfied. Special measures or affirmative action should be used, for instance, as a means for Governments to recognize the existence of structural discrimination and to combat it. The case of special measures or affirmative action should not be confused with minority or indigenous rights to existence and identity that subsist as long as the individuals and communities concerned desire the continued application of these rights. Measures taken in the field of education for minorities should not constitute a programme of coerced or artificial assimilation.

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13. Education for all students should have an intercultural approach that recognizes and values cultural diversity. There must be a development of intercultural and anti-racist capacity within educational institutions at every level and informing all policies. 14. Minorities have a right to participate in the life of the State and in decisions affecting them and their children’s future. In the field of education, this right implies input by minorities into the design, implementation, monitoring and evaluation of education programmes and the administration of educational institutions. It also means that an alternative to mainstream curricula may be considered in order to meet the needs, aspirations and priorities of minorities. 15. The responsibilities of the State to fulfil the rights to education and to non-discrimination are not diluted on account of the complexities of political structures: the responsibilities extend in principle to the whole of the State territory. Governments must make strenuous efforts to ensure that national policies are not subverted or defied by local authorities in States with domestic constitutional arrangements, such as decentralized authority or devolution of powers. 16. States should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue. These measures are most critical in preschool and primary schools, but may extend to subsequent stages of education. School curricula must encourage knowledge among all students of the history, traditions, language and culture of the minorities existing within their territory and also ensure minorities adequate opportunities to gain knowledge of the society as a whole. 17. In the field of education and minorities, there is a compelling need for accurate data that are qualitative and quantitative, disaggregated by sex, race, ethnicity and disability status in order to assess the necessary requirements in the development, institutionalization, implementation and monitoring of targeted education policies. Data should also be gathered on poverty status and on the access to education and progress of children who do not speak the dominant language. Indicators and benchmarks are necessary for the accurate appraisal of education policies, including assessments of the extent of discrimination against minorities and the success or failure of policies to eliminate discrimination. Such data should include research into causes of poor school enrolment and drop-out rates where applicable. Disaggregation of the data according to sex will expose the barriers that prevent girls and women from accessing education and

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learning. All data should be made accessible to the public on a regular basis. 18. Data-gathering exercises concerning minorities should take place in a culturally sensitive manner, on a voluntary basis, with full respect for the privacy and anonymity of the individuals concerned, and on the basis of their self-identification as members of groups concerned.

III. Essential requirements for an effective education strategy 19. States should approach the education of minorities in a positive spirit. Measures should be taken by States to implement education rights actively to the maximum of their available resources, individually and through international assistance and cooperation. 20. States should review, enact and amend their legislation where necessary to affirm the right to education for all, eliminate discrimination and guarantee quality education for all members of minorities. 21. States should create conditions enabling institutions that are representative of minorities to participate in a meaningful way in the development and implementation of policies and programmes relating to education for minorities. 22. Budgetary policies are crucial to a State’s implementation of its obligations to respect, protect and fulfil the educational rights of minorities. In the drafting of budgets for education in the case of minorities, clear criteria that are tailored to the special needs of the minority group are required. The costing and financing of education policies should be based on a holistic appraisal of minority needs and on the basis of the State’s immediate and non-derogable obligation to guarantee that the right to education will be exercised without discrimination and on the basis of the principle of equal treatment. The principle of equal treatment entails the allocation of extra resources and efforts to advance the right to education among minority groups that have been victims of historical injustices or discrimination in realizing their right to education. 23. Budgetary allocations for education should be transparent and amenable to external scrutiny. Budgets should be presented in a form that allows assessment of the allocations disaggregated according to minority status and sex, rendering transparent the targeting of special measures for minority girls and minority boys. 24. Programmes for the education of minorities, as well as teachers and appropriate teaching and reading materials, including books, must be made available in the mother tongues of the minorities.

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25. Educational services should be arranged in order that they reach minority communities throughout the national territory, and should be adequate to address the needs of such communities. States must ensure that educational services for minorities are delivered at a quality that is comparable with national standards. 26. States should recognize that the adequate recruitment, training and incentivization of teachers to work in areas inhabited predominantly by members of minorities are factors of utmost importance in the delivery of adequate educational services, and should arrange teacher training programmes accordingly. 27. State or local policies or practices that, de jure or de facto, result in separate classes or schools for minority pupils, or schools or classes with grossly disproportionately high numbers of minority pupils, on a discriminatory basis, are prohibited, except in limited and exceptional circumstances. In particular, the misuse of psychological or learning ability tests for enrolment of children in primary schools must be subjected to close scrutiny with respect to their potential to engender discriminatory outcomes. The creation and development of classes and schools providing education in minority languages should not be considered impermissible segregation, if the assignment to such classes and schools is of a voluntary nature. However, where separate educational institutions are established for minorities for linguistic, religious or cultural reasons, no barriers should be erected to prevent members of minority groups from studying at general educational institutions, should they or their families so wish. 28. Education should be available at all levels for minorities, from preschool to tertiary education, as should technical and vocational education, on a basis of equality with other learners.

IV. Equal access to quality education for minorities 29. The principle of non-discrimination is a key to securing equal access to education, and ensuring ongoing participation and completion of quality education for members of disadvantaged and minority groups. 30. Members of minorities must have realistic and effective access to quality educational services, without discrimination, within the jurisdiction of the State. Accessibility has three overlapping dimensions: non-discrimination on prohibited grounds; physical accessibility; and economic accessibility. 31. Barriers to accessibility may be the result of single or multiple factors, whether physical or social, financial or pedagogical. States should address

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all such factors in order to promote effective access, especially in cases where barriers to access are compounded, as in the case of girl pupils, resulting in a vicious circle leading to severe educational exclusion. The existence of local customs that restrict the free movement of girls and women does not relieve the State of its responsibility to guarantee access to education for minority girls. Special attention to education is called for in the context of emergencies, armed conflicts and natural disasters when children of minorities or vulnerable populations do not have access to social protection and essential services, including education. Measures should be taken to avoid discrimination and favouritism during these periods and during periods of recovery and rehabilitation. Authorities should remove direct and indirect institutional barriers to education for minorities, and address cultural, gender and linguistic barriers that may have equivalent access-denying effects. In order to ensure effective access to education for members of minority communities, authorities should take immediate and positive steps to remove impediments resulting from poverty and child labour, homelessness, low nutrition levels, poor health and sanitation among the communities, as well as impediments that result from a policy of historical discrimination or injustice in realizing the right to education. Difficulties in school enrolment and retention for displaced persons, members of nomadic or semi-nomadic groups, migrant workers and their children, both girls and boys, should be addressed in a proactive and constructive manner. Lack of documentation should not prevent pupils from enrolling in schools. Enrolment and registration formalities and cost burdens should be eased to facilitate the admission of minority pupils into schools; such inhibiting factors may be a matter of deepened concern in relation to the admission of girl pupils. Resources should be sufficient to guarantee that the education of their children is a financially viable proposition for minority families. The impact of residential patterns on school enrolments should be carefully assessed and addressed to avoid disparate social and educational outcomes. Authorities should pay attention to the location of schools so that minority pupils are not disadvantaged with respect to physical access to school buildings or the quality of educational outcomes. States should carefully monitor and take positive and effective steps to reduce high rates of exclusion and dropouts among minority students and to, de minimis, align them with rates of the majority population, in cooperation with parents, associations and communities. States should take

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effective steps to bring down any barriers to education, be they cultural, social, economic or of any other nature, that lead to high drop-out rates. 40. States should ensure equal access to education for women and girls from minority groups, upon whom poverty and family responsibilities may have a disproportionate impact, and who may be subject also to aggravated discrimination, including in extreme cases violence, on the basis of culture, gender or caste. 41. Affirmative action in education for members of minorities that have been subject to a policy of historical discrimination or injustices in realizing the right to education should extend to higher education, where the cumulative impact of discrimination at the lower levels of ducation often results in low levels of representation of members of minority groups in the later stages of education, whether as pupils or education professionals. 42. Programmes of adult education or “second chance” schools should be encouraged and increased for members of minorities who have not completed primary education levels.

V. Learning environment 43. Education should work actively towards the elimination of prejudices among population groups and the promotion of mutual respect, understanding and tolerance among all persons residing in the State, whatever their ethnic, religious or cultural background or sex. 44. Human rights education for all should be made an integral part of the national educational experience. 45. Teaching staff should be provided with initial and ongoing training preparing them to respond to the needs of pupils from a variety of backgrounds. 46. Teacher training, including training of teachers from minority communities, should include anti-discrimination, gender sensitive and intercultural training. 47. States should strive to ensure that the school learning environment for members of minorities is welcoming and receptive to their needs and concerns. 48. Systems of recording racist or similar incidents targeting minorities and policies to eliminate such incidents should be developed in school systems. 49. Disciplinary actions taken against students should be proportionate, fair and immune from any perception of bias against minority students.

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Positive disciplinary practices that do not conflict with the primary goals of student retention and educational outcomes should be employed. Disciplinary actions must respect the rights of parents to be fully informed, to participate in the decision-making process and to seek outside mediation. States should act to remedy situations where there is a lack of trained teachers who speak minority languages. States should actively strive to recruit and train teachers from minority communities, both men and women, at all levels of education as a key aspect of a strategy to develop a multicultural ethos in schools. School management and administration should actively involve representatives from minority communities. States should promote and systematize active consultation and cooperation between parents of children of minorities and the school authorities, including, where appropriate, through the employment of mediators to improve parent-school communication, and interpreters where parents do not speak the language of the school administration.

VI. Content and delivery of the curriculum 54. The form and substance of education, including curricula and teaching methods, must be acceptable to parents and children as relevant, culturally appropriate and of a quality equal to national standards. 55. The liberty of parents or legal guardians to choose educational institutions for their children other than those established by the authorities of the State and to ensure the religious and moral education of their children in conformity with their own convictions must be recognized. Such alternative institutions must comply, however, with the “minimum education standards as may be laid down or approved by the State”.16 Any State financing of non-State chools must be provided to all such schools on an equal basis. States should ensure that all parents are informed about the right to choose alternative educational institutions. 56. With regard to the right to manifest religion in schools or educational institutions, forums for continuous dialogue should be developed where necessary between members of religious minorities and educational institutions that serve them with the view to better understanding and accommodating their religious needs within schools.

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International Covenant on Economic, Social and Cultural Rights, art. 13, para. 3.

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57. In cases where members of minorities establish their own educational institutions, their right to do so should not be exercised in a manner that prevents them from understanding the culture and language of the national community as a whole and from participating in its activities. 58. States should provide adequate opportunities to persons belonging to minorities to learn their mother tongue or to learn through the medium of the mother tongue, alternatives which should not be understood as mutually exclusive. Specific forms of such opportunities should be chosen in consultation with persons belonging to minorities and taking into account their freely expressed wishes. 59. School language regimes for the initial stages of education in State schools should ideally employ the language of the child as the predominant medium of instruction, with a gradual introduction of the State language or dominant local language, if different from that of the child, at a later stage, where possible by bilingual teachers sensitive to the cultural backgrounds of minority children. 60. Education should be able to adapt to the situation of changing societies and communities and be responsive to the needs of students in diverse social and cultural settings. A diversity of learning systems should be considered so that quality formal and non-formal education that is contextualized, culture specific and relevant within an integrated system of education may be delivered. 61. Curricula should adequately reflect the diversity and plurality of society and the contribution of minorities to society. 62. Curricula should promote the preservation and defence of minority languages, and identify and equip members of minorities with the educational tools necessary for their full participation in the society concerned. 63. Curricula relating to minorities should be developed in cooperation with bodies representative of minorities, and members of minority groups should, ideally, be in positions of influence in education ministries or other authorities deciding upon curricula. 64. State education authorities should ensure that the general compulsory curriculum for all in the State includes teaching of the history, culture and traditions of the minorities from the perspective of the minorities themselves. States should take measures to teach the community narratives of minorities to other groups. 65. The promotion of the cultural rights of minorities is necessary to further the fulfilment of their educational rights. These rights include access to written, audio and visual media materials in their own language in order to enrich the cultural lives of minorities. There must also be the free

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exchange of books and other educational materials and access to universities run by members of their national group in other States.17 66. Educational curricula should not include materials that stereotype or demean minorities, including compounded stereotyping of minority girls and women on the basis of both their national or ethnic belonging and their sex. Teachers and other education personnel should avoid the use of offensive names for an individual or a community or names not freely chosen by the individual or community concerned. Educational curricula taught to non-minority groups within the State should include materials designed to reduce stereotypes and racist attitudes towards minorities. 67. Members of the general population should have the opportunity to learn minority languages and thereby contribute to the strengthening of tolerance and cultural interchange within the State.

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This provision is in accordance with article 2, paragraph 5, of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.

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Treaty Bodies Recommendations *CERD/C General Recommendation No. 25: Gender related dimensions of racial discrimination: 20/03/2000. Gen. Rec. No. 25. (General Comments) Gender Related Dimensions of Racial Discrimination 1. The Committee notes that racial discrimination does not always affect women and men equally or in the same way. There are circumstances in which racial discrimination only or primarily affects women, or affects women in a different way, or to a different degree than men. Such racial discrimination will often escape detection if there is no explicit recognition or acknowledgement of the different life experiences of women and men, in areas of both public and private life. 2. Certain forms of racial discrimination may be directed towards women specifically because of their gender, such as sexual violence committed against women members of particular racial or ethnic groups in detention or during armed conflict; the coerced sterilization of indigenous women; abuse of women workers in the informal sector or domestic workers employed abroad by their employers. Racial discrimination may have consequences that affect primarily or only women, such as pregnancy resulting from racial bias-motivated rape; in some societies women victims of such rape may also be ostracized. Women may also be further hindered by a lack of access to remedies and complaint mechanisms for racial discrimination because of gender-related impediments, such as gender bias in the legal system and discrimination against women in private spheres of life. 3. Recognizing that some forms of racial discrimination have a unique and specific impact on women, the Committee will endeavour in its work to take into account gender factors or issues which may be interlinked with racial discrimination. The Committee believes that its practices in this regard would benefit from developing, in conjunction with the States parties, a more systematic and consistent approach to evaluating and monitoring racial discrimination against women, as well as the disadvantages, obstacles and difficulties women face in the full exercise and enjoyment of their civil, political, economic, social and cultural rights on grounds of race, colour, descent, or national or ethnic origin.

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4. Accordingly, the Committee, when examining forms of racial discrimination, intends to enhance its efforts to integrate gender perspectives, incorporate gender analysis, and encourage the use of gender-inclusive language in its sessional working methods, including its review of reports submitted by States parties, concluding observations, early warning mechanisms and urgent action procedures, and general recommendations. 5. As part of the methodology for fully taking into account the gender-related dimensions of racial discrimination, the Committee will include in its sessional working methods an analysis of the relationship between gender and racial discrimination, by giving particular consideration to: a) The form and manifestation of racial discrimination; b) The circumstances in which racial discrimination occurs; c) The consequences of racial discrimination; and d) The availability and accessibility of remedies and complaint mechanisms for racial discrimination. 6. Noting that reports submitted by States parties often do not contain specific or sufficient information on the implementation of the Convention with respect to women, States parties are requested to describe, as far as possible in quantitative and qualitative terms, factors affecting and difficulties experienced in ensuring the equal enjoyment by women, free from racial discrimination, of rights under the Convention. Data which have been categorized by race or ethnic origin, and which are then disaggregated by gender within those racial or ethnic groups, will allow the States parties and the Committee to identify, compare and take steps to remedy forms of racial discrimination against women that may otherwise go unnoticed and unaddressed.

*The Committee on the Elimination of Racial Discrimination, General Recommendation No. 30: Discrimination Against Non Citizens: 01/10/2004. Gen. Rec. No. 30. (General Comments) Recalling the Charter of the United Nations and the Universal Declaration of Human Rights, according to which all human beings are born free and equal

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in dignity and rights and are entitled to the rights and freedoms enshrined therein without distinction of any kind, and the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination, Recalling the Durban Declaration in which the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, recognized that xenophobia against non-nationals, particularly migrants, refugees and asylum-seekers, constitutes one of the main sources of contemporary racism and that human rights violations against members of such groups occur widely in the context of discriminatory, xenophobic and racist practices, Noting that, based on the International Convention on the Elimination of All Forms of Racial Discrimination and general recommendations XI and XX, it has become evident from the examination of the reports of States parties to the Convention that groups other than migrants, refugees and asylum-seekers are also of concern, including undocumented non-citizens and persons who cannot establish the nationality of the State on whose territory they live, even where such persons have lived all their lives on the same territory, Having organized a thematic discussion on the issue of discrimination against non-citizens and received the contributions of members of the Committee and States parties, as well as contributions from experts of other United Nations organs and specialized agencies and from non-governmental organizations, Recognizing the need to clarify the responsibilities of States parties to the International Convention on the Elimination of All Forms of Racial Discrimination with regard to non-citizens, Basing its action on the provisions of the Convention, in particular article 5, which requires States parties to prohibit and eliminate discrimination based on race, colour, descent, and national or ethnic origin in the enjoyment by all persons of civil, political, economic, social and cultural rights and freedoms, Affirms that:

I. Responsibilities of states parties to the convention 1. Article 1, paragraph 1, of the Convention defines racial discrimination. Article 1, paragraph 2 provides for the possibility of differentiating between citizens and non-citizens. Article 1, paragraph 3 declares that, concerning

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nationality, citizenship or naturalization, the legal provisions of States parties must not discriminate against any particular nationality; Article 1, paragraph 2, must be construed so as to avoid undermining the basic prohibition of discrimination; hence, it should not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in particular in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights; Article 5 of the Convention incorporates the obligation of States parties to prohibit and eliminate racial discrimination in the enjoyment of civil, political, economic, social and cultural rights. Although some of these rights, such as the right to participate in elections, to vote and to stand for election, may be confined to citizens, human rights are, in principle, to be enjoyed by all persons. States parties are under an obligation to guarantee equality between citizens and non-citizens in the enjoyment of these rights to the extent recognized under international law; Under the Convention, differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim. Differentiation within the scope of article 1, paragraph 4, of the Convention relating to special measures is not considered discriminatory; States parties are under an obligation to report fully upon legislation on non-citizens and its implementation. Furthermore, States parties should include in their periodic reports, in an appropriate form, socio-economic data on the non-citizen population within their jurisdiction, including data disaggregated by gender and national or ethnic origin;

Recommends, Based on these general principles, that the States parties to the Convention, as appropriate to their specific circumstances, adopt the following measures:

II. Measures of a general nature 6. Review and revise legislation, as appropriate, in order to guarantee that such legislation is in full compliance with the Convention, in particular regarding the effective enjoyment of the rights mentioned in article 5, without discrimination;

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7. Ensure that legislative guarantees against racial discrimination apply to non-citizens regardless of their immigration status, and that the implementation of legislation does not have a discriminatory effect on noncitizens; 8. Pay greater attention to the issue of multiple discrimination faced by noncitizens, in particular concerning the children and spouses of non-citizen workers, to refrain from applying different standards of treatment to female non-citizen spouses of citizens and male non-citizen spouses of citizens, to report on any such practices and to take all necessary steps to address them; 9. Ensure that immigration policies do not have the effect of discriminating against persons on the basis of race, colour, descent, or national or ethnic origin; 10. Ensure that any measures taken in the fight against terrorism do not discriminate, in purpose or effect, on the grounds of race, colour, descent, or national or ethnic origin and that non-citizens are not subjected to racial or ethnic profiling or stereotyping;

III. Protection against hate speech and racial violence 11. Take steps to address xenophobic attitudes and behaviour towards noncitizens, in particular hate speech and racial violence, and to promote a better understanding of the principle of non-discrimination in respect of the situation of non-citizens; 12. Take resolute action to counter any tendency to target, stigmatize, stereotype or profile, on the basis of race, colour, descent, and national or ethnic origin, members of “non-citizen” population groups, especially by politicians, officials, educators and the media, on the Internet and other electronic communications networks and in society at large;

IV. Access to citizenship 13. Ensure that particular groups of non-citizens are not discriminated against with regard to access to citizenship or naturalization, and to pay due attention to possible barriers to naturalization that may exist for longterm or permanent residents; 14. Recognize that deprivation of citizenship on the basis of race, colour, descent, or national or ethnic origin is a breach of States parties’ obligations to ensure non-discriminatory enjoyment of the right to nationality;

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15. Take into consideration that in some cases denial of citizenship for longterm or permanent residents could result in creating disadvantage for them in access to employment and social benefits, in violation of the Convention’s anti-discrimination principles; 16. Reduce statelessness, in particular statelessness among children, by, for example, encouraging their parents to apply for citizenship on their behalf and allowing both parents to transmit their citizenship to their children; 17. Regularize the status of former citizens of predecessor States who now reside within the jurisdiction of the State party;

V. Administration of justice 18. Ensure that non-citizens enjoy equal protection and recognition before the law and in this context, to take action against racially motivated violence and to ensure the access of victims to effective legal remedies and the right to seek just and adequate reparation for any damage suffered as a result of such violence; 19. Ensure the security of non-citizens, in particular with regard to arbitrary detention, as well as ensure that conditions in centres for refugees and asylum-seekers meet international standards; 20. Ensure that non-citizens detained or arrested in the fight against terrorism are properly protected by domestic law that complies with international human rights, refugee and humanitarian law; 21. Combat ill-treatment of and discrimination against non-citizens by police and other law enforcement agencies and civil servants by strictly applying relevant legislation and regulations providing for sanctions and by ensuring that all officials dealing with non-citizens receive special training, including training in human rights; 22. Introduce in criminal law the provision that committing an offence with racist motivation or aim constitutes an aggravating circumstance allowing for a more severe punishment; 23. Ensure that claims of racial discrimination brought by non-citizens are investigated thoroughly and that claims made against officials, notably those concerning discriminatory or racist behaviour, are subject to independent and effective scrutiny; 24. Regulate the burden of proof in civil proceedings involving discrimination based on race, colour, descent, and national or ethnic origin so that once a non-citizen has established a prima facie case that he or she has

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been a victim of such discrimination, it shall be for the respondent to provide evidence of an objective and reasonable justification for the differential treatment;

VI. Expulsion and deportation of non-citizens 25. Ensure that laws concerning deportation or other forms of removal of non-citizens from the jurisdiction of the State party do not discriminate in purpose or effect among non-citizens on the basis of race, colour or ethnic or national origin, and that non-citizens have equal access to effective remedies, including the right to challenge expulsion orders, and are allowed effectively to pursue such remedies; 26. Ensure that non-citizens are not subject to collective expulsion, in particular in situations where there are insufficient guarantees that the personal circumstances of each of the persons concerned have been taken into account; 27. Ensure that non-citizens are not returned or removed to a country or territory where they are at risk of being subject to serious human rights abuses, including torture and cruel, inhuman or degrading treatment or punishment; 28. Avoid expulsions of non-citizens, especially of long-term residents, that would result in disproportionate interference with the right to family life;

VII. Economic, social and cultural rights 29. Remove obstacles that prevent the enjoyment of economic, social and cultural rights by non-citizens, notably in the areas of education, housing, employment and health; 30. Ensure that public educational institutions are open to non-citizens and children of undocumented immigrants residing in the territory of a State party; 31. Avoid segregated schooling and different standards of treatment being applied to non-citizens on grounds of race, colour, descent, and national or ethnic origin in elementary and secondary school and with respect to access to higher education; 32. Guarantee the equal enjoyment of the right to adequate housing for citizens and non-citizens, especially by avoiding segregation in housing and

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ensuring that housing agencies refrain from engaging in discriminatory practices; Take measures to eliminate discrimination against non-citizens in relation to working conditions and work requirements, including employment rules and practices with discriminatory purposes or effects; Take effective measures to prevent and redress the serious problems commonly faced by non-citizen workers, in particular by non-citizen domestic workers, including debt bondage, passport retention, illegal confinement, rape and physical assault; Recognize that, while States parties may refuse to offer jobs to noncitizens without a work permit, all individuals are entitled to the enjoyment of labour and employment rights, including the freedom of assembly and association, once an employment relationship has been initiated until it is terminated; Ensure that States parties respect the right of non-citizens to an adequate standard of physical and mental health by, inter alia, refraining from denying or limiting their access to preventive, curative and palliative health services; Take the necessary measures to prevent practices that deny non-citizens their cultural identity, such as legal or de facto requirements that noncitizens change their name in order to obtain citizenship, and to take measures to enable non-citizens to preserve and develop their culture; Ensure the right of non-citizens, without discrimination based on race, colour, descent, and national or ethnic origin, to have access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafés, theatres and parks; The present general recommendation replaces general recommendation XI (1993).

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*CEDAW General recommendation No. 26 on women migrant workers18 Introduction 1. The Committee on the Elimination of Discrimination against Women (the Committee), affirming that migrant women, like all women, should not be discriminated against in any sphere of their life, decided at its thirty-second session (January 2005), pursuant to article 21 of the Convention on the Elimination of All Forms of Discrimination against Women (the Convention), to issue a general recommendation on some categories of women migrant workers who may be at risk of abuse and discrimination.19 2. This general recommendation intends to contribute to the fulfilment of the obligations of States parties to respect, protect and fulfil the human rights of women migrant workers, alongside the legal obligations contained in other treaties, the commitments made under the plans of action of world conferences and the important work of migration-focused treaty bodies, especially the Committee on the Protection of the Rights of All Migrant

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The Committee acknowledges the contribution of the Committee on the Protection of the Rights of All Migrant workers and Members of their Families during the preparation of this general recommendation. The Committee on the Elimination of Discrimination against Women acknowledges and seeks to build on the important work on the rights of migrants completed by the other human right treaty bodies, the Special Rapporteur on the Human Rights of Migrants, the United Nations Development Fund for Women, the Division for the Advancement of Women, the Commission on the Status of Women, the General Assembly, and the Sub-Commission on the Promotion and Protection of Human Rights. The Committee also refers to its earlier general recommendations, such as general recommendation No. 9 on the gathering of statistical data on the situation of women, especially general recommendation No. 12 on violence against women, general recommendation No. 13 on equal remuneration for work of equal value, general recommendation No. 15 on the avoidance of discrimination against women in national strategies for the prevention and control of acquired immunodeficiency syndrome (AIDS), general recommendation No. 19 on violence against women and general recommendation No. 24 on women’s access to health care, as well as the concluding comments made by the Committee when examining the reports of States parties.

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Workers and Members of their Families.20 While the Committee notes that the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families protects individuals, including migrant women, on the basis of their migration status, the Convention on the Elimination of All Forms of Discrimination against Women protects all women, including migrant women, against sex- and gender-based discrimination. While migration presents new opportunities for women and may be a means for their economic empowerment through wider participation, it may also place their human rights and security at risk. Hence, this general recommendation aims to elaborate the circumstances that contribute to the specific vulnerability of many women migrant workers and their experiences of sex- and gender-based discrimination as a cause and consequence of the violations of their human rights. 3. While States are entitled to control their borders and regulate migration, they must do so in full compliance with their obligations as parties to the human rights treaties they have ratified or acceded to. That includes the promotion of safe migration procedures and the obligation to respect, protect and fulfil the human rights of women throughout the migration cycle. Those obligations must be undertaken in recognition of the social and economic contributions of women migrant workers to their own countries and countries of destination, including through caregiving and domestic work. 4. The Committee recognizes that migrant women may be classified into various categories relating to the factors compelling migration, the purposes of migration and accompanying tenure of stay, the vulnerability to risk and abuse, and their status in the country to which they have migrated, and their eligibility for citizenship. The Committee also recognizes that these categories remain fluid and overlapping, and that therefore it is sometimes difficult to draw clear distinctions between the various categories. Thus, the scope of this general recommendation is limited to addressing the situations of the following categories of migrant women who, as workers, are

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Besides treaties and conventions, the following programmes and plans of action are applicable. The United Nations Vienna Declaration and Programme of Action approved at the 1993 World Conference on Human Rights (part II, paras. 33 and 35). Programme of Action of the Cairo International Conference on Population and Development (chapter X). Programme of Action of the World Summit for Social Development (chap. 3). Beijing Declaration and Platform for Action, Fourth World Conference on Women, World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance August-September 2001. International Labour Organization Plan of Action for Migrant Workers, 2004.

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in low-paid jobs, may be at high risk of abuse and discrimination and who may never acquire eligibility for permanent stay or citizenship, unlike professional migrant workers in the country of employment. As such, in many cases, they may not enjoy the protection of the law of the countries concerned, at either de jure or de facto levels. These categories of migrant women are:21 a) Women migrant workers who migrate independently; b) Women migrant workers who join their spouses or other members of their families who are also workers; c) Undocumented22 women migrant workers who may fall into any of the above categories. The Committee, however, emphasizes that all categories of women migrants fall within the scope of the obligations of States parties to the Convention and must be protected against all forms of discrimination by the Convention. 5. Although both men and women migrate, migration is not a gender-neutral phenomenon. The position of female migrants is different from that of male migrants in terms of legal migration channels, the sectors into which they migrate, the forms of abuse they suffer and the consequences thereof. To understand the specific ways in which women are impacted, female migration should be studied from the perspective of gender inequality, traditional female roles, a gendered labour market, the universal prevalence of gender-based violence and the worldwide feminization of poverty and labour migration. The integration of a gender perspective is, therefore,

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This general recommendation deals only with the work-related situation of women migrants. While it is a reality that in some instances women migrant workers may become victims of trafficking due to various degrees of vulnerability they face, this general recommendation will not address the circumstances relating to trafficking. The phenomenon of trafficking is complex and needs more focused attention. The Committee is of the opinion that this phenomenon can be more comprehensively addressed through article 6 of the Convention which places an obligation on States parties “to take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women”. The Committee emphasizes however, that many elements of the present general recommendation are also relevant in situations where women migrants have been victims of trafficking. Undocumented workers are those migrant workers who are without a valid residence or work permit. There are many circumstances under which this could have happened. For example, they may have been given false papers by unscrupulous agents or they may have entered the country with a valid work permit, but may have subsequently lost it because the employer may have arbitrarily terminated their services, or become undocumented because employers may have confiscated their passports. Sometimes workers may have extended their stay after the expiry of the work permit or entered the country without valid papers.

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essential to the analysis of the position of female migrants and the development of policies to counter discrimination exploitation and abuse.

Applying principles of human rights and gender equality 6. All women migrant workers are entitled to the protection of their human rights, which include the right to life, the right to personal liberty and security, the right not to be tortured, the right to be free of degrading and inhumane treatment, the right to be free from discrimination on the basis of sex, race, ethnicity, cultural particularities, nationality, language, religion or other status, the right to be free from poverty, the right to an adequate standard of living, the right to equality before the law and the right to benefit from the due processes of the law. These rights are provided for in the Universal Declaration of Human Rights and the many human rights treaties ratified or acceded to by States Members of the United Nations. 7. Women migrant workers are also entitled to protection from discrimination on the basis of the Convention, which requires States parties to take all appropriate measures without delay to eliminate all forms of discrimination against women and to ensure that they will be able to exercise and enjoy de jure and de facto rights on an equal basis with men in all fields.

Factors influencing women’s migration 8. Women currently make up about one half of the world’s migrant population. Various factors, such as globalization, the wish to seek new opportunities, poverty, gendered cultural practices and gender-based violence in countries of origin, natural disasters or wars and internal military conflicts determine women’s migration. These factors also include the exacerbation of sex-specific divisions of labour in the formal and informal manufacturing and service sectors in countries of destination, as well as a male-centred culture of entertainment, the latter creating a demand for women as entertainers. A significant increase in the number of women migrating alone as wage earners has been widely noted as part of this trend.

Sex- and gender-based human rights concerns related to migrant women 9. Because violations of the human rights of women migrant workers occur in countries of origin, countries of transit and countries of destination, this

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general recommendation will address all three situations in order to facilitate the use of the Convention, further the rights of women migrant workers and advance substantive equality of women and men in all spheres of their lives. It is also recalled that migration is an inherently global phenomenon, requiring cooperation among States in multilateral, bilateral and regional levels. In countries of origin before departure 10. Even before they leave home, women migrant workers face myriad human rights concerns, including complete bans or restrictions on women’s out-migration based on sex or sex combined with age, marital status, pregnancy or maternity status, occupation-specific restrictions or requirements that women must have written permission from male relatives to obtain a passport to travel or migrate. Women are sometimes detained by recruiting agents for training in preparation for departure, during which time they may be subject to financial, physical, sexual or psychological abuse. Women may also suffer the consequences of restricted access to education, training and reliable information on migration, which may lead to increased vulnerability in relation to employers. Exploitative fees may be charged by employment agents, which sometimes cause women, who generally have fewer assets than men, to suffer greater financial hardships and make them more dependent, for example, if they need to borrow from family, friends, or moneylenders at usurious rates. In countries of origin upon return 11. Women migrant workers may face sex- and gender-based discrimination, including compulsory HIV and AIDS testing for women returnees, moral “rehabilitation” for young women returnees and increased personal and social costs compared to men, without adequate gender-responsive services. For example, men may return to a stable family situation, whereas women may find disintegration of the family upon their return, with their absence from home regarded as the cause of such disintegration. There may also be a lack of protection against reprisals from exploitative recruiting agents. In countries of transit 12. Women migrant workers may face a variety of human rights concerns when transiting through foreign countries. When travelling with an agent or escort, women migrants may be abandoned if the agent encounters problems in transit or upon arrival in the country of destination. Women

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are also vulnerable to sexual and physical abuse by agents and escorts when travelling in countries of transit. In countries of destination 13. Once they reach their destinations, women migrant workers may encounter multiple forms of de jure and de facto discrimination. There are countries whose Governments sometimes impose restrictions or bans on women’s employment in particular sectors. Whatever the situation, women migrant workers face additional hazards compared to men because of gender-insensitive environments that do not allow mobility for women, and that give them little access to relevant information about their rights and entitlements. Gendered notions of appropriate work for women result in job opportunities that reflect familial and service functions ascribed to women or that are in the informal sector. Under such circumstances, occupations in which women dominate are, in particular, domestic work or certain forms of entertainment. 14. In addition, in countries of destination, such occupations may be excluded from legal definitions of work, thereby depriving women of a variety of legal protections. In such occupations, women migrant workers have trouble obtaining binding contracts concerning terms and conditions of work, causing them sometimes to work for long hours without overtime payment. Moreover, women migrant workers often experience intersecting forms of discrimination, suffering not only sex- and genderbased discrimination, but also xenophobia and racism. Discrimination based on race, ethnicity, cultural particularities, nationality, language, religion or other status may be expressed in sex- and gender-specific ways. 15. Because of discrimination on the basis of sex and gender, women migrant workers may receive lower wages than do men, or experience nonpayment of wages, payments that are delayed until departure, or transfer of wages into accounts that are inaccessible to them. For example, employers of domestic workers often deposit the worker’s wages into an account in the employer’s name. If a woman and her spouse both have worker status, her wages may be paid into an account in the name of her spouse. Workers in female-dominated sectors may not be paid for weekly days of rest or national holidays. Or, if they are heavily burdened by debt from recruitment fees, women migrant workers may not be able to leave abusive situations since they have no other way to repay those debts. Such violations may of course be faced by non-migrant local women in similar female-dominated jobs. However, non-migrant local women have better

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job mobility. They have the choice, however limited, of leaving an oppressive job situation and obtaining another job, whereas, in some countries, a woman migrant worker may become undocumented the minute she leaves her job. Non-migrant local women workers may, moreover, have some economic protection by way of family support if they are unemployed, but women migrant workers may not have such protection. Women migrant workers thus face hazards on the basis of sex and gender, as well as on the basis of their migrant status. 16. Women migrant workers may be unable to save or transmit savings safely through regular channels due to isolation (for domestic workers), cumbersome procedures, language barriers, or high transaction costs. This is a great problem since in general they earn less than men. Women may further face familial obligations to remit all their earnings to their families to a degree that may not be expected of men. For example, single women may be expected to support even extended family members at home. 17. Women migrant workers often suffer from inequalities that threaten their health. They may be unable to access health services, including reproductive health services, because insurance or national health schemes are not available to them, or they may have to pay unaffordable fees. As women have health needs different from those of men, this aspect requires special attention. They may also suffer from a lack of arrangements for their safety at work, or provisions for safe travel between the worksite and their place of accommodation. Where accommodation is provided, especially in female-dominated occupations such as factory, farm or domestic work, living conditions may be poor and overcrowded, without running water or adequate sanitary facilities, or they may lack privacy and hygiene. Women migrant workers are sometimes subjected to sex-discriminatory mandatory HIV/AIDS testing or testing for other infections without their consent, followed by provision of test results to agents and employers rather than to the worker herself. This may result in loss of job or deportation if test results are positive. 18. Discrimination may be especially acute in relation to pregnancy. Women migrant workers may face mandatory pregnancy tests followed by deportation if the test is positive; coercive abortion or lack of access to safe reproductive health and abortion services, when the health of the mother is at risk, or even following sexual assault; absence of, or inadequate, maternity leave and benefits and absence of affordable obstetric care, resulting in serious health risks. Women migrant workers may also face dismissal from employment upon detection of pregnancy, sometimes resulting in irregular immigration status and deportation.

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19. Women migrant workers may be subjected to particularly disadvantageous terms regarding their stay in a country. They are sometimes unable to benefit from family reunification schemes, which may not extend to workers in femaledominated sectors, such as domestic workers or those in entertainment. Permission to stay in the country of employment may be severely restricted, especially for women migrant workers in domestic work when their time-fixed contracts end or are terminated at the whim of the employer. If they lose their immigration status, they may be more vulnerable to violence by the employer or others who want to abuse the situation. If they are detained, they may be subject to violence perpetrated by officials in detention centres. 20. Women migrant workers are more vulnerable to sexual abuse, sexual harassment and physical violence, especially in sectors where women predominate. Domestic workers are particularly vulnerable to physical and sexual assault, food and sleep deprivation and cruelty by their employers. Sexual harassment of women migrant workers in other work environments, such as on farms or in the industrial sector, is a problem worldwide (see E/CN.4/1998/74/Add.1). Women migrant workers who migrate as spouses of male migrant workers or along with family members face an added risk of domestic violence from their spouses or relatives if they come from a culture that values the submissive role of the women in the family. 21. Access to justice may be limited for women migrant workers. In some countries, restrictions are imposed on the use of the legal system by women migrant workers to obtain remedies for discriminatory labour standards, employment discrimination or sex- and gender-based violence. Further, women migrant workers may not be eligible for free government legal aid, and there may be other impediments, such as unresponsive and hostile officials and, at times, collusion between officials and the perpetrator. In some cases, diplomats have perpetrated sexual abuse, violence and other forms of discrimination against women migrant domestic workers while enjoying diplomatic immunity. In some countries, there are gaps in the laws protecting migrant women workers. For example, they may lose their work permits once they make a report of abuse or discrimination and then they cannot afford to remain in the country for the duration of the trial, if any. In addition to these formal barriers, practical barriers may prevent access to remedies. Many do not know the language of the country and do not know their rights. Women migrant workers may lack mobility because they may be confined by employers to their work or living sites, prohibited from using telephones or banned from joining groups or cultural associations. They often lack

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knowledge of their embassies or of services available, due to their dependence on employers or spouses for such information. For example, it is very difficult for women migrant domestic workers who are scarcely ever out of sight of their employers to even register with their embassies or file complaints. As such, women may have no outside contacts and no means of making a complaint, and they may suffer violence and abuse for long periods of time before the situation is exposed. In addition, the withholding of passports by employers or the fear of reprisal if the women migrant worker is engaged in sectors that are linked to criminal networks prevent them from making a report. 22. Undocumented women migrant workers are particularly vulnerable to exploitation and abuse because of their irregular immigration status, which exacerbates their exclusion and the risk of exploitation. They may be exploited as forced labour, and their access to minimum labour rights may be limited by fear of denouncement. They may also face harassment by the police. If they are apprehended, they are usually prosecuted for violations of immigration laws and placed in detention centres, where they are vulnerable to sexual abuse, and then deported.

Recommendations to States parties23 Common responsibilities of countries of origin and destination 23. Common responsibilities of countries of origin and destination include: a) Formulating a comprehensive gender-sensitive and rights-based policy: States parties should use the Convention and the general recommendations to formulate a gender-sensitive, rights-based policy on the basis of equality and non-discrimination to regulate and administer all aspects and stages of migration, to facilitate access of women migrant workers to work opportunities abroad, promoting safe migration and ensuring the protection of the rights of women migrant workers (articles 2 (a) and 3); b) Active involvement of women migrant workers and relevant nongovernmental organizations: States parties should seek the active involvement of women migrant workers and relevant non-governmental organizations in policy formulation, implementation, monitoring and evaluation (article 7 (b) ); 23

The articles listed for each recommendation refer to the articles of the Convention on the Elimination of All Forms of Discrimination against Women.

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c) Research, data collection and analysis: States parties should conduct and support quantitative and qualitative research, data collection and analysis to identify the problems and needs faced by women migrant workers in every phase of the migration process in order to promote the rights of women migrant workers and formulate relevant policies (article 3). Responsibilities specific to countries of origin 24. Countries of origin must respect and protect the human rights of their female nationals who migrate for purposes of work. Measures that may be required include, but are not limited to, the following: a) Lifting of discriminatory bans or restrictions on migration: States parties should repeal sex-specific bans and discriminatory restrictions on women’s migration on the basis of age, marital status, pregnancy or maternity status. They should lift restrictions that require women to get permission from their spouse or male guardian to obtain a passport or to travel (article 2 (f) ); b) Education, awareness-raising and training with standardized content: States parties should develop an appropriate education and awareness-raising programme in close consultation with concerned non-governmental organizations, gender and migration specialists, women workers with migration experience and reliable recruiting agencies. In that regard, States parties should (articles 3, 5, 10 and 14): (i) Deliver or facilitate free or affordable gender- and rights-based pre-departure information and training programmes that raise prospective women migrant workers’ awareness of potential exploitation, including: recommended contents of labour contracts, legal rights and entitlements in countries of employment, procedures for invoking formal and informal redress mechanisms, processes by which to obtain information about employers, cultural conditions in countries of destination, stress management, first aid and emergency measures, including emergency telephone numbers of home embassy, and services; information about safety in transit, including airport and airline orientations and information on general and reproductive health, including HIV/AIDS prevention. Such training programmes should be targeted to women who are prospective migrant workers through an effective outreach programme and held in decentralized training venues so that they are accessible to women;

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(ii) Provide a list of authentic, reliable recruitment agencies and create a unified information system on available jobs abroad; (iii) Provide information on methods and procedures for migrating to work for women workers who wish to migrate independently of recruitment agencies; (iv) Require recruitment agencies to participate in awareness-raising and training programmes and sensitize them on the rights of women migrant workers, the forms of sex- and gender-based discrimination, the exploitation women could experience and responsibilities of agencies towards the women; (v) Promote community awareness-raising concerning the costs and benefits of all forms of migration for women and conduct crosscultural awarenessraising activities addressed to the general public, which should highlight the risks, dangers and opportunities of migration, the entitlement of women to their earnings in the interest of ensuring their financial security and the need to maintain a balance between women’s familial responsibility and their responsibility to themselves. Such an awareness-raising programme could be carried out through formal and informal educational programmes; (vi) Encourage the media, information and communication sectors to contribute to awareness raising on migration issues, including on the contributions women migrant workers make to the economy, women’s vulnerability to exploitation and discrimination and the various sites at which such exploitation occurs; c) Regulations and monitoring systems, as follows: (i) States parties should adopt regulations and design monitoring systems to ensure that recruiting agents and employment agencies respect the rights of all women migrant workers. States parties should include in their legislation a comprehensive definition of irregular recruitment along with a provision on legal sanctions for breaches of the law by recruitment agencies (article 2 (e) ); (ii) States parties should also implement accreditation programmes to ensure good practices among recruitment agencies (article 2 (e) ); d) Health services: States parties should ensure the provision of standardized and authentic health certificates if required by countries of destination and require prospective employers to purchase medical insurance for women migrant workers. All required pre-departure HIV/AIDS testing or pre-departure health examinations must be respectful of the human rights of women migrants. Special attention

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should be paid to voluntariness, the provision of free or affordable services and to the problems of stigmatization (articles 2 (f) and 12); e) Travel documents: States parties should ensure that women have equal and independent access to travel documents (article 2 (d) ); f) Legal and administrative assistance: States parties should ensure the availability of legal assistance in connection with migration for work. For example, legal reviews should be available to ensure that work contracts are valid and protect women’s rights on a basis of equality with men (articles 3 and 11); g) Safeguarding remittances of income: States parties should establish measures to safeguard the remittances of women migrant workers and provide information and assistance to women to access formal financial institutions to send money home and to encourage them to participate in savings schemes (articles 3 and 11); h) Facilitating the right to return: States parties should ensure that women who wish to return to their countries of origin are able to do so free of coercion and abuse (article 3); i) Services to women upon return: States parties should design or oversee comprehensive socio-economic, psychological and legal services aimed at facilitating the reintegration of women who have returned. They should monitor service providers to ensure that they do not take advantage of the vulnerable position of women returning from work abroad, and should have complaint mechanisms to protect the women against reprisals by recruiters, employers or former spouses (articles 2 (c) and 3); j) Diplomatic and consular protection: States parties must properly train and supervise their diplomatic and consular staff to ensure that they fulfil their role in protecting the rights of women migrant workers abroad. Such protection should include quality support services available to women migrants, including timely provision of interpreters, medical care, counselling, legal aid and shelter when needed. Where States parties have specific obligations under customary international law or treaties such as the Vienna Convention on Consular Relations, those obligations must be carried out in full in relation to women migrant workers (article 3); Responsibilities specific to countries of transit 25. States parties through which migrant women travel should take all appropriate steps to ensure that their territories are not used to facilitate the violation of the rights of women migrant workers. Measures that may be required include, but are not limited to, the following:

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a) Training, monitoring and supervision of Government agents: States parties should ensure that their border police and immigration officials are adequately trained, supervised and monitored for gendersensitivity and non-discriminatory practices when dealing with women migrants (article 2 (d) ); b) (b) Protection against violations of migrant women workers’ rights that take place under their jurisdiction: States parties should take active measures to prevent, prosecute and punish all migration-related human rights violations that occur under their jurisdiction, whether perpetrated by public authorities or private actors. States parties should provide or facilitate services and assistance in situations where women travelling with an agent or escort have been abandoned, make all attempts to trace perpetrators and take legal action against them (articles 2 (c) and (e) ); Responsibilities specific to countries of destination 26. States parties in countries where migrant women work should take all appropriate measures to ensure non-discrimination and the equal rights of women migrant workers, including in their own communities. Measures that may be required include, but are not limited to, the following: a) Lifting of discriminatory bans or restrictions on immigration: States parties should repeal outright bans and discriminatory restrictions on women’s immigration. They should ensure that their visa schemes do not indirectly discriminate against women by restricting permission to women migrant workers to be employed in certain job categories where men predominate, or by excluding certain female-dominated occupations from visa schemes. Further, they should lift bans that prohibit women migrant workers from getting married to nationals or permanent residents, becoming pregnant or securing independent housing (article 2 (f) ); b) Legal protection for the rights of women migrant workers: States parties should ensure that constitutional and civil law and labour codes provide to women migrant workers the same rights and protection that are extended to all workers in the country, including the right to organize and freely associate. They should ensure that contracts for women migrant workers are legally valid. In particular, they should ensure that occupations dominated by women migrant workers, such as domestic work and some forms of entertainment, are protected by labour laws, including wage and hour regulations, health and safety codes and holiday and vacation leave regulations. The laws should

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c)

d)

e)

f)

include mechanisms for monitoring workplace conditions of migrant women, especially in the kinds of jobs where they dominate (articles 2 (a), (f) and 11); Access to remedies: States parties should ensure that women migrant workers have the ability to access remedies when their rights are violated. Specific measures include, but are not limited to, the following (articles 2 (c), (f) and 3): (i) Promulgate and enforce laws and regulations that include adequate legal remedies and complaints mechanisms, and put in place easily accessible dispute resolution mechanisms, protecting both documented and undocumented women migrant workers from discrimination or sex-based exploitation and abuse; (ii) Repeal or amend laws that prevent women migrant workers from using the courts and other systems of redress. These include laws on loss of work permit, which results in loss of earnings and possible deportation by immigration authorities when a worker files a complaint of exploitation or abuse and while pending investigation. States parties should introduce flexibility into the process of changing employers or sponsors without deportation in cases where workers complain of abuse; (iii) Ensure that women migrant workers have access to legal assistance and to the courts and regulatory systems charged with enforcing labour and employment laws, including through free legal aid; (iv) Provide temporary shelters for women migrant workers who wish to leave abusive employers, husbands or other relatives and provide facilities for safe accommodation during trial; Legal protection for the freedom of movement: States parties should ensure that employers and recruiters do not confiscate or destroy travel or identity documents belonging to women migrants. States parties should also take steps to end the forced seclusion or locking in the homes of women migrant workers, especially those working in domestic service. Police officers should be trained to protect the rights of women migrant workers from such abuses (article 2 (e) ); Non-discriminatory family reunification schemes: States parties should ensure that family reunification schemes for migrant workers are not directly or indirectly discriminatory on the basis of sex (article 2 (f) ); Non-discriminatory residency regulations: when residency permits of women migrant workers are premised on the sponsorship of an employer or spouse, States parties should enact provisions relating to

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independent residency status. Regulations should be made to allow for the legal stay of a woman who flees her abusive employer or spouse or is fired for complaining about abuse (article 2 (f) ); g) Training and awareness-raising: States parties should provide mandatory awareness-raising programmes concerning the rights of migrant women workers and gender sensitivity training for relevant public and private recruitment agencies and employers and relevant State employees, such as criminal justice officers, border police, immigration authorities, border police and social service and health-care providers (article 3); h) Monitoring systems: States parties should adopt regulations and design monitoring systems to ensure that recruiting agents and employers respect the rights of all women migrant workers. States parties should closely monitor recruiting agencies and prosecute them for acts of violence, coercion, deception or exploitation (article 2 (e) ); i) Access to services: States parties should ensure that linguistically and culturally appropriate gender-sensitive services for women migrant workers are available, including language and skills training programmes, emergency shelters, CEDAW/C/2009/WP.1/R 08-63558 13 health-care services, police services, recreational programmes and programmes designed especially for isolated women migrant workers, such as domestic workers and others secluded in the home, in addition to victims of domestic violence. Victims of abuse must be provided with relevant emergency and social services, regardless of their immigration status (articles 3, 5 and 12); j) The rights of women migrant workers in detention, whether they are documented or undocumented: States parties should ensure that women migrant workers who are in detention do not suffer discrimination or gender-based violence, and that pregnant and breastfeeding mothers as well as women in ill health have access to appropriate services. They should review, eliminate or reform laws, regulations, or policies that result in a disproportionate number of women migrant workers being detained for migration-related reasons (articles 2 (d) and 5); k) Social inclusion of women migrant workers: States parties should adopt policies and programmes with the aim of enabling women migrant workers to integrate into the new society. Such efforts should be respectful of the cultural identity of women migrant workers and protective of their human rights, in compliance with the Convention (article 5);

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l) Protection of undocumented women migrant workers: the situation of undocumented women needs specific attention. Regardless of the lack of immigration status of undocumented women migrant workers, States parties have an obligation to protect their basic human rights. Undocumented women migrant workers must have access to legal remedies and justice in cases of risk to life and of cruel and degrading treatment, or if they are coerced into forced labour, face deprivation of fulfilment of basic needs, including in times of health emergencies or pregnancy and maternity, or if they are abused physically or sexually by employers or others. If they are arrested or detained, the States parties must ensure that undocumented women migrant workers receive humane treatment and have access to due process of the law, including through free legal aid. In that regard, States parties should repeal or amend laws and practices that prevent undocumented women migrant workers from using the courts and other systems of redress. If deportation cannot be avoided, States parties need to treat each case individually, with due consideration to the gender-related circumstances and risks of human rights violations in the country of origin (articles 2 (c), (e) and (f) ); Bilateral and regional cooperation 27. Measures that are required include but are not limited to the following: a) Bilateral and regional agreements: States parties who are sending or receiving and transit countries should enter into bilateral or regional agreements or memorandums of understanding protecting the rights of women migrant workers as elaborated in this general recommendation (article 3); b) Best practices and sharing of information, as follows: (i) States parties are also encouraged to share their experience of best practices and relevant information to promote the full protection of the rights of women migrant workers (article 3); (ii) States parties should cooperate on providing information on perpetrators of violations of the rights of women migrant workers. When provided with information regarding perpetrators within their territory, States parties should take measures to investigate, prosecute and punish them (article 2 (c) ). Recommendations concerning monitoring and reporting 28. States parties should include in their reports information about the legal framework, policies and programmes they have implemented to protect

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the rights of women migrant workers, taking into consideration the sexand gender-based human rights concerns listed in paragraphs 10 to 22 and guided by the recommendations given in paragraphs 23 to 27 of this general recommendation. Adequate data should be collected on the enforcement and effectiveness of laws, policies and programmes and the de facto situation of women migrant workers, so that the information in the reports is meaningful. This information should be provided under the most appropriate articles of the Convention, guided by the suggestions given against all the recommendations. Ratification or accession to relevant human rights treaties 29. States parties are encouraged to ratify all international instruments relevant to the protection of the human rights of migrant women workers, in particular, the International Convention on the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

Index Accession criteria, 2, 23, 33, 34 Accommodation of population diversity, 25, 57 Advisory Committee of the Framework Convention for the Protection of National Minorities (ACFC), 224 Assimilation, 3, 26–28, 30, 76, 87, 88, 148, 167, 168, 173, 178, 179, 188, 197, 198, 216, 222, 280, 339, 353, 370, 401, 402 Autonomy, 118, 123, 127, 128, 133, 134, 136, 137, 171, 198, 208, 210, 211, 230, 231, 233, 238–240, 263, 264, 270, 276, 287, 294, 324, 335, 345, 371 Azerbaijan, 85, 95, 137 Balkans, 124, 325, 332, 337 Baltic States, 118, 119, 127, 139, 140, 202, 270, 321, 332 Bolzano Recommendations on National Minorities in Inter-State Relations, 331–336 Canada, 10, 65, 86, 222, 239, 248, 257 Caucasus, 124, 321, 332, 337, 338 Church-state relations, 67 Citizenship, 6, 14, 48, 51, 139, 149, 151, 165, 170, 171, 174, 176, 177, 180–183, 191–193, 197, 201, 203, 205, 206, 212, 217, 222, 224, 229, 234–236, 238, 263, 264, 276, 302, 311, 314, 334, 356–358, 379, 394, 400, 414–416, 418, 420, 421 Cold war, 121, 138, 337 Commission on Human Rights, 146, 153, 366, 368, 390 Concept ‘minority’, 3, 5, 7, 22, 28, 48, 56 Conflict prevention, 2, 13, 120, 122–124, 131, 138, 143, 301, 319, 332, 336, 338–341, 345, 347, 382 Consistency, 109, 141, 317 Convention on Economic, Social and Cultural Rights, 369 Convention on the Elimination of all forms of Racial Discrimination, 184, 234, 245, 252, 357, 367, 369, 394, 413

Convention on the Elimination of Discrimination against Women, 246, 375, 377, 397, 419 Convention on the Rights of the Child, 131, 147, 180, 184, 188, 189, 245, 247, 359, 367, 369 Council of Europe Parliamentary assembly of, 95, 106, 166, 235 Cultural diversity, 22, 25, 37, 50, 51, 55, 57–68, 80, 108, 109, 112, 233, 240, 365, 366, 379, 385, 403 Cultural identity, 60, 178, 187, 198, 204, 224, 231, 232, 237–242, 265, 271, 418, 433 Culture, 8, 27, 76, 120, 167, 195, 223, 245, 259, 299, 312, 318, 330, 341, 343, 353, 367, 393, 403, 418, 422 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 147, 154, 165, 173, 299, 349, 367, 368, 388, 389, 391, 394, 395 Definition (of ‘minority’), 14, 165, 172, 173, 179 Disabled, persons with disability, 1, 8, 79, 245–247, 262, 266, 270, 276, 277 Discrimination compound discrimination, 14, 17, 260, 289 direct discrimination, 305 indirect discrimination, 41, 42, 54, 66, 80, 81, 84, 107, 108, 301–305, 307 intersectional discrimination, 8, 9, 12, 16, 159, 160, 243, 246, 258, 375, 389 Duties of reasonable accommodation, 42, 43, 66 Education, 3, 39, 76, 151, 188, 210, 220, 246, 265, 302, 310, 328, 334, 339, 346, 380, 389, 400, 417, 423 Education rights, 268, 346, 353, 358, 398, 404 Equality substantive equality, 25, 27, 28, 41–44, 47, 63, 69, 84, 169, 305, 352, 423 Estonia, 5, 30, 31, 95, 127, 139, 199, 202

Kristin Henrard, Double Standards Pertaining to Minority Protection, pp. 437–440. © 2010 Koninklijke Brill NV. Printed in the Netherlands.

438

Index

Ethnic conflicts, 24, 129, 132, 137, 224, 337, 338, 343, 344 EU Charter of Fundamental Rights, 57, 58, 62, 72, 90, 96, 99, 100, 102, 104, 105, 115, 203, 298 European Charter on Regional and Minority Languages, 55, 92, 132 European citizens, 22, 60 European Convention on Human Rights, 10, 101, 105, 106, 167, 175, 330, 369 European identity, 12, 22, 37, 68, 69 European integration (process), 12, 22, 26, 33, 37, 51, 58–62, 64, 69 European Union, 1, 21, 71, 121, 145, 203, 297, 311, 315, 325, 326, 349, 365 Forum on minority issues, 146, 153–155, 386, 392, 394–399 Framework Convention for the Protection of National Minorities, 2, 3, 5, 12, 14, 24, 55, 71–73, 79, 85, 106, 109, 110, 114, 151, 165, 174, 195, 199, 200, 210, 223, 224, 228, 273, 299, 300, 317, 348, 370, 378, 398 Freedom of expression, 9, 11, 25, 93, 95, 96, 99, 101, 135, 154, 186, 187, 212, 221, 298, 321, 360, 400 Freedom of religion, 25, 36, 66, 67, 99, 135, 168, 185, 186, 268, 291, 298, 299 Gender issues, 157, 160, 375 Generations of minority rights, 221, 240 Georgia, 127, 137, 143, 322, 340 Germany, 174–179, 184, 199, 201, 215, 235, 254, 255, 259, 285 Group, 1, 48, 153, 199, 206, 281, 295, 309–315, 323, 362, 367–369, 373, 376, 377, 379, 383, 384, 390, 392–393 Group rights (collective rights), 8, 48, 216, 263, 264, 276, 279, 295 Habermas, 224 Headscarf, 253–255, 263 Headscarves, 16, 224, 253–256, 258 Hierarchy of rights, 264, 276, 295 High Commissioner for Human Rights, 145–147, 267, 366, 368, 374, 376, 383, 390, 395, 397 High Commissioner on National Minorities, 1, 117–143, 301, 319, 326, 332, 337, 338, 364, 378, 398 Human dignity, 9, 99, 143, 167, 224, 273, 288, 400

Human rights, 1, 22, 81, 117, 145, 165, 199, 221, 244, 259, 298, 317, 323, 330, 332, 343, 349, 365, 386, 400, 412, 419 Human Rights Committee, 5, 10, 55, 82, 156, 170, 178, 181, 199, 205, 225, 247, 248, 300, 367, 370, 371, 374, 377, 397 Human Rights Council, 146, 154, 386, 392–395, 398, 399 Immigrants–migrants migrant workers, 18, 76, 172, 173, 204–206, 214, 222, 234, 247, 397, 406, 419–435 Impartiality, 119, 126, 212, 329, 360 India, 249–252, 257 Indigenous peoples, 145, 146, 148, 151, 152, 157, 160, 222, 246, 269, 276, 293, 295, 392–394, 397 Integration, 3, 22, 75, 121, 167, 198, 222, 274, 302, 309, 316, 325, 328, 334, 339, 342, 348, 379, 392, 421 Internal affairs, 123, 124, 294, 332, 350 International Covenant on Civil and Political Rights, 10, 82, 94, 105, 170, 180, 184, 205, 349, 367, 369, 371, 377, 413, 414 International Covenant on Economic, Social and Cultural Rights, 83, 180, 184, 352, 413, 414 Internationalization, 54, 118, 264–270 Jehovah’s witnesses, 272 Justice, 40, 75, 128, 153, 223, 256, 261, 297, 318, 321, 326, 336, 348, 380, 389, 416–417, 426 Kin state, 121, 138, 140–142, 168, 197, 239, 329, 332–335, 356, 357, 359, 363 Kosovo, 35, 137, 325 Kymlicka, W., 127, 128, 132, 217, 295 Language, 3, 38, 74, 127, 148, 168, 195, 220, 243, 263, 299, 311, 318, 330, 333, 339, 342, 346, 366, 403, 412, 422 Latvia, 30, 139 Lebanon, 251, 252, 257 LGBT (Lesbians, Gay, Bisexuals, Transsexuals), 1, 16, 243, 253 Linguistic diversity, 26, 55, 58, 59, 62–65, 68, 72, 75, 79, 91, 92, 97, 102, 110, 298, 319, 320, 344 Lisbon Treaty, 45, 52, 59, 67, 105, 330 Mainstreaming, 36–47, 50, 52, 54, 62, 64, 69, 70, 153, 296, 310, 376, 383

Index

Media, 92–97, 101, 122, 186, 236, 253, 346, 347, 360, 361, 399, 409, 415, 429 Membership (of a group, of a minority), 16, 30, 31, 34, 35, 56, 72, 78, 99, 100, 105, 173, 205, 244, 247–249, 257, 259, 260, 262, 270, 272, 275, 279, 281, 292, 298, 299, 301, 310, 311, 315, 328, 330 Migrant workers convention, 204, 247 Millennium Development Goals (MDGs), 152, 159, 381, 390, 393 Minorities within minorities, 7, 8, 11, 12, 14, 16–18, 259–296 Minority concerns (needs), 37 Minority identity, 25, 27, 28, 38, 157, 160, 220, 371 Minority rights. See Rights and policies Minority, minorities ethnic minorities, 32, 48, 49, 59, 77, 108, 183, 256, 259, 309–320, 347, 394 linguistic minorities, 4, 33, 34, 59, 62, 77, 96, 112, 113, 147, 154, 156, 165, 170 national minorities, 223, 333 religious minorities, 4, 147, 154, 170, 173, 200, 299, 349, 367, 368, 388, 389, 391, 394, 395 Moldova, 127, 137, 325 Multiculturalism, 238–240, 260, 276, 280, 282, 283 Muslims, 32, 46, 249, 285, 387 National minorities, 2, 5, 12–14, 24, 32, 55, 71–115, 117–143, 151, 165–167, 170, 174, 176, 177, 179, 184, 187, 189–191, 193, 199, 200, 202, 208, 211, 212, 221–225, 228, 235, 264, 273, 274, 296, 299–301, 310, 317, 319, 321–324, 326–340, 342–364, 370, 378, 398 Nationality requirement, 5, 6, 28–30, 32 NATO, 121, 133, 328 New (migrant) minority, 1, 7, 12, 14–18, 39, 51, 68, 162, 165–193, 195–296 NGOs, 1, 123, 155, 156, 160, 312, 373, 378, 379, 381–383, 393, 397 Office of the UN High Commissioner for Human Rights OHCHR Indigenous Peoples and Minorities Unit, 152, 392 Organisation for Security and Cooperation in Europe (OSCE), 2, 13, 53, 117–143, 151, 199, 224, 300, 301, 316, 318–319, 321–364, 378, 398

439

Paradox, 86, 87, 270–276, 292, 295 Peace treaties, 168 Persecution, 243 Personal law, 16, 244, 249–251, 257 Positive action, 42–44, 81, 82, 84, 86, 88, 89, 209, 304–306, 312 Positive obligations, 15, 96, 104, 135, 219, 225, 230, 231, 303, 374 Proportionality, 44, 88, 192, 353 Reciprocity, 141, 361 Refugees, 108, 112, 196, 205, 222, 260, 267, 377, 413, 416 Religion, 3, 8, 16, 25, 38, 39, 41–43, 45, 54, 56, 66, 67, 76, 78–80, 89, 94, 96, 99, 100, 113, 114, 135, 149, 168, 174, 178–180, 182, 185, 186, 191, 192, 195, 209, 210, 212, 220, 221, 243, 244, 246, 247, 249, 251, 253–255, 263–265, 268, 274, 295, 298, 299, 301, 303, 304, 353, 360, 366, 367, 371, 375, 379, 385, 408, 422, 424 Religious diversity, 38, 57, 58, 65–67 Rights and policies category specific, 266, 267 minority specific “core” minority rights, 221, 225, 236 “enhanced” minority rights, 131, 134, 166, 172, 221, 229, 231, 234, 235 non-minority specific, 12, 21, 22, 25, 28, 33, 35, 36, 52–57, 68, 69 Roma, 5, 31, 35, 36, 43, 46–49, 56, 68, 81, 82, 85, 158, 174–177, 201, 205, 225, 226, 256, 263, 268, 273, 302, 304–307, 310, 311, 314, 315, 325, 326, 328–331, 387, 388, 395 Romania, 127, 133, 314, 316 Russia, 139, 143 Security, 13, 39, 41, 75, 78, 105, 119–122, 136–140, 142, 143, 151, 153, 167, 179, 186, 209, 214–133, 224, 297, 300, 319, 321, 323–326, 328, 329, 335, 336, 338, 340, 342–345, 350, 353, 354, 356, 360, 365, 370, 378, 379, 383, 416, 420, 429 Self determination, 127, 168, 222, 228, 263 Serbia, 137, 143 Shachar, A., 275, 292–295 Slovakia, 133, 314 Social cohesion, 48, 65, 69, 149, 183–184, 231, 334, 339, 353, 356, 361, 379, 382, 385, 396, 402 Social inclusion, 22, 26, 31, 37, 46–51, 54, 56, 68, 79, 100, 149, 309–315, 323, 365, 366, 379, 433

440

Index

South Africa, 251, 252, 257, 258, 267 Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, 153, 384, 388 Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism, 152, 379 Stability, 119, 122, 124, 125, 128–131, 140, 142, 183, 301, 325, 333, 338, 343, 349, 351, 353–355, 365, 373, 379, 382, 383, 385, 392 TCN (Third Country Nationals), 22, 33, 39, 41, 50, 51, 303 Terrorism, 123, 149, 152, 321, 379, 415 Thornberry, P., 273, 274, 397, 399 Traditional minority autochtonous minority, 177, 180 historical minority, 240 Turkey, 31, 143, 254, 256, 257, 316, 387 UK (United Kingdom), 123, 174, 202, 253, 254, 321 Ukraine, 118, 127 UN (United Nations), 2, 13, 14, 16, 18, 44, 53, 82, 131, 145–162, 165, 166, 169, 170, 173, 184–192, 199, 200, 204–206, 224, 233, 234,

245, 247, 258, 267, 270, 296, 299, 300, 322, 341, 348–354, 356–359, 363–413, 422 UNDP, 152, 341, 381, 386, 390–392, 398 UNHCR, 152, 392 Universal Declaration on Human Rights (UDHR), 169, 180, 181, 184, 185, 187, 188, 244, 245, 352, 366, 369, 401, 412, 414, 422 Universal rights, 238 Value pluralism, 227, 232, 237–240, 242 Venice Commission, 134, 171, 199, 236, 335, 356, 359, 364 Violence against women, 246, 256–257, 283, 384 Vulnerable groups, 1, 2, 9, 16, 18, 46, 49, 185, 243–258, 311, 315 Walzer, M., 221, 222, 240, 278 Way of life, 3, 5, 47, 54, 243, 287 Wheatley, 228, 232 Women, 1, 83, 154, 170, 243, 260, 369, 389, 400, 411, 419 Working Group on Minorities, 153, 166, 199, 206, 367–369, 373, 376, 379, 384, 392–393 World War I, 168 World War II, 168