Justifications of Minority Protection in International Law [50, 1 ed.] 9789004479876, 9789041104243

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Justifications of Minority Protection in International Law

Athanasia Spiliopoulou Åkermark - 978-90-04-47987-6

International Studies in Human Rights VOLUME SO

The titles published in this series are listed at the end of this volume.

Athanasia Spiliopoulou Åkermark - 978-90-04-47987-6

JUSTIFICATIONS OF MINORITY PROTECTION IN INTERNATIONAL LAW 0

Athanasia Spiliopoulou Akennark

....

KLUWER LAW

"INTERNATIONAL LONDON-THE HAGUE-BOSTON

Athanasia Spiliopoulou Åkermark - 978-90-04-47987-6

Published by Kluwer Law International P.O. Box 85889 2508CN The Hague The Netherlands

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Athanasia Spiliopoulou Åkermark - 978-90-04-47987-6

ACKNOWLEDGEMENTS This book is dedicated to my mother and to the memory of my father. They have always argued that knowledge is the only real wealth to which one always has access. My supervisor, Maja Kirilova Eriksson, has throughout the preparation of this thesis come with many suggestions for its improvement, while at the same time leaving me freedom to develop my own thoughts. Many colleagues at the Faculty of Law in Uppsala have been willing to discuss various aspects of my work. I would like to thank Goran Lysen, Inger bsterdahl, Iain Cameron, Olle Marsiiter, Jan Kellgren and Christina Johnsson who have read and commented upon considerable parts of the manuscript. Alan Dixon has proof-read the manuscript with great speed and enthusiasm, and has guided me through the labyrinth of English prepositions. It would not have been possible to write this thesis without the assistance of Anders Ronquist, Manne Wangborg, Nils Eliasson, Christer Elm, Meit Kawas, Regis Brillat, Frank Steketee, Roland Meyer, Rainer Hofmann, Manfred Nowak and Anne Bouvier who have answered many questions and have supplied me with valuable background material. I would also like to thank the librarians at the law library of Uppsala University, the Dag HammarskjOld library, the library of the Swedish Ministry for Foreign Affairs, the Max-Planck-Institute in Heidelberg, the UN Library in Geneva and also Sigfrid Bein of the Human Rights Information Centre of the Council of Europe in Strasbourg.

I have had the privilege of experiencing the hospitality of the Northern Institute for Environmental and Minority Law in Rovaniemi, Finland. Its director, Frank Hom, has been a source of advice and encouragement. I have enjoyed discussions with Lauri Hannikainen, Kristian Myntti, Eyassu Gayim and Juha Poyhonen and benefited from the administrative talents - and the sauna - of Ms.Tuula Tervashonka. Thanks are due to my friend, Yi, who has always cheered me up. Financial support has been given by the Faculty of Law and Uppsala University and research trips have been financed also by grants from the Swedish Ministry for Foreign Affairs, the Finnish government and the Kurt Belfrage Memorial Fund.

5 Athanasia Spiliopoulou Åkermark - 978-90-04-47987-6

My husband Torbjom has tolerated my occasional displays of bad temper and has given me every possible support. Sia October 1996 Finally, I thank Professors Thornberry, Alfredsson, Bring and Hannikainen who were the members of the examination committee for their comments which permitted the final revision of the manuscript. February 1997

6 Athanasia Spiliopoulou Åkermark - 978-90-04-47987-6

CONTENTS pg. no 5

Acknowledgements Abbreviations

12

Part I - THEORETICAL FRAMEWORK

13

Chapter 1 - INTRODUCTION

15 15 20 20

1.1. The Subject Matter of the Enquiry and its Framework 1.2. Delimitations and Clarifications 1.2.1. Indigenous Peoples 1.2.2. The European Union 1.2.3. Prohibition of Discrimination and Minority Protection 1.2.4. Self-Determination and Minority Protection 1.3. Minority Protection - Solely A European Issue? 1.4. Sources Used in the Present Thesis

Chapter 2 - RIGHTS AND PROTECTION

2.1. The Concept of Rights 2.2. Legal Rights 2.2.1. Human Rights 2.2.2. Individual v. Collective Rights 2.2.3. Minority Rights 2.3. The Concept of "Protection" 2.4. Minority Protection

Chapter 3 - JUSTIFICATION IN INTERNATIONAL LAW

3.1. 3.2. 3.3. 3.4. 3.5.

Teleological Interpretation in International Law Views of Jurists Judicial Application Teleological Theories: Some Efforts of Jurists Justification of Minority Protection as Understood in this Thesis

Chapter 4 - THE THREE JUSTIFICATIONS OF MINORITY PROTECTION

4.1. Peace and Security 4.2. Human Dignity

22

23 28 33 34 36 36 39

40 42 46

48 52

55

57 58 60 62 66

68 69 75 7

Athanasia Spiliopoulou Åkermark - 978-90-04-47987-6

4.3. Culture 4.4. The Relevance of the Justifications of Minority Protection

78 83

Chapter 5 - DEFINING THE "MINORITY"

86 86 87 88 94 96

5.1. 5.2. 5.3. 5.4. 5.5.

The Need of a Definition Possible Approaches Towards a Definition Definitions of "Minority" in International Law Some Recent Doctrinal Efforts Conclusion

Part II - MINORITY PROTECTION AND ITS JUSTIFICATIONS IN THE PRACTICE OF INTERNATIONAL ORGANISATIONS Chapter 6 - MINORITY PROTECTION IN THE LEAGUE OF NATIONS

99

101 101

6.1. The Creation of the League of Nations 6.2. The Covenant of the League of Nations and Protection of Minorities 6.3. The System of Minority Protection of the League of Nations 6.4. Minority Disputes before the Permanent Court of International Justice 6.5. Main Characteristics of the System 6.6. Weaknesses and Achievements of the Minority Protection System of the League of Nations

117

Chapter 7 - MINORITY PROTECTION IN THE UNITED NATIONS

119

7 .1. The Validity of Undertakings Concerning Minorities after the Second World War 7 .2. The Background to Article 27 of the International Covenant on Civil and Political Rights 7.3. The Content of Article 27: the Nature of State Obligations. Views of Jurists 7 .4. Article 27 of the International Covenant on Civil and Political Rights and the Consideration of State Reports by the Human Rights Committee 7.4.1. The Human Rights Committee 7.4.2. The Reporting System 7.4.3. The Annual Reports of the HRC 7.4.4. The Usefulness of Annual Reports in the Interpretation of Article 27 7.4.5. Consideration of State Reports and Article 27

102 104 108 111

119 123 127 131 132 132 134 137 138

8 Athanasia Spiliopoulou Åkermark - 978-90-04-47987-6

7.5.

7 .6. 7.7.

7.8.

7.9.

7.4.5.1. The Need for Positive Action 7.4.5.2. The Need for Legal Provisions: Clarity and Certainty 7.4.5.3. Legal Status of Minorities 7.4.5.4. Language Rights 7.4.5.5. Right to Media 7.4.5.6. Right to Religion 7.4.5.7. Representation in Parliament 7.4.5.8. Other Forms of Participation in Public Affairs 7.4.5.9. Land Rights and Environment 7.4.5.10. Some Concluding Remarks The Case Law of the Human Rights Committee Concerning Article 27 7.5.1. Introduction 7.5.2. The Cases 7.5.2.1. Lovelace v. Canada 7.5.2.2. Kitok v. Sweden 7.5.2.3. Lubicon Lake Band v. Canada 7.5.2.4. Ballantyne et al. v. Canada 7.5.2.5. Lansman et al. v. Finland 7.5.2.6. Communications by Bretons 7.5.2.7. Other Cases Found Inadmissible 7.5.3. Analysis of the Case Law The General Comment on Article 27 The UN Declaration on the Rights of Persons Belonging to[ ... ] Minorities (1992) 7.7.1. Introduction 7. 7.2. The Material Content of the Declaration 7.7.2.1. The Preamble 7. 7.2.2. The Operative Articles 7.7.3. Implementation of the Declaration Minority Protection in the Work of the Committee on Economic, Social and Cultural Rights 7.8.1. Language and Education 7.8.2. Cultural Life and Financial Support 7.8.3. Economic and Social Rights of Minorities Concluding Remarks

Chapter 8 - MINORITY PROTECTION IN THE COUNCIL OF EUROPE

8.1. The Creation and Aim of the Council of Europe 8.2. The European Convention for the Protection of Human Rights and Fundamental Freedoms and Minority Protection 8.2.1. The Omission of a Provision on Minorities from

139 140 141 142 146 147 149 151 152 154 155 155 157 157 158 160 161 163 164 169 170 174 179 179 181 181 182 187 188 193 194 195 196

197 197 200

9 Athanasia Spiliopoulou Åkermark - 978-90-04-47987-6

8.3.

8.4. 8.5. 8.6. 8.7.

the European Convention 8.2.2. Continued Efforts for a Minority Provision ( 1950-1968) 8.2.3. The Non-Discrimination Provision of the European Convention (Art. 14) and Minority Protection in the Case Law of the European Court of Human Rights 8.2.4. Minority Protection in the Case Law of the Commission 8.2.4.1. Cases concerning Article I (rights guaranteed) 8.2.4.2. Cases concerning Article 3 (degrading treatment) 8.2.4.3. Cases concerning Articles 6, 9 and JO (language and religion) 8.2.4.4. Cases concerning Article 8 (family and private life) in combination with Article I of the First Protocol (property) 8.2.4.5. Cases concerning Article 11 (freedom of assembly) 8.2.5. Assessment of the Case Law of the Court and Commission Discussions Concerning the Introduction of New Minority Standards: 1990-1995 8.3.1. Recommendation 1134 (1990) and the Period 1990-1993 8.3. 2. The Proposal for a European Convention for the Protection of Minorities by the European Commission for Democracy through Law 8.3.3. The Vienna Declaration (1993) The Framework Convention for the Protection of National Minorities The European Charter for Regional or Minority Languages Minority Protection and the Admission of New Members States in the Council of Europe Concluding Remarks

200 203 204 210 211 211 211

213 215 215 220 223 223 224 229 233 238 245

Chapter 9 - MINORITY PROTECTION IN THE ORGANISATION FOR SECURITY AND CO-OPERATION IN EUROPE

247 Introduction 247 Participation in the OSCE 248 Main Organs of the OSCE 249 Characteristics of the OSCE 251 The Final Act of Helsinki 255 The Nature and Significance of OSCE-Documents 256 The Human Dimension 259 9. 7.1. The Helsinki Final Act and Human Rights 259 9.7.2. Subsequent Meetings: to Budapest (1994) via Vienna (1989) 260 9.8. Minority Protection in the OSCE 264 9.8.1. The Helsinki Final Act and Minorities 265 9.8.2. The Concluding Document of Madrid ( 1983) 271 9.1. 9.2. 9.3. 9.4. 9.5. 9.6. 9.7.

10 Athanasia Spiliopoulou Åkermark - 978-90-04-47987-6

9.8.3. The Concluding Document of Vienna (1989) 9.8.4. The Document of the Copenhagen Meeting of the Conference on the Human Dimension ( 1990) 9.8.5. Through the Charter of Paris for a New Europe ( 1990) to the Geneva Meeting of Experts on National Minorities (1991) 9.8.6. The Cracow Symposium on Cultural Heritage (1991) 9.8.7. The Moscow Meeting of the Conference on the Human Dimension ( 1991) 9.8.8. The Prague Meeting of the CSCE Council (1992) 9.8.9. Helsinki-II: The Challenges of Change (1992) 9.8.10. The Mandate of the High Commissioner on National Minorities 9.8.11. Activities of the High Commissioner on National Minorities, 1993-1995 9.9. Conclusions

292

Chapter 10 - SUMMARY AND CONCLUDING REMARKS

294

Selected Bibliography

300

Table of Cases

323

Index

327

272

274

277

280

281 282 283 285 288

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ABBREVIATIONS AHL CAHMIN

American Journal of International Law Ad Hoc Committee for the Protection of National Minorities (of the Council of Europe) CERD Committee on the Elimination of Racial Discrimination CPC Conflict Prevention Centre Conference on Security and Co-operation in Europe CSCE Committee of Senior Officials cso Decisions and Reports DR European Court of Human Rights ECHR ECommHR European Commission of Human Rights ECOSOC UN Economic and Social Council European Journal of International Law EHL European Treaty Series ETS GA UN General Assembly High Commissioner on National Minorities HCNM Human Rights Committee HRC Human Rights Law Journal HRLJ International Covenant on Civil and Political Rights ICCPR International Covenant on Economic, Social and Cultural ICES CR Rights International Court of Justice ICJ ILM International Legal Materials ILO International Labour Organisation LNOJ League of Nations Official Journal League of Nations Treaty Series LNTS NATO North Atlantic Treaty Organisation NGO(s) Non-governmental organisation(s) ODIHR Office for Democratic Institutions and Human Rights Official Journal of the European Community OJ Organisation for Security and Co-operation in Europe OSCE Permanent Court of International Justice PCIJ RdC Recueil des Cours de l' Academic de Droit International Regeringsrattens arsbok (Yearbook of the Swedish Supreme Administrative Court) UNJYB UN Juridical Yearbook UNTS United Nations Treaty Series Vienna Convention on the Law of Treaties VCLT YBECHR Yearbook of the European Convention on Human Rights

RA

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PART I THEORETICAL FRAMEWORK

Athanasia Spiliopoulou Åkermark - 978-90-04-47987-6

Athanasia Spiliopoulou Åkermark - 978-90-04-47987-6

CHAPTERl INTRODUCTION 1.1. The Subject Matter of the Enquiry and its Framework Developments in Europe since 1989, with the falling apart of several states, including the Soviet Union and Yugoslavia, the ending of the Cold War, the rising voice of indigenous peoples, the complementary and at the same time contradictory trends of internationalisation, regionalisation and decentralisation, are but some of the reasons for the huge current interest in minority issues. This interest is reflected both in regard to standard-setting and to the implementation of existing standards within global and regional organisations, as well as in the extensive literature on various aspects of the issue. In 1971, Bruegel discussed the neglect of minority protection after the Second World War, 1 and, in 1980, Thornberry, asserted that it was doubtful, at that point, whether international law could be said to recognise a specific minorities problem at all, as opposed to the (individual) human rights issue. 2 His vision of a "phoenix in the ashes" and of a more positive climate vis a vis minorities has been largely confirmed, at least if compared to the period 1945-1979. 3 There exist today several global and regional instruments dealing with minority protection and also some initial jurisprudence from judicial or quasi-judicial organs. This thesis examines the development of minority protection in international law. The task is twofold: 1) What is the lex lata of minority protection today? 2) What has been the justification of minority protection through the years and within different fora for international co-operation? The question lying behind this dual task is why and in what way has international law protected minorities? This study is not only an examination of the rights of minorities understood I. J.-W. Bruegel, A neglected field - the protection of minorities, in Revue des droits de l'homme, 1971, Vol. IV, Nos. 2-3, pp. 413-442. 2· P. Thornberry, Is there a Phoenix in the Ashes? - International law and minority rights, in Texas International Law Journal, 1980, Vol. 15, No. 3, pp. 421-458. 3 · I chose the years 1945 and 1979 as schematic limits. The year 1945 marks the creation of the United Nations and the development of rules of international human rights, while 1979 marks the presentation of the comprehensive report of Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN. 4/ Sub. 2/ 384/Rev. 1. One may also note that in 1977 the first case concerning Article 27 of the ICCPR, the case of Sandra Lovelace v. Canada, was submitted to the Human Rights Committee which declared the communication admissible in August 1979. See below, chapter 7.5.

15 Athanasia Spiliopoulou Åkermark - 978-90-04-47987-6

Chapter 1 - introduction

as human rights, but also of the various methods of protection of minorities. 4 The term "minority protection" will be further discussed in Chapter 2. At this early stage it will suffice to say that it covers the different methods, including the recognition of rights and their implementation, in which international law preserves or promotes minorities and their cultures. The broad approach is explained by the present author's interest in issues of legitimacy and justification and in the position of minority protection in international law as a whole. It is my view that modern international law lacks a holistic approach, or perhaps a consistent theory, of minority protection and, in consequence, it often avoids difficult questions such as trying to explain why minority protection has become an integral part of international law, whether minorities should be preserved at any price, or what is to be done with intolerant minorities. 5 This thesis is an attempt to address some of those issues. Lauterpacht wrote in 1946: Undoubtedly, international law is primarily - though not exclusively - a body of rules governing the relations of states, i.e., of individuals organized as a state. But this circumstance cannot affect decisively the moral content of international law and of the dictates of reason and of the general principles of law which underlie it. lt may be true to say that 'after all' states are not individuals; but it is even more true to say that 'after all' states are individuals. 6

These words were written long before the creation of most contemporary instruments of human rights and just as the United Nations was starting its activities. Still his words seem as valid today as in 1946 and they touch upon the very core of the minority issue. A point of importance in Lauterpacht' s words is his insistence on the 'moral content' of international law. He did not see international law as a morally neutral system of rules or as a mere technical solution to acute necessities. In this present work one of the basic assumptions is that minority protection as regulated in and by international law is not, in any way, politically or morally neutral. States7 agree upon cerOn the concepts of rights and protection see below chapter 2. In this I agree in principle with W. Kymlicka who argues that "traditional human rights standards are simply unable to resolve some of the most important and controversial questions relating to cultural minorities'', in Multicultural Citizenship... , 1995, at p. 4. 6·H. Lauterpacht, The Grotian Tradition in International Law. British Year Book of International Law, 1946, pp. 1-53. Also reprinted in R. Falk, F. Kratochwil, and S. Mendlovitz, (eds.), International Law -A Contemporary Perspective, 1985, pp. I0-36, at p. 19. 7· According to Schlager, the word "state" is usually not capitalised in American English while expressions such as "Baltic States" are influenced by the British English origin. E. Schlager, The Procedural Framework ofthe CSCE: From the Helsinki Consultations to theParis Charter, 1972-1990, in HRLJ, 1991, Vol. 12, No. 6-7, pp. 221-237, at note no. 4. In the present work I use non-capitalised "state" in order to reflect the position of states as one among several other actors in international law. Citations retain however the capitalised form. 4· 5·

16 Athanasia Spiliopoulou Åkermark - 978-90-04-47987-6

Chapter 1 - introduction

tain norms and principles of international law after consideration on a number of levels, including their interest to preserve and protect their own integrity, the avoidance of conflicts, co-operation on economic, social and cultural issues and the protection of human rights. 8 International legal rules are, in most cases, strikingly vague, permitting a scale of possible degrees of implementation. It is then the role of international organs, judicial and political, and of other states to assess the compatibility of state behaviour with the rules. 9 As an example can be named the recent Council of Europe Framework Convention for the Protection of National Minorities. 10 The Framework Convention has been criticised for its vagueness and for its minimal provisions on implementation control, but it represents, even so, a huge step forward in the field of minority protection as it introduces legally binding and more detailed international rules. One of the main themes of this study is that of justification of minority protection. Until recently not much attention had been paid to justification issues in international law. The reason for this can be seen in the dichotomy of naturalistic versus positivistic legal thinking which simplifies things in an awkward manner; according to the logic of this distinction, minority protection is either a requirement of natural law, or a pragmatic concession by the unlimited power of states. This dualism makes questions of justification superfluous. The term "justification'', which will be further discussed in Chapter 3, is here used in the sense of a logical, argumentative construction which gives the background, the reasons and aims of minority protection. It is based on a broad collection of data, including the historical context, the will of the parties to international treaties, the travaux preparatoires, the position of international provisions in the legal hierarchy, and the subsequent practice of monitoring organs. Justification problems are not non-existent in law, both international and national. If one has to make an assessment "all things considered", then the question of "justification" becomes at once relevant, as it

8 · General Assembly Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 1970. 9 · The strict distinction of the sphere of law and policy is reflected in the joint dissenting opinion by Judges Fitzmaurice and Spender in the South West Africa Cases (Preliminary Objections), ICJ Reports (1962), p. 466. Higgins criticises extensively this distinction, as well. as the opinion that international law is what an impartial court would say if seized of the issue. R. Higgins, Problems and Process, 1994. See especially chapter 1 on the nature and function of international law. 10· ETS 157 (1994). For a comment see below chapter 8.4.

17 Athanasia Spiliopoulou Åkermark - 978-90-04-47987-6

Chapter I - Introduction

touches upon both the historical context and aspects of policy considerations. 11 In the following chapters the role of justification in international law is studied. Through an examination of international legal standards concerning minorities (Chapters 6-9) three main, though perhaps notexclusi ve, grounds ofjustification of minority protection are identified: peace, human dignity, and culture. 12 If international law is perceived as a framework, and human rights rules as a minimum standard, and it is accepted that international law could never regulate in detail all possible minority situations, then we need at least some principles for the interpretation of the existing norms for minority protection. Such principles of interpretation would help decision-makers to use the existing rules in concrete situations.

According to this way of thinking there are true problems in the application of a rule when we are confronted with conflicts of the underlying justifications. Such conflicts can be solved only by policy decisions and not by strict legal interpretation. Therefore, I will comment on potential conflicts between the three justifications of minority protection, without, however, drawing any final conclusions as to any possible hierarchical order among them. Lauterpacht's above-mentioned statement concerns also the perennial question of subjects of international law. 13 During the League of Nations period, when the first mechanism for minority protection was created, there was considerable discussion about whether minorities as such were_ "legal persons" or "subjects" of international law. The question was linked by most writers to the possibility of bringing international claims in front of judicial or semi-judicial organs of international law . 14 Such a point of departure is a ll. See A. Peczenik, Juridisk argumentation, 1990, at p. 200 where he maintains that it is "natural" to take into consideration the "purpose" of a legal act; see also by the same author, On Law and Reason, 1989, pp. 74-95 and Vad iir riitt?, 1995, pp. 362-377. 12 · See further chapter 4. Since it is found that there are several grounds in justification of minority protection in international law, I often use the word "justifications" in its plural form, even though this form is rather unusual in the English language. See, however, J. Dine and B. Watt (eds.), Discrimination Law, 1996, which has the subtitle "Concepts, Limitations and Justifications". 13· In nearly all major works of international law there is a chapter on the "subjects of international law". See e.g. C. Rousseau, Droit International Public, Tome II (Les sujets de droit), 1974; M. Akehurst, A Modem Introduction to International Law, 1987, (repr. 1993); H. Eek, 0. Bring, and L. Hjerner, Folkriitten, 1987, pp. 1-6; Chapter III in I. Brownlie, Principles of Public International Law, 1990. 14· See for example T. Modeen, The International Protection of National Minorities in Europe, 1969. Modeen discusses in depth the legal personality of the Aland Islands and concludes that Aland was a subject of international law in the League of Nations period, at p. 27. See also various contributions discussing this issue in L. Hannikainen, F. Horn (eds.), Autonomy and Demilitarisation in International Law, 1997.

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Chapter I - Introduction

natural consequence of a "statist" perception of international law. According to such a perception, the rule is that states are the main actors and they are also the legislators in the international arena. 15 The existence of other actors is seen as an anomaly and as an intrusion in the sphere of state sovereignty. More recently, however, more and more international lawyers have refused to follow the subject-object dichotomy and have described international law as a decision-making process. As early as in 1964 Friedmann developed the idea of The Changing Structure of International Law, in which the international law of co-operation, rather than co-existence, and international law as a law of welfare are central concepts. 16 Higgins observes that within this process there are a variety of participants which promote their claims by a variety of techniques. 17 In spite of the arguments and efforts of all these learned writers over a period of more than five decades it is still the case that minority protection in international law is seen primarily as a concern of and threat against states and therefore as a disturbing problem of international law. More recently, however, there has been a trend towards a change of the "international law paradigm" to use Kuhn's words. 18 Some of the fundamental assumptions have been challenged and both human dignity and culture seem to have acquired a stronger position in international law. I examine the development of minority protection in international law through an examination of the engagement in minority issues within global and regional organisations. International law is seen as a process, minorities are seen as "participants" in the process of international law, and, consequently, the issue of whether minorities are subjects or objects of international law is not considered to be of primary interest. Another characteristic of this paradigm is that it is more open towards the fruits of the work done within other disciplines such as political theory, 15 · The classic definition of international law is given by H. Kelsen in his Principles ofInternational Law, 1966, at p. 3: "International Law or the Law of Nations is the name of a body of rules which ... regulates the conduct of the States in their intercourse with one another". 16· W. Friedmann, The Changing Structure of International Law, 1964. 17 · R. Higgins, Conceptual Thinking About the Individual in International Law, in British Journal of International Studies, 1978, Vol. 4, pp. 1-19. See also I. Detter De Lupis who speaks of "the drift away from the exclusive state paradigm" and distinguishes between "creators", "actors" and "subjects" of international law in The Concept of International Law, 1987. The transition from a statist international law to a global participatory world order is a central and recurrent theme also in the works of Falk. See for example one of his more recent works R. Falk, Revitalising International Law, 1989. Falk observes that this changing structure does not necessarily lead to a greater decentralisation of the international society. In fact, Falk maintains, the world system today is a relatively decentralised, if hierarchically arranged, form of statism but is moving toward an emerging order which is becoming more and more centralised (at p. 9). If this observation is true then it is even more necessary to clarify the role of minorities in the international law process. 18 · T. Kuhn, The Structure of Scientific Revolutions, 1970.

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Chapter 1 - Introduction

international relations and philosophy. This, in my view, has been one of the main contributions of the Critical Legal Studies in the evolution of legal thinking in general and international law thinking in particular. 19 In the sphere of minority research it is no longer possible to neglect the most interesting results of Gurr regarding the relation between minority suppression and the creation of conflict situations, nor to draw a strict line between legal aspects and the writings of political theorists. 20 The writings of Kymlicka on the positions of minorities may serve as a good example. 21 Even though the main arguments in the present work are drawn from the realm of international law, I find it necessary to draw also on the ideas advanced by these other disciplines. 22

1.2. Delimitations and Clarifications Minority protection has been a "hot" subject in the last few years, with new situations arising practically every day. I have, however, limited my timeframe in order to be able to proceed to an analysis and not confine myself simply to a description of recent developments, and I have tried to cover developments up to the end of 1995. Only exceptionally is later information included.

1.2.1. Indigenous Peoples

The thesis does not focus on issues of indigenous peoples. 23 Indigenous 19 · D. Kennedy, International Legal Structures, 1987. 20 · T. R. Gurr, Minorities at Risk: A Global View of Ethnopolitical

Conflicts, 1993. W. Kymlicka, Liberalism, Community and Culture, 1989. By the same author, The Rights of Minority Cultures, 1995, and Multicultural Citizenship, 1995. 22 · The fact that it is not possible to keep the paradigms totally separate and that this separation is mostly a characteristic of an academic approach, is illustrated by the recent book by C. Hill, and P. Beshoff (eds.), Two Worlds of International Relations: Academic, practitioners and the trade in ideas, 1994. In one of the contributions, The International Lawyer: Inside and Outside Foreign Ministries, F.D. Berman, Legal Adviser in the Foreign and Commonwealth Office of the United Kingdom, makes clear that legal advisers have quite often to make 'legal policy' decisions and he explains: "Thus, while it is often inescapable that the governmental international lawyer deals in policy as well as law, it is equally true that the policy he deals in can be termed 'legal policy', a sense of what is fitting for the law as a coherent and principled system." (at p. 87). 23 · Numerous writings exist concerning indigenous peoples (or "populations"). As general introductions one may note inter alia the report of the UN Special Rapporteur Jose Martinez Cobo, Study of the Problem of Discrimination against Indigenous Populations, UN Doc E/CN.4/Sub.2/198617 and Adds.1-4; R. Falk, The Rights of Peoples, in J. Crawford (ed.), The Rights of Peoples, 1988, pp. 17-37; N. Lerner, Group Rights and Discrimination in International Law, 1991, pp. 99-114; P. Thornberry, International Law and the Rights of Minorities 1991, pp. 331-382; C. M. Brolmann and M.Y.A. Zieck, Indigenous Peoples, in C. Brolmann et al. (eds.), Peoples and Minorities in International Law, 1993, pp. 77-101; E. Gayim, The UN Draft Declaration on Indigenous Peoples, 1994. 2 1.

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peoples may be seen as a special category of minorities, though there exist also several international standards applying only to indigenous peoples, including the ILO Conventions 107 and 169, and Chapter 26 of Agenda 21 in the Rio Declaration on Environment and Development. Martinez Cobo defined the term "indigenous" in the following way: Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems. 24

What is characteristic here is the prerequisite of a historical continuity with pre-invasion and pre-colonial societies. Obviously, there exists a grey area between what is a "minority" and what is an "indigenous people". An element which is strong in the international legal discourse concerning indigenous peoples is that of restitution for past grievances, an element which is not as central in the discourse concerning minorities. The UN has for many years been preparing a draft Declaration on the Rights of Indigenous Peoples. 25 The draft Declaration has still not yet reached the General Assembly, 26 while discussion has moved towards the establishment of a permanent forum for indigenous peoples along the lines of the existing Working Group on Indigenous Populations of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities. 27 In the present thesis reference to issues concerning indigenous peoples is made only to of the Problem of Discrimination against Indigenous Populations, E/CN.4/Sub.2/ 1986/7, Add. 4. Similarly, ILO Convention No. 169 specifies the beneficiaries as: "Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural or political institutions" (Art. 1.1.b). 25 · See the documents entitled Technical review of the United Nations draft declaration on the rights of indigenous peoples, UN Docs E/CN.4/Sub.2/1994/2 and Add. 1. 26 · The draft Declaration was approved by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1994 and it is at present under discussion by the Commission on Human Rights. 27 · ECOSOC Press Releases 5622 and 5628 (1995). See also E.- I. Daes, Dilemmas Posed by the UN Draft Declaration on the Rights of Indigenous Peoples, in Nordic Journal of International Law, 1994, Vol. 63, pp. 205-212 and R. Lopez-Reyes, The Establishment of a United Nations Permanent Forum of Indigenous Peoples and Autonomous Assembly of Indigenous Peoples, in Indigenous Affairs, 1995, No. 2, pp. 52-56. 24 ·Study

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illustrate the application of minority rules, e.g. in respect of the case law of the Human Rights Committee. 28

1.2.2. The European Union

Another limitation of the scope of the thesis is that it barely touches upon the work of the European Union. Article F(2) of the Maastricht Treaty states that the Union shall respect fundamental rights, as guaranteed by the European Convention of Human Rights, and Article J .1 states that the consolidation of democracy, human rights and fundamental freedoms and the rule of law are among the objectives of a common foreign policy. These provisions confirmed the Joint Declaration on Human Rights adopted by the European Parliament, the Council and the Commission in 1977. 29 The Maastricht Treaty reflects in fact the conflicting approaches of integrationalism and multiculturalism. In Title IX on culture it is stipulated that: The Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore. 30

The European Parliament has made several attempts to introduce European legislation especially concerning minority languages, but these efforts have not resulted in any binding document. 31 Neither places the European Community human rights among its primary concems. 32 However, it should be noted that the European Community has for several years provided financial support to the European Bureau for Lesser-used Languages with its seat in Dublin. 33 In addition, the creation by the Maastricht Treaty ( 1992) of the Committee of See below chapter 7.5. OJ, No. Cl03/863, 1977. 30 · Article 128.1. 3 i. See European Parliament Draft Report of the Committee on Legal Affairs and Citizen's Rights concerning a Charter of Rights for Ethnic Groups (sometimes called the Stauffenberg Report after the Committee's erstwhile chairman Graf Stauffenberg), Doc-EN/PR/ 205970, 26 May 1992. Stauffenberg's work was taken over by his successor Mr. Alber but the report has not until now received support by a majority of the Committee. The report refers to the earlier Resolutions of the Parliament concerning regional languages (OJ No. C287/106, 1981; OJ No. C68/103, 1983; OJ No. C318/160, 1987; and OJ No. Cl9/42, 1991). 32 · A. Clapham, A Human Rights Policy for the European Community, in Yearbook of European Law, 1990, pp. 309-366. J. Coppel and A. O'Neill, The European Court of Justice: Taking Rights Seriously? in Common Market Law Review, 1992, Vol. 29, pp. 669692. 33 · The European Bureau for Lesser-used Languages is an independent organisation and it receives subsidies also from several European governments. See OJ No. C318/160, 1987. 28 ·

29 .

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Regions (Articles 198a-c) gave the regions and their minorities a forum for consultation and for exercising pressure on decision-making bodies of the Community. 34 In June 1993 the French Prime Minister presented the so-called Balladur Plan (or draft Pact on Security and Stability in Europe). The Plan was finally adopted in spring 1995 and it touches upon the linkage of security and minority issues. It will, therefore, be discussed below in the relevant chapter. 35

1.2.3. Prohibition of Discrimination and Minority Protection

The concepts of rights, human rights, minority rights and minority protection and their definitions will be discussed below. At this early stage I wish, however, to clarify that I understand human rights and minority protection as two different but overlapping issues. Or, in the words of Thornberry, as "distinct but complementary". 36 This is due to the distinct justifications of the two concepts. In human rights instruments, human rights are justified by the necessity to respect human dignity while minority protection is based not only on the value of human dignity, but also on the strong wish to prevent conflicts and preserve peace, and on the value of minority cultures as such. 37 It is suggested that the essence of minority protection is the protection of the

separate identity of minorities. In its advisory opinion regarding the Minority Schools in Albania the Permanent Court of International Justice based its reasoning not only on the concept of equality and non-discrimination, but also on the need to actively support minority cultures. 38 The Court established that the idea underlying the minority treaties signed within the framework of the League of Nations was twofold: to permit minorities to live "peaceably" alongside the rest of the population of a state and second, to preserve the characteristics, the separate identity, of the minorities. 39 The Court concluded that there were two tools for reaching these objects, namely "perfect equality" and, second, providing means for the preservation of the peculiarities, traditions and characteristics of the protected groups. 40 The Court did not, however, go into what it meant by means for the preservation of minority identities. It concentrated its argument on the issue of equality and Leonardi (ed.), The Regions and the European Community, 1993. See below chapter 4.1. 36· P. Thornberry, Is there a Phoenix in the Ashes?... , loc. cit., p. 439. 3?. See below chapter 4. 38 · PCIJ, Series A/B, No. 64, 1935. 39 · On the minority treaties in the League of Nations see below chapter 6. 4o. Id., p. 17.

34 · R. 35 ·

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asserted that equality has to be "effective" and "genuine", in other words, that the (general) abolition of private schools in Albania was de facto discriminatory against the Greek minority population. The Court did not elaborate on the essence of the right of minorities to have their own educational institutions. All international instruments on human rights, as well as other instruments relating to minority protection, include some provision(s) regarding the prohibition of discrimination. Most of these provisions make reference to race, colour, language, religion and origin as prohibited grounds of discrimination.41 Only the European Convention includes an explicit reference to "affiliation with a national minority"; in all other cases the issue is left to the appreciation of the organ implementing the relevant provision. 42 Thus, we find Article 2 and 7 in the Universal Declaration;43 Articles 2.1 and 26 in the International Covenant on Civil and Political Rights, 44 Article 2.2 in the International Covenant on Economic, Social and Cultural Rights; 45

Generally on the prohibition of discrimination in international law see E. W. Vierdag, The Concept of Discrimination in International Law, 1973, and W. McKean, Equality and Discrimination in International Law, 1983. 42 · See, however, K. J. Partsch, Discrimination in R. St. MacDonald et al. (eds), The European System for the Protection of Human Rights, 1993, pp. 571-592, at p. 576. Partsch maintains that the absence of the criterion of "association with a national minority" (even though he, probably by mistake, refers to "ethnic minority") in Art. 14 of the European Convention would not affect the content of the provision as it could be covered by using the criteria of "race" or "other status". 43 · Universal Declaration, Art. 2 reads: Everyone is entitled to all the rights and freedoms set forth in this Declaration, 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. Art. 7: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. 44 · On the work of the Human Rights Committee, see below, chapter 7.4.-7.6. ICCPR, Art. 2.1: 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 recognised 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. Art. 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the 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. 45 · Art. 2.2 of the ICESCR reads: The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 4 1.

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Article 1.1 in the American Convention on Human Rights; 46 Article 2 in the African Charter on Human and Peoples's Rights; 47 Principle VII in the Final Act of Helsinki; 48 and Article 14 in the European Convention on Human Rights and Fundamental Freedoms. 49 There are also the various documents against discrimination, the most important being the Convention Against all Forms of Racial Discrimination. Even in these instruments where the right not to be discriminated is not linked to the substantive rights ensured in the same instrument, the most active measures permitted are what is usually called "positive" or "affirmative" action. The aim of such affirmative action is always equality. Eide, in his report on "solutions to problems involving minorities", describes affirmative action in the following way: Affirmative action is preference, by way of special measures, for certain groups or members of such groups (typically defined by race, ethnic identity or sex) for the purpose of securing adequate advancement of such groups or their individual members in order to ensure equal enjoyment of human rights and fundamental freedoms. so

Eide concludes by saying - without further comments or explanations - that affirmative action can lead to group conflict, for which reason such measures should not be continued beyond the time when equality has been achieved. 51 Art. 1.1. of the American Convention reads: The States Parties to this Convention undertake to respect the rights and freedoms recognised herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, colour, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. 47 · Art. 2 of the African Charter reads: Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. It should be noted that the African Charter also includes a provision on the duty of individuals not to discriminate: Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual rejpect and tolerance. 48 · Helsinki Final Act, Principle VII: The participating States will respect human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief, for all without distinction as to race, sex, language or religion [... ] 49 · European Convention, Art. 14: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, nation or social origin, association with a national minority, property, birth or other status. On the use of Art. 14 for protection of minority identity, see below, chapter 8.2. 50· A. Eide, Protection of Minorities: Possible ways and means offacilitating the peaceful and constructive solution o_fproblems involving minorities, UN Doc. E/CN.4/Sub.2/1993/ 34, para. 172. 5 1. Id., para. 184. 46 ·

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In this sense we find "affirmative action" recognised as a permissible method in Articles 1.1 and 2.2 in the International Convention on the Elimination of All Forms of Racial Discrimination. 52 Article 1.1 permits "special measures" in order to ensure the equal enjoyment of human rights and freedoms "provided, however, that such measures do not, as a consequence, 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 [i.e. equality] have been achieved". In the same spirit Article 2.2 reads: States 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 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.

The Human Rights Committee has in its General Comment regarding nondiscrimination referred to the International Convention on the Elimination of All Forms of Racial Discrimination, and it recognises that the enjoyment of right and freedoms on an equal footing does not always mean identical treatment in every instance. As examples, the Committee mentions Article 6, paragraph 5 prohibiting the death sentence for persons below the age of 18 and pregnant women, Article 10, paragraph 3 requiring the separation of juvenile offenders from adults, and Article 25 which allows differentiation regarding certain political rights to aliens. 53 It may be noted that the Committee does not make here any reference to Article 27 and the question of possible affirmative action on behalf of members of minorities. 54 Alfred de Zayas notes that it is conceivable that a member of a majority could challenge positive discrimination on behalf of minorities and claim to receive the same benefits, e.g. subsidies for cultural centres or financial aid for textbo52· See also Art. 4 in the Convention on the Elimination of All Forms of Discrimination against Women (l 979) which aims at de facto equality. Also here the measures should be discontinued "when the objectives of equality of opportunity and treatment have been achieved". 53 · General Comment No. 18 (37) published in the HRC Report A/45/40 (1990), Vol. I, pp. 173-175, at paragraph 8. See also General Comment No. 4(13) in A/36/40 (1981), p. 299, which requires affirmative action in order to achieve equality between men and women. 54 · Compare however the wording of paragraph 6.2 in the General Comment No. 23(50) regarding Art. 27. The Committee says concerning "positive measures": "[ ... ] as long as those measures are aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under article 27, they may constitute a legitimate differentiation under the Covenant, provided that they are based on reasonable and objective criteria." Here there is no reference to equality, but to "the rights guaranteed under Article 27", i.e. language, religion and culture. For further comments see below, chapter 7.6.

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oks. But, de Zayas concludes, the HRC would probably not find a violation in such a case, provided that the distinctions are based on reasonable and objective criteria.SS To such an understanding of affirmative action one may oppose the arguments expressed by Kymlicka. He maintains that affirmative action, understood strictly as striving for equality, becomes the exception that proves the rule. Kymlicka explains: Affirmative action is generally defended as a temporary measure which is needed to move more rapidly towards a "colour-blind" society. It is intended to remedy years of discrimination, and thereby move us closer to the sort of society that would have existed had we observed the separation of state and ethnicity from the beginning[. .. ] Far from abandoning the ideal of the separation of state and ethnicity, affirmative action is one method of trying to achieve that ideal [... ] But what most post-war liberals on both the right and left continue to reject is the idea ofpermanent differentiation in the rights or status of the members of certain groups. Jn particular; they reject the claim that group-specific rights are needed to accommodate enduring cultural differences, rather than remedy historical discrimination. 56

To this one may add that affirmative action as a means to equality is justified by and is aimed at the egalitarian enjoyment of human rights and does not address the other two aspects and justifications of minority protection, namely protection of culture (cultural identity), and preservation of peace. For all these reasons non-discrimination, even in its strongest form, namely positive discrimination (or affirmative action), is not sufficient for covering the issues raised regarding protection of minorities.s 7 This view seems to be supported also by McKean, who finds that prohibition of discrimination and minority protection are not identical but are "twin concepts". SS McKean examines the concept of "special measures" in relation to the main international instruments on discrimination and points to the difference between affirmative action and measures for the protection of minorities. Positive discrimination measures, says McKean, are temporary and 55 · A.- M. de Zayas, The International Judicial Protection of Peoples and Minorities, in C. BrOlmann et al (eds.), Peoples and Minorities in International Law, 1993, pp. 253-287, at pp. 268-269. 56· W. Kymlicka, Multicultural Citizenship, 1995, p. 4. 57 · This is also the reason why I do not analyse the work of the Committee on the Elimination of Racial Discrimination (CERD). But see R. Cholewinski, The Racial Discrimination Convention and the Protection of Cultural and Linguistic Ethnic Minorities, in Revue de Droit International, 1991, No. 3, pp. 157-236. Also Cholewinski concludes that positive measures safeguarding the rights of minorities, as they are reflected in the state reports to CERD, are of a permanent character. 58· W. McKean, Equality and Discrimination under International Law, 1983, p. 159.

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(;~haeter

1 - lntrodu_c_·t1_·o_n_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

compensatory, while protective measures providing for "special rights for minority groups" (such as to maintain their own languages, culture, and religious practices, and to establish schools, libraries, churches, and similar institutions), produce "an equilibrium" between different situations and "should be maintained as long as the groups concerned wish". 59 For all those reasons it is maintained by the present author that the prohibition of discrimination is normatively different from minority protection. Non-discrimination cannot be a sufficient method of support of minority cultures.

1.2.4. Self-Determination and Minority Protection

The principle of, and the right to, self-determination is enshrined in several central documents of international law: Articles 1.2 and 55 of the UN Charter ( 1945), common Article 1 of the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights (1966), the General Assembly Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations [General Assembly Resolution 2625 (XXV), 1970], Principle VIII in the Declaration of Principles of the Final Act of Helsinki (1975) and Article 20 of the African Charter on Human and People's Rights (1981). The writings on the issue are numerous and concentrate nowadays on the examination of the applicability of the principle outside the context of decolonisation and foreign occupation. 60 Principle VIII of the Helsinki Final Act, and paragraphs 1 and 3 of Article 20 of the African Charter (as opposed to paragraph 2 of the same Article) have given strong new arguments to those arguing for the validity of the principle outside the decolonisation context. The main points of discussion seem to be the concept of "internal self-determination" as opposed to "external self-determination", i.e. the right to secession, and secondly, the concept of "peoples", and whether minorities and indigenous groups can under certain preconditions be considered to constitute "peoples" having a right to internal or (perhaps, and) external self-determination. 61

59 · Id., p. 288. 60 · For

an overview of the current discussion on self-determination see the contributions of several writers in C. Tomuschat (ed.), Modem Law of Self-Determination, 1993 and M. Koskenniemi, National Self-Determination Today: Problems of Legal Theory and Practice, in International and Comparative Law Quarterly, 1994, Vol. 43, pp. 241-269. 6 1. A. Rosas, Internal Self-Determination, in C. Tomuschat (ed.), loc. cit., pp. 225-251, and chapter 7 in R. Higgins, Problems and Process, 1994, pp. 111-128.

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In this wide spectrum of writings we find sceptics such as Hannum who defines self-determination and internal self-determination quite narrowly: Thus, while self-determination may have become 'a shibboleth that all pronounce to identify themselves with the virtuous', UN and state practice since 1960 provides evidence that the international community recognizes only a very limited right to I) external self-determination, defined as the right to freedom from a former colonial power, and 2) internal self-determination, defined as independence of the whole states population from foreign intervention or influence. 62

Among the proponents of internal self-determination as a separate aspect or element of self-determination, we find Franck, Rosas, Eide and Crawford. 63 For them, internal self-determination means the right of a people to determine its own constitution and government, equivalent to a right to democracy. Eide, Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, declared in his recent report: "Democracy is thus clearly a part of the right to self-determination". 64 Rosas is more careful in his conclusions: Jn summary, both the wording of the provisions on se(f-determination in existing human rights instruments and subsequent practice relating to them tend to speak in favour rather than against an element of internal self-determination. Jn the legal literature as well, there is a growing support for internal self-determination. The travaux preparatoires, inconclusive as they are, do not refute such a thesis. Internal self-determination is an arguable case, but the law is not entirely clear on this point. 65

The right to self-determination was recently confirmed in the Vienna DeclaH. Hannum, Autonomy, Sovereignty, and Self-Determination - The Accommodation of Conflicting Rights, 1990, p. 49. To the skeptics belong also C. Tomuschat, Democratic Pluralism: The Right to Political Opposition, in A. Rosas, J. Helgesen (eds.), The Strength of Diversity: Human Rights and Pluralist Democracy, 1992, pp. 27-47, at p. 38, and by the same author, Self-Determination in a Post-Colonial World, in C. Tomuschat, Modem Law of Self-Determination,1993, pp. 1-20. See also L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law, 1988, at p. 357. A. Heraclides discusses only external selfdetermination as an exceptional and qualified right, The Self-determination of Minorities in International Politics, 199 l. Here, issues of democracy and respect for human rights are seen as criteria for an eventual acceptance of a right to secession in cases where these rights are grossly violated. This is essentially also the view of Franck, see below chapter 3.4. 63 · T. Franck, The Emerging Right to Democratic Governance, in AJIL, 1992, Vol. 86, pp. 46-91; A. Rosas, Internal Self-Determination, and A. Eide, In Search of Constructive Alternatives to Secession, both in C. Tomuschat, loc. cit, pp. 225-251 and 139-176 respectively; J. Crawford, Democracy in International Law, 1994. 64 · Protection of Minorities: possible ways and means offacilitating the peaceful and constructive solution of problems involving minorities, UN Doc. E/CN.4/Sub.2/1993/34, para. 88. 65 · A. Rosas, in Tomuschat (ed.), Joe. cit., p. 246. 62 ·

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ration and Programme of Action (1993). The wording seems at first sight to give some support to the idea of a right of internal self-determination. In section I, paragraph 2 it is stated: All peoples have the right of self-determination. By virtue of that right they freely determine their political status, and freely pursue their economic, social and cultural development. Taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, the World Conference on Human Rights recognizes the right of peoples to take any legitimate action, in accordance with the Charter of the United Nations, to realize their inalienable right of self-determination [. .. ] 66

The text distinguishes between "peoples" and "the particular situation of peoples under colonial [ ... ] domination or foreign occupation", implying that the right to self-determination has a function also in cases other than decolonisation and liberation struggles. The Vienna Declaration recognises a right to democratic governance and accepts in fact a qualified right to secession by saying: [T]his [the right to self-determination] shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principles of equal rights and selfdetermination of peoples and thus possessed of Government representing the whole people belonging to the territory without distinction of any kind. 67

However, in the provisions concerning minorities (section I, paragraph 19 and section II, paragraphs 25-27) the Vienna Declaration makes no mention of "self-determination", and does in fact emphasise the "political and social stability of the States". The Secretary-General of the United Nations wrote in 1992 in the Agenda for Peace: The foundation-stone of this work is and must remain the State. Respect for its fundamental sovereignty and integrity are crucial to any common international Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23, 12 July 1993. 67 · Id., Section I, para. 2.3. However, it may be noted that in section I, paragraph 8, it is stated that "democracy, development and respect for human rights and fundamental freedoms are independent and mutually reinforcing". The World Conference recognised that "democracy" is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives without making here any reference to the right to self-determination. 66 ·

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Answers as to whether minorities as such have a right to self-determination (external or internal) are not all that clear. Thornberry states that the application by the Human Rights Committee of the right to internal self-determination in the International Covenant of Civil and Political Rights is gauged with reference to human rights and does not add anything to other existing rights. 69 Higgins is of the widely supported view that "peoples" in all relevant instruments is to be understood in the sense of all the peoples of a given territory and, therefore, minorities as such do not have a right of self-determination. Higgins states that the right to self-determination "allows choices as to political and economic systems within the existing boundaries of the state" but these choices are to be made by the entire population of a state. 70 Rosas, on the contrary, remarks that the term "people" is "conceptually indeterminate" and that it is possible that a minority within a state is also a separate "people", in which case internal and external self-determination overlap. 71 From the perspective of the present study, minority protection is not only about political participation and democratic governance. Minority protection is justified by, and has as its main aims, the protection of the human dignity of individuals, members of minorities, 72 the preservation of peace, and the preservation of cultures. 73 Unless special guarantees are given for the protection of minorities, democracies - understood as majority rule - may in fact lead to the persecution of minorities as the tension between minority and

An Agenda for Peace, 1992, also published together with its supplement and related UN-documents inAnAgendafor Peace 1995, UN Publication No. E.95.1.15 69 · In this, Thornberry agrees with Tomuschat. Also Crawford argues for internal selfdetermination (the right to democracy) through a combination of Article 1 and Article 25 in the ICCPR. 7o. R. Higgins, Problems and Process, 1994, pp. 123-124. 7 1. A. Rosas, in Tomuschat, Joe. cit., p. 231. Cf. the African Charter on Human and Peoples' Rights, which does not define the concept of "people", does not include a provision on protection of minorities, but refers in its preamble and in Article 2 to race, ethnic group, colour, sex, language, religion, political opinion, national and social origin, fortune, birth and other status as prohibited grounds of discrimination. 72. The issue of definition of minority is further discussed in chapter 5. 73 · On the three justifications see below chapter 4. 68 ·

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majority becomes apparent. 74 As we have seen the discussion regarding a "right to democratic governance" is quite recent and can hardly be seen as such as lex lata. Elements of democratic governance are incorporated in various rules of international law, such as Article 25 of the International Covenant on Civil and Political Rights, but they are only fragments of a system of democratic governance. 75 It may perhaps be argued de Lege ferenda that minority protection should be a part of the right to democratic governance, but this is not a task for this thesis. The main reason, however, for not analysing in depth issues of democratic governance is that democracy is inadequate. Eide correctly observes that even if internal self-determination as a right to democratic governance is accepted - "[d)emocracy cannot fully safeguard the concerns of minorities".76 Koskenniemi argues along the same lines and notes the risks of manipulation of votes and plebiscites and the impossibilty of drawing borders without leaving minority enclaves. 77 Democracy may be seen as enhancing and even as being a prerequisite for human dignity and peace. 78 However, a right to democratic governance does

An example of this risk is the situation of Roma in Eastern Europe after the fall of the communist regimes. Many voices were heard that democracy in fact meant even more marginalisation for the Roma. See for instance Dagens Nyheter, 30 January 1994. The argument is also made by F. Folkeryd and I. Svanberg in their book Gypsies in the posttotalitarian states,1995. 75 · Article 25 of the ICCPR, the right to political participation and the 1992 UN Declaration on Minorities were discussed at a Workshop at the Northern Institute for Environmental and Minority Law, University of Lapland, Finland, 15-17 September 1995. In the Workshop Report (unpublished) it is stated: "As regards purpose, the right of political participation of minorities and indigenous peoples may have the effect of increasing the wellbeing of minorities and indigenous peoples. However, participants stressed that the right of political participation should be understood as a right and not simply a means of securing these ends. At the same time, it should be emphasized that ensuring the vibrance of minority and indigenous cultures benefits society as a whole not just by diminishing tensions between groups but also by contributing to the richness and diversity of life within the State.[ ... ] Minority rights which go beyond basic human rights are necessary to meet the legitimate aim of safeguarding the distinct identity of persons belonging to minorities." 76 · A. Eide, in Tomuschat (ed.), loc.cit., p. 155. Eide points also to the potential conflict between self-determination of minorities and democracy when he writes (at p. 149): "As the use of democracy as a basis of governance has become more widespread among States, the closer the co-operation of States in intergovernmental organisations, the more genuine the consensus in seeking to protect the stability of States and their territorial integrity." 77 · M. Koskenniemi, National Self-detennination Today.. ., loc. cit., p. 263, (at note 81). 78 · On the relation between democracy, human rights and peace see D. P. Forsythe, Human Rights and Peace, 1993. On the tension between democracy and minority rights see S. Mo, Demokrati og minoritetsrettigheter, in Mennesker og rettigheter, 1994, No. I, pp. 70-74. 74 ·

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not as such give answers to questions regarding the preservation and protection of culture and minority identity. This may be seen as one of the reasons for the existence of minority "issues" and claims in several democratic states. 79 A right to democratic governance entails the participation of minorities in decision-making affecting them, but does not give guidelines regarding for instance language issues, names, education, cultural institutions and associations and their support. In summarising, we have seen that self-determination, external but also internal, does not give answers to important aspects of minority protection. External self-determination will always lead to the creation of other minorities, while internal self-determination does not necessarily provide us with the tools for an active protection of the identity of minorities.

1.3. Minority Protection: Solely a European Issue? The present thesis claims to be of global relevance, even though an important part of it concerns developments and instruments from the European continent. This is unavoidable since very much of the legal discussion on minorities has in fact taken place in Europe, be that due to legal tradition or simple necessity. Gurr's project "Minorities at Risk" has recently presented data on 233 different "disadvantaged minorities". Even though the situation varies from continent to continent it is clear that these groups are to be found all over the world and in almost all countries, though in varying proportions. 80 In the present dissertation it is suggested that conclusions regarding minority protection in Europe can serve as a source of inspiration - or as an example to avoid - for the rest of the world. In addition, one should not overlook the fact that the work and decisions of global and regional international organisations are influencing each other. In this respect it may be recalled that the preparatory work for the UN human rights conventions, which were later to be called Covenants, was more or less completed long before they were adopted in 1966 and this work was widely used as the basis of the work for the European Convention for the Most states in Western Europe, states considering themselves and considered by others as democracies, are facing claims for minority protection. The case of the Sarni in Sweden and the Bretons in France may serve as examples. 80 · The statistics depend obviously on the criteria of identification of the disadvantaged minority groups which are the object of the study by the "Minorities at Risk" project. The maps included in the book show clearly that there are such disadvantaged minorities in all the continents. The overview includes also special chapters regarding minorities in Western Democracies and Japan, Eastern Europe, North Africa and the Middle East and Africa South of the Sahara (chapters 6-10). See T. R. Gurr, Minorities at Risk, 1993. 79 ·

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protection of Human Rights and Fundamental Freedoms which was signed in 1950. 81 For all the above reasons, it is claimed that this study is not Eurocentric. This is important to remember as occasional attempts to argue that the minority discussion is, for example, not relevant in Africa occur from time to time, even though they seem to be badly founded. 82 They bring to mind the efforts of Latin American states to argue, during the preparatory work for a minority provision in the International Covenant on Civil and Political Rights, that minorities did not exist in their part of the world, efforts which resulted in the introduction of the confusing clause "in those States in which ... minorities exist" in Article 27 of the International Covenant on Civil and Political Rights. 83

1.4. Sources Used in the Present Thesis The understanding of international law as a process and the flexible view regarding the actors participating in this process make it necessary to examine not only the lex lata of today, i.e. treaty provisions in agreements which are in force at present, and valid customary rules, but also past agreements, as well as international documents which are not, or not yet, legally binding: as examples one may name the documents concluded by or within the League of Nations; Resolutions of the United Nations bodies (General Assembly, ECOSOC, Commission on Human Rights,etc.); Resolutions and Declarations of UNESCO; Reports, Recommendations and Resolutions of the Parliamentary Assembly of the Council of Europe; the documents of the Organisation for Security and Cooperation in Europe, including agreements, Bl. On the origins and drafting of the European Convention see P.- H. Teitgen, introduction to the European Convention on Human Rights, in R. St. J. Macdonald et al. (eds.), The European System for the Protection of Human Rights, 1993, pp. 3-14. For the preparatory work for the ICCPR see D. McGoldrick, The Human Rights Committee ... , 1994, pp. 3-43. 82 · These efforts have even found their way in the report of the rapporteur of the UN SubCommission, A. Eide, E/CN.4/Sub.2/1993/34, paras. 230-235. Eide cites Professor Umozurike, former chairman of the African Commission on Human and Peoples' Rights. Umozurike states that the problem of African minorities is different from that of European minorities and that their desire is to operate freely as individuals with less emphasis for them as a group. At the same time the Governments of Senegal, Madagascar, Algeria and Burundi in their responses to the report all deny completely the existense of minorities in their territory, and emphasise the homogeneity of their population. These reactions come in conflict with the detailed empirical information in T. Gurr, Minorities at Risk, 1993. See map over the African continent at p. 31, and the contributions by B. Harff, Minorities, Rebellion, and Repression in North Africa and the Middle East, pp. 217-251, and J. R. Scarritt, Communal Conflict and Contention for Power in Africa South of the Sahara, pp. 252-289. 83 · P. Thornberry, International law and the Rights of Minorities, 1991, pp. 150 and 154158.

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expert reports, and recommendations of the High Commissioner on National Minorities. Attention has to be paid to implementation procedures in order to see the actual function of the documents in the international society. For this reason the judgments and advisory opinions of the Permanent Court of International Justice, the European Court and Commission on Human Rights, the views of the Human Rights Committee and the reports of the High Commissioner on National Minorities are given special attention. The decisions of courts and the writings of jurists may be seen as sources of law but also as "law-determining agencies for ascertaining the contents of the actual rules of international law". 84 It is hoped that this work will be not only of a theoretical and historical interest, but also of use for international lawyers, non-governmental organisations, diplomats and minorities themselves. For this reason I have preferred to present the analysis in chapters dealing with minority protection in various international fora. The universal fora are examined first, i.e. the League of Nations and United Nations, followed by the regional fora: the Council of Europe and the Organisation for Security and Co-operation in Europe. 85 It is hoped that this structure will facilitate the orientation of the material, and will adequately reflect the development of justification aspects in each part. 86 Part I of the book sets the theoretical framework, which is essential as it forms the point of departure for the analysis which follows in Part II. It is, however, hoped that for those interested more in the practical aspects, it will be possible to proceed directly to Part II. 87

Schwarzenberger and E.D. Brown, A Manual of International Law, 1976, pp. 18, 28. 85 · Chapters 6-9. It may be noted that I do not include any case-studies of particular minorities or a few countries' implementation of existing international rules. It is maintained that apart from being unnecessary for the purposes of the present study which focuses on international law, such an enquiry would disproportionally enlarge the scope of this thesis. 86 · I have decided to follow this modell even though I am aware that it makes finding the answers to "vertical" questions, e.g. "what does international law say regarding political participation of minorities?" more complicated since one has to look through all the four chapters. I have tried to compensate for this by the plentiful use of subtitles and by the index which can be found at the end. 87 · No documents on minority protection are appended as such to the present thesis. A selection of documents can be found in A. Phillips and A. Rosas, Universal Minority Rights, 1995. 84 · E.

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CHAPTER2 RIGHTS AND PROTECTION

In this chapter I shall examine the concepts of rights and protection in international law. International instruments and also experts in international law often use these terms synonymously. It is maintained by the present author that such a use is not correct and it tends to result in the use of the word "rights" for any kind of argument. The danger of "rights inflation" has already been discussed by several writers. 1 In addition, this preference for the word "rights" may convey the impression that international law can deal only with issues of rights and is not sufficient as a tool for other forms of protection. I will start by examining the concepts of rights, legal rights, human rights, collective rights and minority rights, and then will examine the concept of protection. The present dissertation is envisaged as a work on international law. It seems, however, valuable to study briefly some of the underlying issues of legal philosophy and jurisprudence which have marked the development of international law and the human rights theory. The comments below should not be seen as an exhaustive presentation of the various schools of thought; they touch solely upon the issues of relevance for understanding the idea of minority protection and minority rights in international law.

2.1. The Concept of Rights The concept of rights is a central concept in jurisprudence and thousands of pages have been written trying to define and explain it. 2 The analysis of the concept of rights has, however, taken place exclusively in the domain of philosophy. As regards legal rights, analysis has taken place in the field of (internal) law, and legal philosophy and also in the constitutional legal discussion. Very little has been done as regards trying to draw conclusions in respect of international law. In spite of the fact that the subject of "human rights" is nowdays a central part of international law, very few efforts have I. P. Alston, A Third Generation of Solidarity Rights ... , in Netherlands International Law Review, 1982, Vol. 29, pp.307-322 and Conjuring up New Human Rights ... , in AJ/L, 1984, Vol. 78, pp. 607-621. 2 · In the vast literature on the concept of rights one may mention a few classics: W. N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 1919; R. Dworkin, Taking Rights Seriously, 1977; A. White, Rights, 1984; see also the collection by C. Nino (ed.) of articles by various authors in the volume entitled Rights, 1992.

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been made to synthesise the various theories regarding rights. 3 In dictionaries the noun "right" is defined as "just or legal claim" and "what one has a just claim to". 4 Two conclusions can be drawn from this; first, rights are most often understood as legal rights, i.e. interests protected by law and second, that rights have to be legitimately justified in order to be supported by a claim. Most writers propose as a general account of rights a definition which emphasises the correlativity of rights and duties. 5 According to these writers, to say that someone has a right is to say "that an aspect of their well-being is a ground for holding another to be under a duty". 6 This broad definition applies - according to this view - to legal as well as non-legal rights (moral rights). In international human rights law it is often claimed that individual human rights correspond to state duties. The definition of rights through reference to duties has been rightly criticised for being circular; when we are asked why someone has a duty we answer by referring to another person's right. 7 In addition, it is possible to imagine duties not corresponding to rights. Consequently, a definition of rights solely through reference to duties is not satisfactory. Nearly all contemporary rights theories have their basis on Hohfeld's model from 1919. 8 Hohfeld talks of four categories or aspects of a right: a) stricto sensu right (today often called "claims"), b) privilege (absence of a claim against the bearer of the privilege), c) power (possibility to change legal

positions) and c) immunity (absence of someone else's power to change the

legal position of the power-holder). Hohfeld did not, however, give any elaborate definitions. He preferred to exemplify these categories by describing actual legal situations. Because of this it is difficult to draw immediate con3 · An exception to this is the dissertation of H. Kanger, Human rights in the U.N. Declaration, 1984 in which Helle Kanger develops and applies the model of Stig Kanger based on

Hohfeld's theory of rights on all the rights in the Universal Declaration of Human Rights. The method is, however, very complicated and results in 26 different categories of "rights" through a combination of the concepts claim, liberty, power, immunity, counterclaim, counterliberty, counterpower and counterimmunity. This model does not seem to give any answers to questions such as the role of the state, the importance of enforcement, possible bearers of rights other than individuals. 4 · Chambers 20th Century Dictionary, 1983.

5 · For a summary presentation of the main variations on theories regarding the relation between rights and duties see A. White, Rights, 1984, pp. 55-73.

Raz, Legal Rights, in Oxford Journal of Legal Studies,1984, Vol. 4, p. 1. N. MacCormick, Legal Right and Social Democracy, 1982, p. 143. MacCormick criticises this circularity and at the same time he takes us closer to the concept of "human right" as he writes: "A person has the right if he has a right such that the state would wrong him by taking it away. True. But what's a right?" 8· W. N. Hohfeld, Joe. cit.

6 · J. 7·

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clusions on the suitability of his model in the framework of international human rights. Nino has developed the Hohfeldian rights and summarises the various theories regarding rights in five propositions: a) rights as the absence of prohibitions; b) rights as direct permissions; c) rights as correlates of active or passive duties of others; d) rights as claims; e) rights as immunities; 9 Nino proposes an analysis of rights which covers both will-theories (inspired from Savigny) and interests-theories (inspired from Kant). He concludes that rights refer to: a) the enjoyment of some good or the avoidance of some evil; b) the exclusion of actions of third parties which involve some harm to the holder of the right or the requirement on third parties which involve a benefit for the holder of the right. 10 I chose here Nino's analysis as point of departure because it has been developed through and for a human rights vocabulary. Nino's description is a useful starting-point as it reflects aspects of rights which are often discussed also in international law. In international law we find discussion on positive contra negative rights. Positive rights imply that the state must actively support and protect the rights, while negative rights imply that the state must avoid any interference which might harm the holder of the right. Even so, we have not yet given a definition of what constitutes a right. It is maintained that the crucial element in the concept of rights is that of "good" or "interest", which forms the basis of rights. MacCormick sees rights as interests which "ought to be secured to individuals" and he defines rights in the following way:

9· C. Nino, The Ethics of Human Rights, 1991, pp. 25-28. IO. Id., pp. 30-34. Nino is not absolutely clear about whether these two situations exist simultaneously or whether they might exist alternatively. It seems, however, that he takes the latter position. A right can be either the enjoyment of some good or the exclusion of actions of third parties or the imposition of obligations; but it may be both at the same time. For Nino it becomes essential to find out whether the protected good is so important that the right-holder ought to have access to it, and that it would be wrong to deprive him of it. In this respect Nino's theory covers also Dworkin's view of rights as trumps against measures taken in pursuit of collective goals. See R. Dworkin, Taking Rights Seriously, 1977.

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Chapter 2 - Rights and Protection {T]o ascribe to all members of a class Ca right to treatment Tis to presuppose that Tis, in all normal circumstances, a good for every member of C, and that T is a good of such importance that it would be wrong to deny it or to withhold it from any member of C. 11

As mentioned above the concepts of "good" and "benefit" (including that of absence of harm) exist also in Nino's definition of "right". I find that this definition - which is given below in its developed version regarding legal rights - is particularly appropriate for an analysis of international law and human rights. It encompasses the possibility of discussing human rights as rights of a special class (that of human beings) and it also leaves open the possibility of elaborating on the issues of class, or group, in the conceptualisation of rights. 12

2.2. Legal Rights Legal rights are simply those rights which are recognised in law; i.e. by the legal institutions. 13 MacCormick develops this by saying that legal rights are the rights which are conferred by law and the law has the effect of making it legally wrongful to withhold the rights to treatment T from any member of

c.

The present author agrees with the view of Raz that the existence and content of the law can be determined without resorting to any moral argument (Raz calls this "The Sources Thesis"). This should not be interpreted to mean that rights have nothing to do with moral judgments and preferences. These values apply when considering the issue of justification of rights, which is different from the aspect of creation and enforcement of rights. The area where (international) law and morality overlap involves the question of protected interests rather than recognition of rights. The above analysis touches only upon the formal part of rights i.e. their formal recognition and methods of protection. In order to answer to the question "is there a right X?" one has to know which are the relevant legal institutions having the power legally to recognise rights and which are the "sources" of law, i.e. which form the act of legal recognition should have. This is why from this point of view the question of legal rights in international law is intimately N. MacConnick, loc.cit., pp. 160-161. In addition a theory of interests is preferred to a theory of will as the latter depends exclusively on subjective wishes and desires and enhances an egoistic view of society: Will theories have also the weakness of not being able to deal with the question of limitations on the possibility to waive a right. See MacCormick's analysis regarding children's rights, loc. cit., pp. 154-166. 13 · J. Raz, Legal Rights, Joe. cit., p. 16. ll.

12·

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connected to the question of the sources of international law. However, a theory of legal rights has to analyse not only the process of formal recognition and of the enforcement of rights but equally their justification.14 Posing questions regarding the justification of rights aims at understanding what goals rights are designed to promote. This is why the task of the present study is not only to describe and analyse the legal standards relating to minority protection, but also to examine their justification.

2.2.1. Human Rights

The historical and philosophical foundation of the field of international law called "human rights" is considered to be the doctrine of natural law and natural rights. Lauterpacht, who was one of the first international lawyers to develop the idea of human rights in connection with the new order in the world after the Second World War, entitles a section of his book on International law and Human Rights "The Law of Nature and the Rights of Man". 15 Lauterpacht elaborates on the concepts of natural rights, natural law, the rights of man, the law of nations, human rights, the inalienable rights of man and fundamental rights. Lauterpacht seems to think of these terms as terms used by different traditions of natural law thinking rather than as distinguished and separate concepts. He asserts that in the Charter of the United Nations, for the first time, the individual human being appears as entitled to fundamental human rights and freedoms. 16 Before that there was, according to Lauterpacht, "occasional recognition of some fundamental human rights in treaties providing for religious freedom and the cultural and political rights of minorities" . 17 Also in recent years the terms "natural" and "human" rights have been used synonymously. In one of the best treatises on natural law Finnis declares that "human rights" is a contemporary idiom for "natural rights". 18 14· See for instance Coleman and Kraus who mention as possible foundational theories those which are liberty-based and those which are in some sense welfare-based. J. L. Coleman and J. Kraus, Rethinking the Theory of Legal Rights, in The Yale Law Journal, 1986, Vol. 95, pp. 1335-1371. 15 · H. Lauterpacht, International Law and Human Rights, 1950. See specially pp. 73-141. 16· Id., p. 33. Also the use by Lauterpacht of the standard phrase "rights and freedoms" has its explanation in theoretical traditions rather than in defined conceptual differences between rights and freedoms. 17· Ibid. 18 · J. Finnis, Natural Law and Natural Rights, 1980, p. 198. It is interesting to note that also Finnis uses Hohfeld's model of rights.

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All these traditions of legal and political theory are in fact reflected in the preamble of the Universal Declaration of Human Rights where we find reference to "the inherent dignity" and "the equal and inalienable rights of all members of the human family", "fundamental human rights" and "human rights and fundamental freedoms" . 19 International law often approaches the issue of human rights through the avenue of "subjects of international law". Lauterpacht, for instance, advocated strongly the recognition of individuals as subjects of international law, i.e. as bearers of international rights and duties. 20 On the other hand many writers set strict criteria for recognition of international legal personality, including the capacity to make claims in respect of breaches of international law, the capacity to make treaties and agreements valid on the international plane and the enjoyment of privileges and immunities from nationaljurisdiction. 21 The conclusion is that even though the individual has a special position in international law through diplomatic protection, protection of aliens, individual criminal responsibility and the rules of human rights, it is not possible to speak generally of individuals as subjects of international law. Or, as Brownlie puts it, to classify the individual as a subject of the law is "unhelpful". 22 Another possible way of approaching human rights is that of trying to define what are "human rights" through a definition of the bearer of these rights. The most common view is that human rights are such moral and -when recognised by the law- legal rights that everyone is entitled to for the simple reason that he or she is a human being. This definition fits well with the earlier presented definition of MacCormick. Human rights are the legal rights recognised to all human beings and which protect their interests in the sense of their well-being (or, as is often described, their dignity). According to this definition the underlying interest of all human rights is human dignity. Such a definition satisfies an egalitarian aspiration but is not totally unproblematic. 23 One of the problems is that such a definition reflects only the traditional view of human rights as legal rights of individuals and does not take into consideration the position and role of groups such as minorities. The issue of 19 · Universal Declaration of Human Rights, GA Resolution 217 A, III, 1948. For an analysis of the history and content of the Declaration and a discussion on the concept of human rights see B. G. Ramcharan (ed.), Human Rights: Thirty Years after the Universal Declaration, 1979. 20 · H. Lauterpacht, loc. cit., p. 45-47 and P. Sieghart, The International Law of Human Rights, 1983, pp. 16-17, note No. 21. 2 1. I. Brownlie, Principles of Public International Law, 1990, pp. 58-70. 22 · Id., p. 67. 23 · C. Nino, The Ethics of Human Rights, 1991, p. 34.

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individual and group (or collective) rights will be discussed below. Yet another complication is the fact that such an approach through strict egalitarian liberalism could not accept the so-called positive discrimination of individuals or groups or special measures, since, according to this view, all human beings should be treated on an equal basis. 24

2.2.2. Individual Rights versus Collective Rights25

It has been shown above that the theory of human rights is based on an analysis of the rights of the individual. In its historical evolution it reflects the nature of human rights as rights belonging to the individual as a human being and functions primarily as a limit against state power; in its logical construction the theory of human rights reflects a two- or three-term relation; in Hohfeld's model a person A has a claim, liberty/privilege, power or immunity vis a vis B in relation to a situation X. This model has the advantage of showing that the issue of acquisition and recognition of rights is different from the issue of enforcement of rights. Therefore the Hohfeldian model is still useful in particular in the field of international law where it is often assumed that bearers of rights are only those who can initiate an enforcement action. Lauterpacht wrote already in 1950 that there is a failure to observe the distinction between the recognition of rights enduring to the benefit of the individual and the enforceability of these rights. 26 The definition of legal rights we accepted above refers only to the recognition of goods (or "advancing of interests" in MacCormick's language). Accordingly, the argument that collectivities cannot have rights because they do not have locus standi in international law appears to be a very weak argument. The recognition of rights is independent of the possibilities of enforcement. 27

A basic problem with these rights theories is their individualistic character. We are here talking of what Nino describes as the fatal meeting in the late 24 · On

the issue of positive discrimination see above chapter 1.2.3. term collective rights is used as synonymous to the term "group rights". The latter term is often considered to be politically polluted as it was used in South Africa. Other writers prefer the term "communitarian rights"; see M. Galenkamp, Collective rights: much ado about nothing?, in Netherlands Quarterly of Human Rights, 1991, Vol. 9, No. 3, pp. 291-307. As the present thesis deals primarily with the right to cultural identity there are arguments in favour of using "communitarian rights", a term which emphasises the protection of the traditions (identity) of specific communities. In spite of this I finally chose the term "collective rights" as more established in international law and as a wider term covering also rights of peoples. 26 · H. Lauterpacht, Joe. cit., p. 27. 27 · The criterion of enforcement has lead some writers to deny the quality of legal right to all human rights. See A.P. Rubin, Are Human Rights Legal?, in Y. Dinstein and M. Tabory (eds.), The Protection of Minorities and Human Rights, 1992, pp. 33-58. 25 · The

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1970s and 1980s between the spirit of Kant and the ghost of Hegel. 28 Communitarians criticised liberalism because it bases morality on elements of human rights which cannot be supported without a conception of the good, which means that liberalism, in spite of the effort to make it look objective by referring to the formal requirements for the recognition of rights, is not objective or neutral and consequently does not respect equally the autonomy of all individuals. Communitarians emphasise the social dimension of the individual; the consequence is a relativisation of the rights and duties of individuals to their particular attachments to other individuals and the particular features of their society (this special variation is often described by the name "particularism"). 29 Supporters of liberalism answer by pointing out the danger of a totalitarian vision of society and tribalist or nationalist attitudes. 30 The conflict between liberal and communitarian views of rights is strongly reflected in the international law discourse concerning an alleged western-individualist, absolute concept of human rights against a third-world, communitarian and relativistic concept of human rights. 31 In the heart of this debate we find the much debated issue of the universality of human rights. 32 Recently the World Conference on Human Rights affirmed that universality is beyond question but also pointed to the "significance of national and regional particularities and various historical, cultural and religious backgrounds". 33 This statement does not speak of collective rights but it does not rule out the existence of or the possibility of recognising - such collective rights. International lawyers adopt one of the two following positions regarding colC. Nino, Joe. cit., p. 83. Among the representatives of communitarianism one may name the philosophers M. Sandel, Liberalism and the Limits of Justice, 1982 and C. Taylor, Sources of the Self, 1989 and the political scientist V. van Dyke, Human Rights and the Rights of Groups, in American Journal of Political Science, 1974, Vol. XVIII, No. 4, pp. 725-741. For an illuminating discussion on culture, liberalism and individual rights see the contributions of C. Taylor, The Politics of Recognition (pp. 25-73), M. Walzer's Comment (pp. 99-103) and J. Habermas, Struggles for Recognition in the Democratic Constitutional State (pp.107-148), in A. Gutmann (ed.), Multiculturalism - Examining the Politics of Recognition, 1994. 30· C. Nino, The Communitarian Challenge to Liberal Rights, in Law and Philosophy, 1989, Vol. 8, pp. 37-52, and his 4th chapter in The Ethics of Human Rights, 1991, pp. 83126. 3 1. For on interesting discussion on issues of the so called cultural relativism of human rights see A. An-Na'im and F. Deng (eds.), Human Rights in Africa: Cross-Cultural Perspectives, 1990. R. Howard writes here on Group versus Individual Identity in the African Debate on Human Rights, pp. 159-183. 32 · The final document of the World Conference on Human Rights is entitled Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23. It has been published also in HRLJ, 1993, Vol. 14, No. 9-10, together with the declarations from the three regional preparatory meetings in Tunis, San Jose and Bangkok. 33 · See section I, para. 5 of the Vienna Declaration (1993).

28 ·

29 ·

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lective human rights: a) They reject the idea of collective rights because it threatens the territorial integrity of states. Another frequent ground of rejection is that collective rights would pose a threat to individual rights; 34 or, b) They accept the idea of collective rights on purely empirical grounds. They claim that there are collective rights because law, both national and international law, has recognised such collective rights. Van Dyke already in 1974 made an overview of constitutional arrangements in many countries and concluded that rights of groups are well established. 35 Also Dinstein, in 1976, seems to argue along the same lines; collective human rights are already recognised by international law as regards peoples and minorities. According to Dinstein, international law recognises the following collective rights: peoples' right to physical existence, self-determination and natural resources and minorities' right to physical existence and to the preservation of a separate identity. 36 This is also the argument followed by Lerner in his examination of group rights in international law. 37 It is maintained here that neither of these extreme positions is correct. The

first negative attitude towards collective rights ignores that what is known as external self-determination, i.e. a right to secession, is only a small part of the collective rights under discussion. Other proposed collective rights such as the right of peoples to existence, the right of minorities to identity, the right to a clean environment etc. do not pose a threat to territorial integrity. With these remarks I do not wish to underestimate the potential risks to state sovereignty underlying the discussion on self-determination.

The rejection on the basis of risks to individual rights ignores the fact that conflicts of rights are common also as regards individual rights, thus leading to a debate about priorities. In other words, the existence of conflicts calls for a balancing of the underlying interests. If one accepts the recognition of This is often the argumentation of state representatives in international meeting and sessions of international organisations. It is reflected in clauses such as those in Article 8 of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992): "Nothing in this Declaration may be construed as permitting any activity contrary to the purposes and principles of the United Nations, including sovereign equality, territorial integrity and political independence of States." On the declaration see below chapter 7.7. 35 · V. van Dyke, Human Rights and the Rights of Groups, in American Journal of Political Science, 1974, Vol. 18, No. 4, pp. 725-741 and Justice as Fairness: For Groups?, in American Political Science Review, 1975, Vol. 69, pp. 607-614. 36· Y. Dinstein, Collective Human Rights of Peoples and Minorities, in International and Comparative Law Quarterly, 1976, Vol. 25, pp. 102- 120. 37 · N. Lerner, Group Rights and Discrimination in International Law, 1991. It is interesting that Lerner speaks of the move from "minority protection" to "group rights" but does not seem to recognise any particular "minority rights". 34·

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collective rights this does not imply automatically that those rights should always be given priority. 38 The second, positive, attitude towards collective rights links without hesitation collective rights and human rights and identifies collective rights and human rights. 39 As we have seen, human rights are rights recognised to every individual because he or she is a human being. It has been asserted that human rights are not only individualistic but also deeply egalitarian. As a preliminary conclusion it is possible to say that the concept of collective rights seems not to fit well in this framework. Galenkamp notes, I believe correctly, that the concept of human rights is a concept with modem connotations, mainly designed for protecting individuals against the modem state, while collective rights are linked to a traditional world-view and aim at the protection of some specific and distinctive characteristics of traditional groups. It is therefore "implausible", concludes Galenkamp, to denote collective rights as "human rights". 40 This view has been criticised by Gilbert who finds that whether collective rights are sui generis or a mere sub-group of human rights is ultimately irrelevant, since what matters is whether there is a mechanism to enforce the rights and who has locus standi to do so. 41 I have rejected the idea that the existence of rights depends on implementation and enforcement mechanisms and therefore consider Gilbert's criticism to be unfounded. After this general introduction to rights theory and a few of its problematic aspects, the question of minority rights and in particular the right to identity should be discussed more thoroughly. Are minority rights individual or collective? Or both? Are minority rights also human rights? Below, I will try to 38 · In his article on individual Rights and Collective Goods R. Alexy concludes that individual rights have primafacie priority over collective goods. In C. Nino (ed.), Rights, 1992, pp. 163-181. An earlier version in German was published in internationales Jahrbuchfilr Rechtsphilosophie und Gesetzgebung, 1989, pp. 49-70. See also A. Peczenik, On Law and Reason, 1989, who agrees with Alexy and notes that "the reasons which one thus must weigh and balance against rights include collective values, e.g., environment, order, culture and progress. The latter are not reducible to the individual rights ... The best way to enforce collective goods is by collective processes, and this shows that collective goods are not a simple sum of individual rights", (at p. 303). 39 · See for example the above mentioned titles of articles by Dinstein and van Dyke. Also Sieghart includes collective rights - in which he encompasses the right to self-determination, liberation, and equality, right to peace and security, right to natural resources, right to development, right to environment and minorities' rights - in his thorough presentation of The international Law of Human Rights, 1983. 4o. M. Galenkamp, Collective Rights: Much Ado About Nothing, in Netherlands Quarterly of Human Rights, 1991, Vol. 9, No. 3, pp. 291-307. 4 1. G. Gilbert, The Legal Protection Accorded to Minority Groups in Europe, in Netherlands Yearbook of international Law, 1992, Vol. 23, pp. 67-104, at p. 80.

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show that "minority rights" may be both individual human rights and collective rights. For this analysis the starting point is the right to identity as incorporated in Article 27 of the International Covenant on Civil and Political Rights. 42 This provision serves as point of departure since it is still today the only legally binding, universal provision on the right to identity of minorities.43 Article 27 as such will be analysed later on through its application by the Human Rights Committee. For this preliminary discussion it suffices to note that the right to identity covers the right of persons belonging to minorities to enjoy their own culture, to profess and practise their own religion, or to use their own language.

2.2.3. Minority Rights

Article 27 of the ICCPR refers to "persons belonging to ... minorities". 44 The fact that Article 27 is placed in the context of a document on individual civil and political rights (with the exception of Article 1 on self-determination of peoples), that the travaux preparatoires to the Covenant emphasise that minorities do not have a legal personality in international law, and the fact that the Optional Protocol to the Covenant recognises locus standi only to individuals, are all arguments supporting the position that Article 27 guarantees only individual rights. In his "Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities", Capotorti, Special Rapporteur of the UN Sub-Commission, confirms that Article 27 grants individual rights. 45 He adds, however, that the rights in question will be exercised by their holders in community with the other members of their group and this is "understandable when it is considered that the rights provided are based on the interests of a collectivity, and consequently it is the individual as a member of a minority group, and not just any individual, who is destined to benefit from the protection granted by article 27". 46 Capotorti does not explain what he means by saying that the right is "exercised in community". The sentence is, however, inportant as it makes clear that the rights are based "on the interests of a collectivity". I use here the term "right to identity" as an umbrella concept for all the three separate rights incorporated in Article 27 of the ICCPR: right to culture, right to religion and right to language. The term as such does not appear in Article 27 of the Covenant but it has been used previously by several authors, e.g., Dinstein , loc. cit., and Thornberry, International Law and the Rights of Minorities, 1991. 43 · On the newly adopted Framework Convention of the Council of Europe see below chapter 8.4. The Framework Convention has not yet entered into force. 44 · On the inclusion of this writing during the preparatory work see below chapter 7 .2. 45 · UN Doc. E/CN.4/Sub.2/384/Rev.l ("the Capotorti study"), paras. 206-210. 46 · Id., para 210. Capotorti has reconfirmed his original view on Article 27 in his article Are Minorities Entitled to Collective International Rights? in Y. Dinstein and M. Tabory (eds.), The Protection of Minorities and Human Rights, 1992, pp. 505-511. 42 ·

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To return to the definition of legal rights as "interests protected by law"; in this definition the interest-holders are the right-holders and, consequently, under Article 27 the right-holder should be the collectivities whose interests are protected. Once again, I point out that being the right-holder does not automatically entail having locus standi before an international court or other instance of adjudication. In any case, Capotorti does not place the essence of rights in the locus standi or enforcement since he recognises the right to self-determination in Article 1 of the International Covenant on Civil and Political rights as the only genuine collective right in spite of the fact that the Covenant gives only to individuals the right to submit communications (First Optional Protocol to the ICCPR). 47 According to Thornberry the rights in Article 27 are a "hybrid" between individual and collective rights because of the community requirement. 48 He recognises the difficulty and challenge of the contemporary international law of minorities to "grapple with the group dimension within the individualistic framework of human rights work", even though this effort results in "doctrinal impurity". 49 Consequently, he analyses the right to existence as a collective right through the Convention on the Prevention and Punishment of the Crime of Genocide, the right to identity - in principle an individual right but with a collective dimension - through Article 27, the individual right not to be discriminated against through the numerous provisions in international and regional instruments of human rights and, finally, the rights of indigenous peoples. The structure of the analysis shows that only the right to existence as enshrined in the Genocide Convention is seen beyond doubt as a collective right. In 1988 the UN Human Rights Commission's Working Group on the rights of minorities asserted during the discussions on a draft of a Declaration for minority rights that "the fundamental question of whether to follow an individual or collective rights approach remains unresolved". 50 Through the adoption of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, finally adopted by the UN General Assembly in December 1992, the answer was given again in favour of individual rights. 51 Also in the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in 47 · However, the views of the Human Rights Committee on the case A.D. v. Canada regarding the Mikmaq tribal society, UN Doc. A/39/40, indicate that an individual can bring a self-determination claim in a representative capacity. See below chapter 7.5. 48 · P. Thornberry, international Law and the Rights of Minorities, 1991, p. 173. 49 · Id., p. 12. 50. UN Doc. E/CN.4/1988/36, para. 16. 5 1. See below chapter 7.7.

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June 1993 we find a consistent use of the phrase "rights of persons belonging to minorities" as well as references to the human rights of those persons. 52 So far we have seen that these days international law approaches minority rights primarily as rights of individuals and within the context of human rights. We have also asserted that groups as interest holders may be right holders and that there are no strong arguments against collective rights in principle. Below it will be argued that the concept of rights is not sufficient in order to describe the activities of international law concerning the minority issue. It is submitted that the term "minority protection" is therefore preferable.

2.3. The Concept of "Protection" In the previous chapter the concepts of rights, including legal and human rights, individual, collective, and minority rights, were examined. In this chapter I shall examine the use of the the term "protection" in international law and in particular with regard to minorities. Protection is used in various contexts in international law. The concept of protection has been used in relation to diplomatic protection. 53 Diplomatic protection is the possibility afforded to states to make international claims when their nationals and legal persons with a sufficient connection with the state have suffered injury or loss by the acts of another state. In the cases Nottebohm 54 , Bracelona Traction 55 and more recently in Elettronica Sicula56 the International Court of Justice has analysed the content and the requirements of diplomatic protection. Diplomatic protection is not directly connected to human rights and human dignity, even though within cases of economic injuries there might be aspects of human rights, especially regarding the right to property. The purpose of diplomatic protection is primarily to secure the legal interest of a state whose nationals (and legal persons) receive injury or loss at the hands of another state. Therefore, the International Court of Justice has developed the requirement of effective nationality link. Diplomatic protection is the right of the state and not a claim by individuals or legal persons to have any rights protected. However, in the Barcelona Traction Case the International Court of Justice spoke of the erga 52· UN Doc. NCONF. 157/23, section I (Declaration), para. 19 and section II (Programme

of Action), paras. 25-26. 53 · On diplomatic protection in relation to the question of nationality of claims see I. Brownlie, Principles of Public International Law, 1990, pp. 399-403 and 480-508; S. R. Jennings and S. A. Watts, Oppenheim's International Law, 1992, pp. 511-522. 54 · Nottebohm Case (second phase), ICJ Reports (1955), p. 4. 55 · Barcelona Traction Case (second phase), ICJ Reports ( 1970), p. 4. 56 · Elettronica Sicula, ICJ Reports (1989), p. 15.

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omnes obligations of states towards the international community as a whole deriving from, among other sources, the rules concerning the basic rights of the individual such as the prohibition of slavery and discrimination. The Court concluded that some of the "corresponding rights of protection" have entered into the body of general international law. 57 The International Court of Justice did not clarify whether by "corresponding rights of protection" it meant solely diplomatic protection or if it included also other forms of protection.

Closely connected to the concept of diplomatic protection is the concept of the protection of persons who fear persecution and, for that reason, have broken the ties with their home state and therefore qualify for refugee status and protection according to the 1951 Geneva Convention on the Status of Refugees.58 Several other fields of international law make use of the term "protection". In the sixteenth to nineteenth centuries the concept of protection was connected to the institutions of protectorates and mandate territories. During this period protection meant more or less annexation and reflected the patronising view of the European states vis a vis the African continent. 59 In the sixteenth century the European powers developed the concept of protecting powers in order to exercise extra-territorial jurisdiction over their nationals in the Ottoman Empire and later on in countries of the Far East. Nowdays the concept of "protecting powers" has a different meaning after its incorporation together with the concept of protected persons in humanitarian law and the Geneva Conventions of 1949. 60 The notion of protection is found already in the title of the Fourth Geneva Convention (1949) and the Additional Protocols (1977) which relate to the "protection of civilian persons in time of war" and the "protection of victims" of international or noninternational armed conflicts. 61 However, the concept of protection can also be found in fields of public international law not directly affecting the position and situation of individuTraction, loc. cit., at p. 32. 58 · 189 UNTS 137. Concerning "lack of protection" and Article I of the Convention, see G. Stenberg, Non-Expulsion and Non-Refoulement, 1989. 59· T. Baty, Protectorates and Mandates, in British Year Book of International Law, 192122, pp. 109-121. 60 · The definition of "protecting power" is found in common Article 8 of the First-Third Geneva Conventions and in Article 9 of the Fourth Convention. The definition of the term "protected person" is given in Article 4 of the Fourth Geneva Convention. 6 1. G. Abi-Saab, The Implementation of Humanitarian Law, in A. Cassese (ed.), The New Humanitarian Law ofArmed Conflict, 1979, pp. 310-346, at pp. 311-318. 57 · Barcelona

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als. Thus, Article 21 of the Convention of the Law of the Sea (1982) gives to the coastal state the right to adopt laws in respect of i.a. the protection of navigational aids and facilities and the protection of cables and pipelines. "Protection" is also frequent within environmental law where "environmental protection" and "protection of the environment" are indeed very common terminology. 62 Equally often we find the term "protection" in relation to culture. Numerous treaties "protect" cultural property, archeological heritage, monuments, world heritage etc. 63 In these last mentioned examples individuals or groups are not the direct beneficiaries of the international rules, even though, these rules will indirectly certainly affect the lives of individuals. This is also evident in the European Charter for Regional or Minority Languages whose purpose is to "protect and promote regional or minority languages as a threatened aspect of Europe's cultural heritage", and not to protect and promote linguistic minorities as such. 64 The question remains: what is the interest protected and whose interest is it? State parties to treaties on environment or culture wish to protect their territory, and their culture, but the measures taken benefit in some cases also individuals or groups of individuals even when one may not discern any direct individual or collective rights. In everyday language to "protect" means to shield from danger, to defend and to strengthen. 65 In this sense protection has a preventive rather than a corrective character. In present international law "protection" is primarily connected to human rights. But within human rights law "protection" is often opposed and seen as complementary to "promotion" in which case the above-mentioned everyday use of the term has lost its original meaning. According to such a distinction, "promotion" is perceived as a preventive measure and "protection" as a corrective measure, with protection relying heavily on sanction and court process. I use the term "protection" in its broad sense covering both preventive as well as corrective measures. 62 · Ebbesson argues, however, that a method for examining the compatibility of national rules with international documents concerning environmental protection is precisely by examining their effects on individuals. J. Ebbesson, Compatibility of International and National Environmental Law, 1995, pp. 31- 43. 63 · See for instance the following documents: Convention for the Protection of Cultural Property in the Event of Armed Conflict, 249 UNTS 215 (14 May 1954); European Convention on the Protection of the Archeological Heritage, ETS 66 and 788 UNTS 227, revision ETS 143 (6 May 1969, revised 16 January 1992); Convention for the Protection of the World Cultural and Natural Heritage, (16 November 1972), 11 ILM 1358. 64 · See below chapter 8.5. 65 · See Chambers 20th Century Dictionary, 1983.

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Not much has been written on the content of the term "protection", nor on the possible systematisations of its various forms, but one of the most valuable contributions in the field of human rights law has been made by Ramcharan. 66 He distinguishes between "international protection in a broad sense" (indirect protection) and "international protection in a specialised sense" (direct protection). By indirect protection are meant all activities at the international level to advance the realisation of human rights, such as standardsetting, research, studies, educational activities, dissemination of information, advisory services as well as activities to deal with complaints of violations of human rights or with cases or situations of violations. 67 Mechanisms for dealing with complaints are, according to Ramcharan, the essential element of direct protection (petitions, complaints, judicial and quasi-judicial protection). 68 Other forms of direct protection are urgent action (telegrams, appeals), material assistance, fact-finding, conciliation, good offices, public statements and compensation. Ramcharan sees prevention as a part of protection. 69 Ramcharan' s analysis of the concept of protection is helpful in promoting better understanding of several intricate aspects of the issues at stake. An underlying assumption in his analysis is that the basis for any action by the international community (or, sometimes, by individual states) is a legally recognised human right. If the European Commission and Court of Human Rights, the Inter-American Commission and Court of Human Rights, the African Commission on Human and Peoples' Rights and the Human Rights Committee are to have jurisdiction on a case, the first preliminary requirement is that there is an alleged violation of a right included in the documents that these organs supervise. 70 However, as regards other methods of direct protection such as consideration under Resolutions 1235 (XLII) and 1503 (XL VIII) of the Economic and Social Council, fact-finding missions and the good offices of the Secretary-General of the United Nations, there is no requirement of Ramcharan, The Concept of Protection in the International Law of Human Rights, in Y. Dinstein and M. Tabory (eds.), International Law at a Time of Perplexity, 1989, pp.

66 · B.G.

593-621.

Id., at p. 605. 68 · Id., see chart at p. 604. 69 · Ramcharan does not however give any definitions of the terms petitions, complaints and judicial or quasi-judicial protection. 70 · See Articles 24 and 25 in the European Convention; Articles 44, 45 and 62 of the American Convention (note, however, that the Inter-American Court may give advisory opinions regarding any human rights treaty relevant in American states); Articles 47 and 55-58 of the African Charter (the African Charter does not refer to "violations of this Charter" but to "communications other than those of State parties" and to "serious or massive violations of human and peoples' rights"); Article 41 of the International Covenant on Civil and Political Rights and Article 1 of the First Optional Protocol. 67 ·

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a violation of a specific rule of international human rights law, in spite of the fact that documents use the term "violations of human rights". 71 So far it has been argued that "protection" is a term widely used in international law and that it covers a wide spectrum of methods for the guarantee and enhancement of various interests of international society. In what follows I will try to link this term to the issue of minorities.

2.4. Minority Protection In this thesis I use the term "protection" rather than "rights" since they are two separate concepts. It is in fact possible to think of interests which are not legally protected as well as protection which is not based on rights. 72 In the previous chapter we saw that legal rights are the interests or goods which are recognised by law. 73 Recognition of rights by the law may be seen as the first step, or, one step, towards their protection. Returning to the issue of minorities we find that during the League of Nations era the term used most often was "protection of minorities" and not "rights of minorities". 74 One reason for this was undoubtedly that the human rights argument and vocabulary had not been developed at the time. In the German-Polish Convention relating to Upper Silesia (1922), part three of the Convention is entitled "Protection of minorities" and covers not only provisions on the right to equality, non-discrimination, religion, language and education, i.e. directly recognised rights, but also provisions regarding the responsibility of local Jewish Educational Committees for the distribution of public funds (Article 70), school committees for the administration of minority schools (Articles 111-112) etc. In other words these were provisions on rather technical issues, albeit important, giving guidelines related to the methods and tools for the realisation of the protected rights. 75 The Convention includes, in addition, detailed provisions on the rights of petition and appeal. Also the doctrine of that period preferred the term "protection of minorities" ("la protection des minorites" or "Minderheitenschutz") rather than "rights of minorities". 76 Ramcharan, Joe. cit., pp. 608-614. It should be noted that the use of the word "right" as such is not necessary for the recognition of rights by the law. Raz maintains that rights can be created either by the explicit use of the term "rights" or by imposing duties or, finally, by the use of specific technical terms. See Raz, Legal Rights, Joe. cit., at p. 14. · 73 · See above chapters 2.1.-2.2. 74 · On the League of Nations see below chapter 6. 75 · See below chapter 6 in notes. 76 · See literature references in chapter 6. 7 1.

72 ·

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The advantage of this approach during the League period is obvious; the minorities treaties, both bilateral and multilateral, could transform practical aspects of the realisation of basic minority rights into legally binding international documents and create mechanisms of control covering the whole scope of provisions, not only those concerning uncontestable "rights". Today, as minority protection is generally thought to be identical with human rights it is often assumed that the methods and tools of human rights law are always sufficient, and that they are the only suitable means for minority protection. Most documents of the United Nations guarantee "the rights of persons belonging to ... minorities". 77 In this way, the underlying justification of human dignity is clearly given priority. 78 Even in the Copenhagen Document of the Organisation for Security and Cooperation in Europe (1990) the emphasis is placed on recognition of rights of persons belonging to minorities. 79 More recently - and obviously marked by the situation in the former Yugoslavia - the study conducted by Eide (1989-1993) is concerned with "Possible ways and means of facilitating the peaceful and constructive solution of problems involving minorities". The introduction (paragraph 1) starts with the sentence: This study on peaceful and constructive solutions to minority situations is based on principles contained in universal human rights law, concerned above all with the equality and dignity of every human being. BO

We now realise that behind these varying uses of the term "protection" as "protection of rights of persons ... ", "protection of rights of minorities", "protection of... minorities", or "protection of minority languages" lie, not only a fear of and resistance against recognising certain legal rights, but also the diverse possible methods of securing various interests, be they human dignity, peace or culture. To sum up, it is possible to say that "minority rights" are the legally recognised interests of minorities (or of their members) while "minority protection" is the whole network of (legal) methods and mechanisms supporting minor77. See Article 27 of the ICCPR; on the UN Declaration on the Rights of Persons Belonging to ... Minorities (1992) see below chapter 7.7. However, the Sub-Commission on Prevention of Discrimination and Protection of Minorities uses the old formula, in its own name. 78 · On the underlying justifications see chapters 3 and 4. 79 · For comments on the OSCE work on minorities and the discussion on the legal status of documents see below chapter 9. 80· A. Eide, Possible ways and means offacilitating the peaceful and constructive solution of problems involving minorities, UN Doc. E/CN.4/Sub.2/1993/34.

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ity cultures. The distinction between minority rights and minority protection permits us also to accept as part of international law measures taken for the protection of minorities in international instruments which are not legally binding, such as the agreements of the Organisation for Security and Cooperation in Europe (OCSE). Such agreements may not create legal rights but they do add important new elements in the international network of provisions affecting minority protection. This distinction reflects what has been called "the emancipation" of the minority issue from human rights. 81

SI. D. Christopoulos, Minority Protection: Towards a New European Approach, in Balkan Forum, 1994, Vol. 2, No. 1, pp. 155-174, at p. 172.

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CHAPTER3 JUSTIFICATION IN INTERNATIONAL LAW One of the main aims of this thesis is to examine international law provisions regarding minorities in the light of the justifications given for these provisions. It is believed that such an examination is necessary both for the future complementation of existing standards through the adoption of new instruments, as well as for the application of those standards by judicial organs and international and national decision makers. For most international lawyers the relevant question seems to be more limited: are there any material rules in international law regarding the protection of minorities? And if so what are those rules? If states have adopted treaties, resolutions, declarations, or if they have developed a customary law, then, according to this way of thinking, the international lawyer has what is needed. The starting point in this thesis is different: why do states and international organisations adopt rules for the protection of minorities? How do they justify the adoption of these instruments? How do those rules fit into the legal system of each organisation? In order to approach those questions, I will first examine the concept of "justification" in legal theory and in international law, and then attempt to show how it is relevant in relation to minority protection. One of the legal theorists who has shown great interest in justification issues is Raz. According to Raz, "lawyers commonly conceive of the law as made of sets of nested rules linked by justificatory chains" . 1 International law being, like all law, a structure of authority, forms a justificatory hierarchy. New rules are developed through old rules existing in treaties, custom, general principles etc. This is not only a question of a hierarchy of rules and formal legislative procedures, but also of the goals aspired to by the adoption of the rules. The existence of a justificatory hierarchy strengthens the legitimacy and compliance power of rules. 2 An important aspect is that the tracing of the justifications placed at a high level in the justificatory hierarchy does not entail chasing moral evaluations regarding the law. This would not be possible in international law, where the main agents are states and it would not be possible to discover the "personal beliefs" of states. Raz puts it in the folJ. Raz, Legal Rights, loc. cit., at p. 4. On the issue of legitimacy in international law see T. Franck, The Power of Legitimacy Among Nations, 1990. I.

2·

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lowing way: To say of the law that it is a system of practical reasoning is then to claim that it consists of rules some of which justify some of the others. It is a statement of the logical properties of the law. It is not a psychological or sociological statement about people's beliefs about the law or their attitude to it. Nor is it a moral or other value judgment about the value or merit of the law. 3

Raz thus gives a narrow definition of "justification" as the property of consistency and logical construction which permits the building of a hierarchy of rules. Questions of justification have not been developed in international law doctrine. However, in his Law of Nations, Vattel approaches this problem, though from a different angle than Raz: The motive of the law, or of the treaty, that is to say the purpose which the parties had in mind, is one of the surest means offixing its true sense, and careful attention should be paid to it whenever there is question either of explaining an obscure, equivocal, or undetermined passage in a law or a treaty, or of applying it to a particular case. 4

Vattel emphasises the "will of the parties" as "the motive of the law". This differs from the understanding of justification given by Raz. Nowadays the "will of the parties" is given a central position in the interpretation of treaties according to Articles 31-32 in the Vienna Convention on the Law of Treaties (1969). 5 In the present thesis justification is understood as a rational construction,

made out of a combination and weighing of various data, including the will of the parties, the historical context, the needs in international society which the examined rule (or principle) tries to cover, the logical construction of the hierarchy of the rules, and the practice of organs responsible for monitoring the rules. 6 The concept of "justification" is, according to this way of thinking, not a purely subjective concept, which is why I prefer this term to "the object and purpose" of the law, which rather denotes the (subjective) will of the legislator (or, of the parties). "Justification" is at the heart of the (objective) teleological method of inter-

3 · J. Raz, Joe. cit., p. 6.

E. de Vattel, The Law of Nations, Classics of International Law, Vol. III, (Translation of text of 1758), 1916, p. 207. 5 · 1155 UNTS 331. 6 · On the so-called objective teleological method of interpretation, see A. Peczenik, Vad iir riitt?, 1995, pp. 362-377. 4·

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pretation. 7 Justification is different from the "telos" in that justification requires a logical, coherent basis which is not at all required for the "telos", which is often equated with the (political) will of the legislator or the parties. 8 It has already been implied above that the issue of justification is essential in international law mainly for two reasons. Apart from often being necessary in the interpretation of obscure international rules and principles, it is central in the effort to strengthen the legitimacy of international standards and to achieve better compliance with international law. The issue of legitimacy has become all the more important today, since the world is no longer divided into spheres of power of a few states. This means that decisions of international organs have to find support among a great number of states with different political, legal, and cultural traditions. Consequently, issues of coherence, validation and determinacy of international decisions and rules have become crucial. 9

Before discussing the issue of justifications of minority protection, I will examine some teleological efforts in the practice and theory of international law. It is maintained that it is not correct to speak in international law simply of a single teleological method of interpretation.

3.1. Teleological Interpretation in International law As noted above public international law today recognises the importance of justification in the provisions regarding the interpretation of treaties in the Vienna Convention on the Law of Treaties (1969) and especially Article 31. According to Article 31(1) a treaty shall be interpreted in good faith in accordance with the ordinary meaning of the terms used in their context and in the light of its object and purpose. The wording of Article 31 indicates that the object and purpose is something different from the "context" in which the treaty terms are used. Article 31(2) gives guidance on what is meant by "context", but nothing in this provision (nor in Article 32) clarifies what is meant by the words "object and purpose" . 10 The Vienna Convention 7 · Since justification here is understood as a rational construction, it is not necessary to develop the importance of who justifies and for what reason. 8· The ancient Greek word "telos", from which the word "teleology" derives, means purpose, aim. 9 · On the concepts of coherence, validation and determinacy as elements of legitimacy see T. Franck, The Power of Legitimacy, 1990. lO. The issue of the "object and purpose" is also relevant when deciding the compatibility of reservations according to Article 19 of the Vienna Convention. See article by the present author and 0. Marsater, Otillatna reservationer - Maldive mas reservation mot kvinnodiskrimineringskonventionen, in Mennesker og rettigheter, 1995, No. 4, pp. 382-399.

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uses the terms "object and purpose" but also other terms have been used. 11 I will here use the term teleological interpretation. 12

3.2. Views of Jurists

Some international law writers are still sceptical vis a vis the use of a teleological method of interpretation. The teleological interpretation is contested mainly because it is considered to lead to a departure from the text of the law and to the granting of excessive power to the interpreter. 13 Both the Vienna Convention on the Law Treaties and doctrine give the textual approach a prominent position. Brownlie makes clear that the teleological approach has many pitfalls, even though he admits that the teleological approach, with its aspect of judicial legislation, may be suitable in a small specialised organisation which has supranational elements and efficient procedures for amendment of constituent treaties and rules. Such is the case for the Court of Justice of the European Communities. 14 The European Court of Justice indeed favours the teleological method, in particular in relation to the Community Treaties. 15 The sceptics claim that the teleological method is not appropriate, for instance, for a universal court such as the International Court of Justice. However, Fitzmaurice writing in 1951 on treaty interpretation by the International Court of Justice recognised that the teleological approach has its sphere of operation in the field of "general multilateral conventions, particularly those of the social, humanitarian and law-making type" .16 The Human Rights Committee which is not a judicial, but a global, monitoring body has in fact often used teleological arguments. 17 Writing on the interpretation of the European Convention on Human Rights, Matscher cites several judgments of the European Court of Human Rights which follow an evolutive and dynamic method (such as the Tyrer and the Other such terms are "aims and objects" and "teleological interpretation". methods of interpretation in international law see S. Sur, L 'interpretation en droit international public, 1974. 13 · Id., p. 230. 14 · I. Brownlie, Principles of Public International Law, 1990, p. 632. 15 · T. Tridimas, The Court of Justice and Judicial Activism, in European Law Review, 1996, Vol. 21, pp. 199-210. 16 · G. Fitzmaurice, The law and procedure of the International Court of Justice: treaty interpretation and certain other treaty points, in British Year Book of International Law, Vol. 28, 1951, pp.1-28, at p. 2. See also D. J. Harris, Cases and Materials on International Law, 1991, p. 767. 17· On the work of the Human Rights Committee see below chapters 7.4.-7.6. ll.

12· Regarding

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Marckx cases 18 ) and asserts that the object and purpose of the European Convention are found in its Preamble and also in the Preamble to the Statute of the Council of Europe. In the end, however, he is sceptical as he concludes, more or less as an abstract warning, that the evolutive method of interpretation should be applied with "great care", since there is a great risk that the Convention organs will "reach the limits" of what can be regarded as treaty interpretation and instead engage in "legal policy-making". And this is, says Matscher, "not for a court to do". 19

Matscher may serve as an example of the view often held that the role of a court is restricted in applying "the letter" of the law, a letter which is presupposed to be clear and coherent. Such a view cannot be accepted today when it has become obvious that the law is not able to match the speed with which factual circumstances are changing. Matscher's terminology also leaves some doubt as to whether he believes "teleological" interpretation to be identical to "evolutive" interpretation. A teleological interpretation is, in my view, not necessarily evolutive. The "telos" may be that of the time of the adoption of a treaty, in which case the intentions of the parties and the context at that moment are of relevance; or, it may be truly evolutive in that it is understood in the context and needs of today, in which case it is policyoriented. A different view is represented by Clapham who discusses the "Drittwirkung" of the European Convention for Human Rights in a way that goes right to the heart of the issues of minority protection. Clapham asserts that "the simple granting of rights to everyone has been shown to do little for marginalized and powerless groups" and finds that, in order to confront the burning current European issues, such as environmental policy, child care and discrimination, the limited number of rights have to be applied in the light of the aims protected by the Convention, namely dignity and democracy. 20 Clapham advocates a "coherent approach to how these rights apply" and proposes that the two aims, i.e. dignity and democracy, can be used to analyse the rights contained in the Convention so as to escape "the intractable riddle of conflicting human rights" and "endless 'balancing and weighing' exercises". 21 Even though his point of departure and assumptions seem correct, Clapham fails in the end to make concrete suggestions on what the implicaTyrer case, ECHR, Series A, No. 26, 1978; Marckx case, ECHR, Series A, No. 31, 1979. 19 · F. Matscher, Methods of Interpretation of the Convention, in R. St. J. Macdonald et al. (eds.), The European System for the Protection of Human Rights, 1993, pp. 63-81, at pp. 69-70. 20 · A. Clapham, The 'Drittwirkung' of the Convention, in R. St. J. Macdonald et al., loc. cit., pp. 163-206, at pp. 200-203. 2 L Id., at p. 204. 18 ·

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tions of his thesis would be in practice. The present author maintains that it is not possible to escape the "balancing and weighing exercise", but awareness of justification issues will give some guidance in this balancing process.

3.3. Judicial Application The teleological method of interpretation is often applied in combination with the principle of effective interpretation and often in search of the intention of the parties. The Permanent Court of International Justice (PCIJ) has referred to the aim, object, purpose of treaties in several of its advisory opinions. It is of importance for the argument in this thesis that the PCIJ used the teleological method in many of the cases concerning minority disputes. 22 In the dispute concerning the Acquisition of Polish Nationality the Court

argued that the refusal of Poland to grant nationality to members of minorities resident in the country was a violation of the prohibition of discrimination as incorporated in the Minorities Treaty with Poland. Otherwise, the Court held, "the value and sphere of application of the Treaty" would be greatly diminished. 23 In the Greco-Bulgarian Communities case the PCIJ found it necessary to

recall the general purpose of the Greco-Bulgarian Convention in order to be

able to define the term "community". The Court argued that:

The aim and object of the Convention, its connection with the measures relating to minorities, the desire of the signatory Powers, to which the whole Convention bears witness, that the individuals forming the communities should respectively make their homes permanently among their own race, the very mentality of the population concerned - everything leads to the conclusion that the Convention regards the conception of a "community" from the point of view of the exclusively minority character which it has had for centuries past. 24

The Court in its jurisprudence was eager to emphasise that the major purpose of these conventions was the protection of the concerned individuals, thus putting human dignity before the Allied and Associated Powers' desire for peace in a continent tormented by war. The International Court of Justice has also used a teleological method. One may distinguish two principal versions of it. First, the ICJ follows the principle of "institutional effectiveness" in cases concerning the powers of interna22. The minority protection system of the League of Nations is dealt with in more detail in chapter 6. 23 · PCIJ, Ser. B, No. 7, (1923), p. 16. 24 · PCIJ, Ser. B, No. 17 (1930), pp. 19-22.

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tional organisations. 25 In order to assess the effectiveness of the institutions of the United Nations the ICJ measured them against the aims of the organisation. In the Reparation case the Court argued: In the opinion of the Court, the Organisation was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. It is at present the supreme type of international organisation, and it could not carry out the intentions of its founders if it was devoid of international personality. It must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged. 26

The Court used words such "the Organisation was intended to", "can only be explained on the basis of', "the intentions of its founders" and concluded that the United Nations must be properly equipped in order to live up to its aims, even if this is not explicitly stipulated in the Charter. The ICJ has used the principle of effectiveness on the basis of a teleological reasoning also in the Ambatielos Case as well as in the Corfu Channel Case. 27 In these cases the Court did not accept an interpretation of provisions in a manner which would make them devoid of purport or effect. Jn its much debated advisory opinion concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide the Court used a teleological method of interpretation, emphasising the humanitarian and universal character of the Genocide Convention and introduced a new principle according to which it was not necessary for all states parties to accept a reservation in order for the reserving state to become a party of the convention. 28 Of special interest, because of its relevance to the discourse on equality and non-discrimination in relation to South Africa's policy of apartheid in Namibia, is also the advisory opinion of the ICJ on Namibia. 29 The Court was Reparation for injuries suffered in the service of the United Nations, advisory opinion, ICJ Reports 1949, p.174 and Certain expenses of the United Nations, ICJ Reports 1962, p. 151. 26 · Loe. cit. 27 · Ambatielos Case, Greece v. United Kingdom (preliminary objection), ICJ Reports, 1952, p. 28 and Corfu Channel Case, ICJ Reports, 1949, p. 4. 28 - ICJ Reports, 1951, p. 15. 29 · Legal consequences for States of the continued presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 ( 1970), ICJ Reports 1971, p. 16.

25 ·

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asked to give its opinion in view of the continued presence of South Africa in Namibia despite UN General Assembly resolutions which had terminated South Africa's mandate in Namibia and condemned the apartheid policy. 30 The ICJ argued from a teleological point of departure that: To establish [... ], and to enforce, distinctions, exclusions, restrictions and limitation exclusively based on the ground of race, colour, descent or national or ethnic origin which constitute a denial offundamental human rights is a flagrant violation of the Purposes and Principles of the Charter. 31

It should be observed that the ICJ refused to use the teleological method and

to make reference to the principle of effectiveness in its advisory opinion in the case concerning Interpretation of Peace Treaties (second phase). 32 In this case the Court found that using this method would be contrary to the clear meaning of the text (the letter and spirit of the Peace Treaties). 33

The PCIJ and the ICJ have thus repeatedly relied on teleological arguments based, however, on justifications (including aims, objects, purposes) as they are reflected, explicitly or implicitly in various acts, international instruments and their travaux preparatoires. There is still another form of teleology, or, as it is often called, "policyoriented approach" to international law. The New Haven School developed its view on a World Public Order already in the 1950s and 1960s, and more recently Franck has argued similarly about the legitimacy and fairness of international law.

3.4. Teleological Theories: Some Efforts of Jurists It is perhaps difficult to appreciate correctly the impact of the New Haven

School in international law theory after only a few decades of its existence. 34 Apart from "New Haven School" and "policy oriented approach" it has also

30 · For an analysis of the advisory opinion as a ruling on discrimination see P. Thornberry, International Law and the Rights of Minorities, 1991, pp. 319-328. 3 1. Paras. 128-132. The judgment may be seen as a confirmation of Fitzmaurice's abovementioned assertion that the teleological approach seems to be particular appropriate in relation to "humanitarian" conventions. 32 · Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, ICJ Reports, 1950, p. 221. 33 · See also D. J. Harris, Cases and Materials on International Law, 1991, p. 769. 34 · R. Falk in his Revitalizing International Law, 1989, comments the importance of the New Haven School in the following way: "Because we are in the historical mainstream, it is as yet unclear whether to regard McDougal and collaborators as the immediate precursors of a new world-order system, in the way that we view Grotius today, or whether their role is a more antecedent one, comparable to that of Vitoria and Suarez", at p. 37.

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _C_h_a~p__te_r_3_-_Justification in International Law

been called "Law, Science and Policy" and "configurative jurisprudence". 35 McDougal and his associates see international law as a variable of the World Public Order and they define this world public order as "the features of the world social process, including both goal values and implementing institutions, which are protected by law". 36 The first important aspect is their understanding of international law as part of a process. This thesis has obviously influenced later thinking about the subjects and "actors" of international law. 37 The other central principle in this theory is the importance attached to "goal values". Through the interest for "goal values", the New Haven School is very close to the above described concept of justificatory chains and has indeed shown great interest in the contextual interpretation of agreements. 38 However, McDougal and his associates define these "goal values" a priori and on the basis of abstract societal common interests. Therefore, their work includes many programmatic announcements on the importance and merits of these values, even though it is occasionally claimed that these values are "basic value processes protected by law". 39 These base values are: security, wealth, respect (for human dignity), enlightenment, well-being, rectitude and affection. 40 I believe it is of importance that the New Haven approach to human dignity was developed in parallel with the preparation and discussion of some of the first documents on human rights. The New Haven School put human dignity as the first among all values which are relevant in the world social process. However, human dignity is defined by McDougal and Lasswell very broadly as "a social process in which values are widely and not narrowly shared, and in which private choice, rather then coercion, is emphasised as the predominant modality ofpower". 41 In their voluminous work on "Human Rights and World Public Order" McDougal, Lasswell and Chen put emphasis on issues of discrimination, and in particular discrimination based on race, sex, political affiliation, religion, language, nationality and even age. 42 They make 35 · See introduction to the reissue of the collection Studies in World Public Order, by M. McDougal et al., 1987. 36· Id. p. x. 37 · See for instance, R. Higgins, Conceptual Thinking ... , 1978, loc. cit. 38 · M. McDougal, H. Lasswell and J. Miller, The Interpretation of Agreements and World Public Order, 1967. 39 · M. McDougal and H. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, inAJIL, 1959, Vol. 53 pp. 1-29 and reproduced in M. McDougal and associates, Studies in World Public Order, 1987, pp. 3-41. 4 o. Ibid. 4 1. McDougal and Lasswell, The Identification ... , loc. cit. 42 · M. McDougal, H. Lasswell and L. Chen, Human Rights and World Public Order - The Basic Policies of an International Law of Human Dignity, 1980. See especially on discrimination, pp. 561-796.

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extensive reference to the protection of minorities by the League of Nations and even announce their intention to make a future study on the question of minority protection. 43 According to the founders of the New Haven School any legal problem has to be solved through a five-step intellectual process: clarification of goal, description of trend, analysis of conditioning factors, projection of future developments and, finally, invention and consideration of policy altematives.44 I will here only comment upon issues about the "goals", "goal values" and their clarification. I will not elaborate on the other possible tasks, especially on whether the solution of legal problems demands "the invention and consideration of policy alternatives" by lawyers themselves. It has already been noted above that the goals as understood by McDougal are extralegally and a priori given and law has to find effective techniques for their realisation. According to the New Haven-thinkers the clarification of the goal can proceed in two directions: 1) justification of the commitment, or 2) detailed specification of "what is meant in terms of social and power processes and legal and public order systems". 45 It is, however, not explained how the justification of the commitment is to be understood. Falk comes with the following pertinent criticism of McDougal' s "values": McDougal's values are not currently specified in relation to any of the outstanding problems of mankind such as poverty, population pressure, violence, and ecological decay. As a result elitist perspectives can employ his tenninology to disguise their indifference to a public order of human dignity. The values informing a new paradigm for international legal studies will have to be placed in direct relation to the agenda of concrete problems facing the human community. 46

Falk accepts the process- and value-oriented approach of the New Haven School but modifies it through reference to (and justification by) the acute global problems of today (and what he accepts to be "populist claims"). He presents his own understanding of "goal values": peace, economic equity, social and political dignity, and ecological balance. 47 These may be better argued for by Falk with the help of statistics and accounts of actual claims made by various actors (state and non-state) around the world but they are 43 · Id. p. 582 and note 70. To the best of my knowledge such a study has not been produced. 44 · M. McDougal and H. Lasswell, The Identification ... , loc. cit., p. 17. 45 · M. McDougal and H. Lasswell, The Identification ... , loc.cit. 46 · R. Falk, Revitalizing ... , p. 39. 47 · Id., p. 43. These goals are a recurrent theme in the works of Falk and can be found in most of his publications.

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essentially not very different from the New Haven list of goals. Before proceeding to the understanding and importance of justification with regard specially to minority protection, I will examine briefly another recent theoretical effort with elements comparable to the teleology and the policy-oriented approaches. In his recent general course on international law at the Hague Academy Franck based his presentation on the concept of fairness. 48 Franck argues that international law has entered its "post-ontological era" in which the main question is whether international law is "fair". 49 He amends his earlier views on the issue of legitimacy which he now includes as one of the elements in the concept of fairness. 5 Franck admits that there is an essential difference between statist or aggregate fairness and human or disaggregate fairness. 51 For Franck distributive fairness is the most urgent aspect of fairness in a world of moderate scarcity. In order to define fairness he searches for agreement on "a few basic values that take the form of shared perceptions as to what is unconditionally unfair ". He chooses to use Rawl' s theory on equal liberty which accepts inequalities insofar as they contribute to the long-term expectations of the least fortunate group in society. This understanding of equality is named (originally by Rawls) "the maximin principle".52

°

Franck seems to me to be correct in his remarks on the difference of statist and human fairness as well as about the moderate scarcity in a world of finite resources. 53 Both these issues are of relevance in the discussion of minority problems. Franck approaches these issues from the aspect of the right to democratic governance and self-determination without elaborating extensively on the special situation of minorities. His main conclusions as regards minorities are: 1) in the postmodern tribal-secessionist crisis international lawyers have to rethink some of the most fundamental norms of international law, namely those pertaining to title to territory and in relation to human personality and group identity, 54 and 48 · T.

III.

Franck, Fairness in the International Legal and Institutional System. RdC, 1993, vol.

49 · Id.,

p. 26. Franck, The Power of Legitimacy Among Nations, 1990. 5 1. T. Franck, Fairness ... , RdC, 1993, vol. III, p.30. 52· Id., p. 36. 53 · I will not discuss here the issue of distributive justice, an issue which dates back to Aristotle's Nicomachian Ethics, see Book V, on "justice" ("dikaiosine") and specially section 1131 on distribution ("dianome"). Aristotelous, Ethika Nikomacheia, original text, with translation and comments in modem Greek by A. Dalezios, 1975. 54· T. Franck, Fairness ... , RdC, 1993, vol. III, p. 126. 50· T.

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2) that international law even through a redefinition of self-determination, does not recognise a right of minorities to secession but well to "cultural autonomy and democracy". 55 We see that through his theoretical model Franck comes to very concrete consequences regarding international law and minorities. I will not make any assessments on whether Franck's conclusions are correct or not. The point at this moment is to show that through a specific definition of the goals of international rules (in this case "fairness" as understood by Franck) one comes to practical results. It is important, however, to note that also Franck, as previously Falk and the

New Haven School, finds the "telos" of international law outside the law itself. This is admitted by Franck in a straightforward manner: For the purposes of these lectures, I propose to adopt, as a working hypothesis, the "maximin" principle of fairness: in part because it comes closest to coinciding with my personal moral sense, but also because I believe that this principle already commands the allegiance - consciously or reflexively - of most members of at least that part of the community of States and persons which is likely to be willing to embark on the enterprise offairness-discourse. 56

3.5. Justification of Minority Protection as Understood in this Thesis We have seen that there are several different possible approaches to a teleological method in international law. The PCIJ and the ICJ have occasionally used the teleological method of interpretation but in these cases they have tried to find the "telos" in the international law instruments, while the New Haven School, Falk and recently Franck represent more radical theories which seek the goals of international legal rules in the social context or in philosophical assessments about the meaning of fairness. In the present thesis I argue that international law has dealt with the minority issue in different contexts. 57 Part II in the present thesis examines existing standards concerning minorities, arguing that they have developed mainly within three contexts. The past and present international legal instruments 55 · Id., p. 149 56· Id., p. 40. 57 · This approach of different contexts of minority protection is not new as such. Sohn writes that international attention to minorities has had a double aspect: a) the fear of states for secessionist movements and external interference, and b) the international concern for human rights. See L. Sohn, The Rights of Minorities, in L. Henkin (ed), The International Bill of Rights. The Covenant on Civil and Political Rights, 1981, pp. 270-289.

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about minorities reflect at least three principles of international law which are as such and independently recognised by international law. It will be shown that these three principles are: peace, human dignity and culture. In the following chapter I will examine briefly the position of these principles as recognised by international law and then discuss how a different justification of minority protection may result in different consequences in minority problems. I will not however proceed to an in-depth justificatory effort regarding the justifications themselves (peace, human dignity and culture).

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CHAPTER4 THE THREE JUSTIFICATIONS OF MINORITY PROTECTION It has already been maintained that, within the framework of international

law, minority protection is created for and justified by three concepts which function as aims of and justificatory grounds for this protection: peace, human dignity, and culture. This list of justifications does not follow a hierarchical order and may not be exclusive, but one of the arguments in this thesis is precisely that conflicts between these justifications may well occur and that the solution to these conflicts poses the hardest of questions to international and national decision-makers. It is possible to envisage other justifications, elements of which have just started to appear in international law. One may here note the link between traditional ways of life and protection of environment. 1 Several recent international documents refer to this link. 2

These three main justifications are not mutually exclusive and are not, as such, automatically contradictory. As already noted, it is possible to envisage conflict situations between these justifications. One such conflict is reflected in the question of tolerating intolerant or oppressive cultures, a question that has attracted the interest of legal philosophers rather than that of international lawyers. 3 In this case accommodating cultural diversity and, or, peace may lead to different results than respect for human dignity. In this chapter these three notions will be briefly presented in their capacity as conI. See F. Yamin and D. Posey, Indigenous Peoples, Biotechnology and Intellectual Property, in Review of European Community and International Environmental Law, 1993,Vol. 2, No. 2, pp. 141-148. 2 · One may mention:l) The Rio Declaration on Environment and Development, UN Doc. A/Conf.151 /5/Rev. l, from 1992, includes Principle 22: Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development. The action plan of the Rio Declaration, Agenda 21, includes a special chapter (No. 26) entitled "Recognising and strengthening the role of indigenous people and their communities". 2) The preamble of the Convention on Biological Diversity recognises the dependence of indigenous and local communities on biological resources and their contribution to the conservation of biological diversity, UNEP/Bio.Div/CONF/L.2, 22 May 1992. These documents were preceded by extensive activities by non-governmental organisations such as the adoption of a Charter of the Indigenous - Tribal Peoples of the Tropical Forests, at the NGO-meeting in February 1992 in Penang, Malaysia. The Charter includes chapters on forest policy, biodiversity and conservation. 3· See for instance J. Raz, Multiculturalism: A Liberal Perspective, in Ethics in the Public Domain, 1994, pp. 170-191.

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cepts of international law and in relation to minority protection.

4.1. Peace and Security The link between minority protection and "peace" and "security" is made obvious by taking into account the frequency of treaty stipulations regarding minorities in peace treaties over a very long period of time. The beginning of this practice may be found in Europe and in the effort to settle the disputes arising from the Reformation. The Treaty of Osnabriick (1648) at the close of the Thirty Year's War, and the Treaty of Peace between France and Great Britain (1713) 4 can be named as early examples of this practice. 5 They were followed by the Peace Treaties after the First World War many of which included extensive minority provisions. 6 Even after the Second World War, the treaty between Austria and Italy included minority provisions. 7 We see that since the 17th century minority provisions have often been an important element of peace treaties. Defending peace and regulating war has been, and still is, one of the main tasks and efforts of international law. 8 Article 1 of the UN Charter regarding the purposes of the United Nations provides that the foremost purpose of the organisation is the maintenance of "international peace and security". How are the concepts of "peace and security" defined in international law? The preamble of the Charter of the United Nations (UN) refers to the concept of peace in the following sentences: WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war. .. AND FOR THESE ENDS to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, ...

In the UN Charter "peace" is understood as the absence of war or armed conflict between states. The concept of "peace" is intimately related to the principles incorporated in Article 2 of the Charter, namely that of the peaceful settlement of disputes and the prohibition of the use of force (Article 2.3 and The Treaty of Osnabriick is the main treaty of the Westphalian peace arrangement. See F. L. Israel, Major Peace Treaties of Modern History 1648-1967, Vol. I, 1967. 5 · For a summary of the practice of minority protection through treaties, see P. Thornberry, International Law and the Rights of Minorities, 1991, pp. 25-37. 6 · See below chapter 6. 7 · See below chapter 7 .1. 8· One may note that Oppenheim's monumental work International Law is divided into two parts: Peace and War. See the recent (9th) edition by Sir R. Jennings and Sir A. Watts, Oppenheim 's International Law - Peace, 1992. 4·

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2.4). 9 Peace is, in the UN Charter, defined in a negative manner through prohibitions of the acts endangering it rather than through a positive specification of its constitutive elements. The principles of the peaceful settlement of disputes and the prohibition of the use of force have been reaffirmed in several other international law documents including the Friendly Relations Declaration (1970). 10 The Friendly Relations Declaration uses also the term "peace" in conjunction with "security" and goes even further than the Charter in requiring that international peace should be founded upon "freedom, equality, justice and respect for fundamental human rights". A few years after the Friendly Relations Declaration, the Helsinki Final Act expressed the commitment of the CSCE participating states to "peace, security and justice". 11 The first question of importance is whether the concept of "security" adds anything to the concept of "peace" .12 While the concept of "peace" has been a working tool of international law, the concept of "security" has been developed in the context of international relations and strategic studies. The concept of security has been analysed by Buzan, who notes that "security" is characterised by a symbolic ambiguity which is often useful both for policy reasons as well as a stimulus of theoretical discussion. He understands "security" as "the pursuit of freedom from threat", and this pursuit is affected by five major factors: military, political, economic, societal and environmental.13 National security may be threatened (or believed to be threatened) by military, political, economic, societal or environmental factors, or a combination of them. The factor which is directly relevant to the minority issue, is "societal security". Societal security, according to Buzan, concerns "the sustainability, within acceptable conditions for evolution, of traditional patterns of language, culture and religious and national identity and custom". 14 Buzan represents the trend of widening the scope of security, so that it covers more than only military and interstate aspects. The new concept of 9· On the prohibition of the use of force see B. Asrat, Prohibition of Force under the UN Charter, 1991. 10 · General Assembly Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Resolution 2625 (XXV). IL Final Act of Helsinki (1975), 14 ILM 1975, p.1272, at first preambular paragraph. On the OSCE see below chapter 9. 12 · It has been observed that the relation of the two terms depends very much on the definition one gives to "peace". If "peace" is narrowly defined as "negative peace", i.e. absence of war, then "security" is understood as "positive peace", i.e. activities for maintaining and promoting peace. B. Simma et al. (eds.), The Charter of the United Nations: A Commentary, 1994, pp. 50-52. 13 · B. Buzan, People, States and Fear, 1991, pp. 18-19. 14 · Id., p. 19.

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security, "the common security", covers both issues of human rights and minorities. 15 Vetschera analyses the concept of security as developed particularly within the CSCE/OSCE and asserts that in the OSCE, as in the case of the United Nations, security is understood to lead to peace and that "security" is defined in negative terms, namely as "the relative absence of threat". 16 Vetschera presents the links of the elements constituting "peace" as incorporated in the Helsinki Final Act. The main elements are "security" and "justice". "Security" is defined through a nexus of principles of prohibition of the use of force, inviolability of frontiers, territorial integrity, and non-intervention accompanied by the peaceful settlement of disputes and cooperation among states. 17 The additional concept here is that of "justice". "Justice" is viewed as "justice among states", for which the principles of sovereign equality and good faith are essential and "justice within states" the core element of which is "respect for human rights and fundamental freedoms". 18 To sum up, we have seen that the concept of "peace" is in all major documents accompanied by the concept of "security". The international community, through various means and in particular through international law, has a task to avoid and prevent not only inter-state, and internal, wars and armed conflicts but also threats to security. 19 The concepts "peace and security" entail not only the absence of war and conflict but also the absence of threat. The present UN engagement in the quest for peace and its direct link to minority protection is reflected in the UN Agenda for Peace (1992). The Agenda for Peace is the report prepared by the Secretary-General of the United Nations, Boutros Boutros-Ghali, pursuant to a Summit Meeting of the Security Council in January 1992. The Agenda was presented in June 1992 and discusses preventive diplomacy, peacemaking, peace-keeping and postconflict peace-building. The document was to cover the whole scope of 15 · The term "common security" was used already in 1982 in the report of the Independent Commission on Disarmament and Security Issues (the Palme Commission), Common Security: A programme for disarmament, 1982. A wide security concept is also proposed in the report of the Commission on Global Governance, Our Global Neighbourhood, 1995. The report adopts the term "global security". 16 · H. Vetschera, Effects of Basket /: Security and Confidence-Building, in H. Neuhold (ed.), CSCE: N+N Perspectives, 1987, pp. 101-125. On the concept of security, minorities and the OSCE see below chapter 9. 17 · At this point Vetchera seems to presuppose that the factors affecting security are essentially identical to the factors affecting peace. 18· H. Vetchera, Joe. cit., see chart at p. 103. 19 · Vetchera defines security as "subjective" and "objective" security. The former describes the perception of the absence of threat, the latter the absence of threat in reality. Loe. cit., p. 101.

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minority protection is an obligation not only of states applying for membership but also of states which are already members of the Council of Europe.

8.7. Concluding Remarks Ever since the Belgian Linguistic case, one may, in the petitions submitted to the Commission and in the writings of commentators, discern an effort to tackle minority protection in Europe by using the European Convention on Human Rights. The case law of the Commission and the Court has made clear that the Convention does not give special rights to minorities but may be used to protect their traditional life-style and protect minorities from discriminatory treatment. Several experts find it disappointing that the European Convention on Human Rights does not include a minority provision. Thornberry writes that "[t]he provision in the European Convention is illmatched with European constitutional arrangements to benefit particular groups".180 In my view, the Council of Europe is facing a great challenge today in adapting the application of the Convention and its Protocols and creating a network of provisions together with the Framework Convention and the European Charter for Regional or Minority Languages. This adaptation does not entail simply the introduction of new rights in the existing or in new documents. To use Clapham's pertinent words: the simple granting of rights to everyone has been shown to do little for marginalised and powerless groups(. .. ) The new demands of citizens in Europe relate to topics such as environmental policy, consumer risks child care and discrimination.181

It has been shown above that the instruments leave room for an active protection of minorities and of members of minorities. It is up to the members (16 December 1991) which requires guarantees for the rights of minorities in accordance with CSCE-commitments, published in 4 EJIL (1993), p. 72; and Opinions of the Arbitration Committee on Yugoslavia, Nos. 1-3 in 3 EJIL (1992), pp. 182-185 and Nos. 4-10 in 4 EJIL (1993), pp. 74-91. In Opinions Nos. 1 and 2 the Arbitration Committee (surprisingly) asserts that the respect of minority rights has become a peremptory norm of general international law and is binding on all parties involved in a succession of states. For comments see A. Pellet, The Opinions of the Badinter Arbitration Committee .. ., in 3 EJIL (1992), pp. 178-181; R. Rich, Recognition of States: the Collapse of Yugoslavia and the Soviet Union, in 4 EJIL (1993), pp. 36-65 with comment by D. Tiirk, 4 EJIL (1993), pp. 66-71; see also S. Mahmoudi, Recognition of States: The Case of Former Yugoslav Republics, in 0. Bring and S. Mahmoudi (eds.), Current International Law Issues - Nordic Perspectives, 1994, pp. 135-159. ISO. P. Thornberry, Joe. cit., p. 308; A. Baka, Joe. cit. ISL A. Clapham, Joe. cit., p. 201.

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states and to the control organs of the Council of Europe to see that this protection becomes a reality. As shown by the above analysis, the treatment of the minority issue by the Council of Europe is characterised by some special features. These features have to do both with the purpose of the organisation, that is European unity and democracy, and with the structural balances of the organs of the organisation. We saw at the beginning of this chapter that European unity and democracy are the aims and justifications of the Council of Europe and its statute. The protection of human rights was originally seen as a method for the enhancement of these goals, but has increasingly become an independent task of the Council of Europe. As both the prevention of conflict and protection of human dignity are constitutive elements of European cooperation, there is no doubt that minority protection fits well into this framework. The political organs of the Council (the Committee of Ministers and the Parliamentary Assembly) have not had a common view and position vis a vis the minority issue. The Parliamentary Assembly has been working for the adoption of legal rules concerning minorities, but these efforts have most often not been endorsed by the Committee of Ministers. The unclear and confusing signals given by the political organs of the Council of Europe on the minority question may be one of the reasons why the judicial organs (the Commission and the Court) have shown a reluctance to deal with minority issues, even on the (limited) basis of the clause of "association with a national minority" in the non-discrimination provision in Article 14 of the European Convention on Human Rights. Now that the Council of Europe has adopted the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages, and has thus put minority protection on its agenda, it is possible that the Court, too, will be more willing to discuss the implications of the Convention for the situation of minorities.

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CHAPTER9 MINORITY PROTECTION IN THE ORGANISATION FOR SECURITY AND CO-OPERATION IN EUROPE 9.1. Introduction The Organisation for Security and Co-operation in Europe (OSCE) dates back to 1972. 1 Even though it has existed for almost 25 years the OSCE is still a relatively unknown international forum. For this reason, and in order to be able to discuss the question of the justifications of minority protection, I will, before proceeding to the examination of minority issues in the OSCE, give a thorough introduction to its background, institutions and working methods. The decision to convene a conference was taken in connection with the SALT-negotiations between the USA and the USSR. 2 Discussions on the convening of such a conference had, however, been conducted already since the 1950s. The Warsaw Pact states desired the development of economic relations and the exchange of technology between East and West, while the West mainly aimed at a free flow of individuals, information and ideas. The CSCE was initiated due to the impossibility of achieving a comprehensive peace treaty in Europe at the end of World War II. The Soviet Union pursued

I. The OSCE was until 1 January 1995 called Conference on Security and Co-operation in Europe (CSCE). The change of name reflects the recent institutionalisation of the Conference. In this chapter I tend to use "OSCE" when talking of the organisation after 1/1/1995 or when referring to it in general, while "CSCE", or "the Conference", are the terms used when citing names and documents from the period before 1995. Documents for this chapter have mainly been collected with the help of the Prague office of the Secretariat, the Department for Chairman-in-Office Support and the Office of the HCNM of the OSCE and the Swedish Ministry for Foreign Affairs. Certain documents, including a large part of the reports of the High Commissioner on National Minorities (1993-1995), are even accessible at the Internet Nato gopher (http://www.nato.int) under "other international organisations". 2 · The background of the CSCE and the early negotiations are vividly described in L.V. Ferraris (ed.), Report on a Negotiation: Helsinki-Geneva-Helsinki 1972-1975, 1979. For main documents see A. Bloed (ed.), From Helsinki to Vienna: Basic Documents of the Helsinki Process, 1990. This is a collection of OSCE-documents dating from the Final Recommendations of the Helsinki Consultations (June 1973) until the Concluding Document of Vienna (January 1989). An updated and far more comprehensive collection covering documents up to 1993 was published by A. Bloed (ed.) in 1993, The Conference on Security and Co-operation in Europe -Analysis and Basic Documents 1972-1993, 1993. Several important OSCE-documents have also been published in lntemational Legal Materials (ILM) and in the Human Rights Law Journal (HRLJ).

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a recognition of the territorial status quo in Europe, while western states emphasised issues involvning freedom of information. 3 The discussions took place during the era of the Cold War and expectations concerning the results and the effectiveness of the Conference were very modest. From the very beginning the OSCE chose a pragmatic, political approach. Consultations on the Conference started already in 1972 in Helsinki. They continued through the first stage of the Conference: the meeting of Foreign Ministers (1973); the second stage: the experts' meeting in Geneva (1973-1975); and, finally, ended with the third and most important stage: the meeting of the Heads of state or government of the 35 participating states in Helsinki in 1975. 4 On 1 August 1975 the Heads of state or government signed the Final Act. 5 After the meeting in Helsinki in 1975 there have been five follow-up meetings: in Belgrade (1977-78), Madrid (1980-83), Vienna (1986-89), again in Helsinki in 1992 (called Helsinki-II), and finally, in Budapest in 1994 (Budapest Review Conference). These large-scale and lengthy follow-up meetings, where the central and overall issues are discussed, should not be confused with the various other OSCE meetings of the Council (of Ministers for Foreign Affairs), of experts, of the Conference on the Human Dimension etc. After Helsinki (1975), summit meetings have taken place in Paris (1990), 6 and in combination with the follow-up meetings in Helsinki (1992) and Budapest (1994). In the Charter of Paris (1990) it is stated that follow-up meetings will be held as a rule every two years and their duration should not exceed three months. 7 So, we see a will to make such meetings more regular and shorter. The next meeting will take place in Lisbon in 1996.

9.2. Participation in the OSCE The OSCE has no formal procedures for the admission of new participating Minority Rights in the CSCE context, in Israel Yearbook on Human Rights, 1991, Vol. 20, pp.197-221. 4 · The 35 states were all the European states, with the exception of Albania, and including Canada and the United States of America. The OSCE has at present 55 participating states (but only 54 active members, as Yugoslavia, i.e. Serbia, Montenegro, has been suspended ). It is doubtful whether one should use the term "member'', as the OSCE has no formal procedures for the admission of new states. OSCE-documents use the term participating states. It may be noted here that the Holy See is participating in the OSCE. 5 · Helsinki Final Act, 14 ILM 1975, p. 1272. 6 · The meeting in Paris reflects the radical changes in Europe after the collapse of the communist regimes. The final document is entitled Charter of Paris for a New Europe, 30 ILM 1991, p. 190. 7 · Chapter I, section D of the Supplementary Document in the Charter of Paris ( 1990). 3· M. Tabory,

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states. 8 In the Final Recommendations of the Helsinki Consultations (which is often called the "Blue Book" and is the main procedural document of the OSCE, adopted during the early negotiations in 1973) we find the following provision: Participation (54) All European States, the United States and Canada shall be entitled to take part in the Conference on Security and Co-operation in Europe. If any of these States wishes to attend as an observer it may do so. In that case, its representatives may attend all stages of the Conference and of its working bodies, but shall not participate in the taking of decisions. Such a State may decide later to accept these decisions or some of them under the conditions defined by the Conference.

However, in recent years the OSCE has developed some practices relevant to participation. The OSCE requests nowdays states who wish to become participants to submit letters accepting all OSCE commitments, including the Helsinki Final Act and the Charter of Paris for a New Europe. Letters have been sent by the new participating states such as Albania, 9 Estonia, Latvia, Lithuania, lO Armenia, Azerbaijan, Belarus, Kazakhstan, Kirgistan, Moldova, Tajikistan, Turkmenistan, Ukraine, Uzbekistan,11 the Czech and Slovak Republics. 12 In addition, the OSCE has sent Rapporteur Missions to all new eastern European states upon their admission. Another such participation practice is the possibility of suspension of a participating state, a practice which was used for the first (and, so far, only) time in July 1992 regarding Yugoslavia (Serbia and Montenegro). Finally, states, including non-European states, may participate as observers. For several years Albania attended meetings only as an observer. Japan has at present observer status in matters affecting that country . 13 The decision for accepting an observer is in principle taken on an ad hoc basis.

9.3. Main Organs of the OSCE For many years the CSCE did not have a firm institutional structure. The Schlager, The Procedural Framework of the CSCE: From the Helsinki Consultations to the Paris Charter; I972-I990, in HRLI, 1991, Vol. 12, No. 6-7, pp. 221-237. Cf. with the admission of new members in the Council of Europe, chapter 8.6. above. 9 · Letter to the Chairman-in-Office, dated 18 June 1991, Annex 1 to the Document of the Berlin Meeting of the CSCE Council, 19-20 June 1991. 10· Letters to the Chairman-in-Office, September 1991, Annex to the Document of the Moscow Additional Meeting of the CSCE Council, 10 September 1991. l l. Letters to the Chairman-in-Office, Annex to the Document of the Prague Meeting of the CSCE Council, 30-31 January 1992. 12 · Letter to the Chairman-in-Office, Annex 3 to the Document of the Stockholm Meeting of the CSCE Council, 15 December 1992. 13 · See Section N of the Helsinki Decisions of the Helsinki Documents I992: The Challenges of Change. 8 · E.

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wish to preserve flexibility explains the fact that the CSCE has had only a few permanent institutions and well-regulated procedures. 14 During the first fifteen years of its existence the CSCE lacked not only a co-ordinating administrative organ but also permanent political organs. The need for at least some co-ordination was evident as early as 1980. 15 After 1990 there was a change of attitudes as the activities and concerns of the OSCE were constantly expanding and the need for co-ordination became stronger. Several new institutional structures emerged at the Paris Summit Meeting (1990). 16 Since then the OSCE has been trying to find a proper balance between, on the one hand, political, flexible, non-bureaucratic working models and, on the other hand, stability, regularity and openness. As the activities of the OSCE are expanding, and the authority of the OSCE is becoming stronger and more important, it is natural that there is also more need for co-ordination. An area in need of clarification is that of the division of tasks and responsibilities between certain OSCE organs. 17 Otherwise the credibility of the OSCE as a promoter of peace and security in Europe would be in danger of being undermined. The main executive organ of the OSCE is the Ministerial Council (Ministers for Foreign Affairs). 18 The meetings of the Ministerial Council provide the central forum for political consultations within the OSCE. The Council meets once a year. 19 Between the meetings of the Council, the Permanent Council is responsible for overview, management and co-ordination, and "will act as the Council's agent in taking appropriate decisions". 20 The Permanent Council is now based in Vienna. An important position in the hand14 · A.

Bloed, From Helsinki .. ., p. 9. P. van Dijk, The Final Act of Helsinki - Basis for a pan-european system? , in Netherlands Yearbook in International Law, 1980, pp. 97-124, at p.123. 16· The supplementary document of the Charter of Paris for a New Europe concerning institutional arrangements formalised the existence of the Council, the Committee of Senior Officials, the Secretariat, the Conflict Prevention Centre (CPC), and the Office for Free Elections. 17 · There is great uncertainty, for instance, concerning the role of the Senior Council (formerly Committee of Senior Officials) which is based in Prague and meets four times a year. See A. Bloed, OSCE Faces Violent Crises, in Helsinki Monitor Vol. 6, No. 2, 1995, pp. 52-59. The OSCE is at present working on a compilation of a "Consolidated Text on Structures and Institutions". 18 · At the Budapest Summit Meeting (1994) OSCE organs were renamed. Thus, the previously called CSCE Council was named Ministerial Council. 19 · Section I, para. 16 in Budapest Decisions of the Budapest Document 1994: Towards a Genuine Partnership in a New Era. 20 · The Permanent Council was earlier called Permanent Committee. See Prague Document on Further Development of CSCE Institutions and Structures, 1992 and Para. 18 in Budapest Decisions, 1994. It is composed of the permanent representatives of the participating states. 15 ·

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ling of day-to-day issues is that of Chairman-in-Office. 21 The chairmanship rotates among the participating states on an annual basis. Hungary held the chairmanship from December 1994 until November 1995 and was succeeded by Switzerland (December 1995-November 1996). 22 The Senior Council (formerly Committee of Senior Officials) is an intermediate body which sets forth policy and discusses central budgetary issues. 23 In 1990, the participating states decided to establish a Secretariat in Prague. The Secretariat gives administrative support to the Ministerial Council, the Senior Council and the Permanent Council. In 1992, at the Stockholm Meeting of the CSCE Council, the Ministers decided to establish a Secretary General assisted by a Secretariat and based in Vienna. 24 Vienna has become the centre of OSCE activities, and most participating states have permanent OSCE-missions in that city. The Paris Summit Meeting (1990) established also two other administrative organs: the Conflict Prevention Center (CPC) in Vienna, and the Office for Free Elections in Warsaw. The Office for Free Elections was enlarged into an Office for Democratic Institutions and Human Rights (ODIHR) in Warsaw. 25 Finally, the High Commissioner on National Minorities took up his duties in 1993, and these duties will be discussed in detail below. 26

9.4. Characteristics of the OSCE The Organisation for Security and Co-operation in Europe has several characteristics that we do not encounter within other organisations and fora of regional co-operation. Much of this depends on the nature and purpose of the OSCE. Flexibility. The OSCE was seen from the very beginning as a political forum 2 1. See para. 12 of the Helsinki Decisions, 1992, which states that the Chairman-in-Office is responsible for co-ordination and consultation on current issues. 22 · Sweden held the chairmanship in 1993. Denmark will be holding the chairmanship in 1997. 23 · Budapest Decisions, 1994, para. 17. 24 · The Prague secretariat has thus become "the Prague Office of the OSCE Secretariat" and has a special responsibility in spreading information regarding the OSCE and producing the OSCE Newsletter. On the mandate of the Secretary General see Annex 1 of the Document of the Stockholm Meeting of the CSCE Council, 1992. 25 · See Report to the CSCE Council from the CSCE Seminar of Experts on Democratic Institutions, Oslo, 15 November 1991 and Prague Document on Further Development of CSCE Institutions and Structures of the Prague Meeting of the CSCE Council, 30-31 January 1992. 26 · Regarding the High Commissioner on National Minorities see below chapters 9.8.10. and 9.8.11.

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of dialogue and negotiations in order to improve relations in Europe. The concept of "detente" was a keyword during the initial stage of the discussions on a conference. Issues of security, economic co-operation, free movement of information and persons were the central points of departure. Diplomacy, and, more recently, preventive diplomacy are the primary working methods of the OSCE. 27 At the Budapest Summit Meeting of 1994, when several changes of names took place and the Conference became an Organisation, it was clarified that the change in name alters neither the character of the commitments nor the status of the institutions and it was stressed that: "In its organisational development the CSCE will remain flexible and dynamic". 28 Widened security concept and linkage of the "baskets". Another central feature of the OSCE process is the linkage of the three so-called "baskets" of the Final Act of Helsinki (1975). These three baskets were: 1. (military) security, 2. co-operation concerning economic affairs, science, technology and the environment, 3. humanitarian issues. The linkage of these three fields is important in order to understand the way the OSCE has worked and still works. Under the security-basket of the Final Act the participating states adopted ten principles which should guide their mutual relations. 29 After the text of the ten principles follow comments on the relationship between these principles. The Final Act says: All the principles set forth above are of primary significance and, accordingly, they will be equally and unreservedly applied, each of them being interpreted taking into account the others.

As such, this statement is directly connected to the Declaration of Principles of the Final Act; in reality it has come to encompass the work of the OSCE as a whole. In practice, it means that any progress within one field should be accompanied by equivalent progress in the other fields of the OSCE process. In this way progress in the field of demilitarisation should be balanced and accompanied by progress in the field of human rights. 30 The term "result balance" has been used to describe this principle. Helgesen has correctly pointed out that the principle of result balance is not always applied; in some cases stagnation in one field (e.g. military security) might lead to concessi27 · On various aspects of preventive diplomacy see S. Carlsson (ed.), The Challenge of Preventive Diplomacy - The Experience of the CSCE, 1994. 28 · Section I, para. 29 of the Budapest Document 1994: Towards a Genuine Partnership in a New Era. 29 · On the Final Act and the Declaration of Principles, see chapters 9.5. and 9.7.1. 30 · In his speech at the Conference on Minorities, Human Rights and the CSCE Process (Stockholm, December 1992), Lars-Erik Lundin, Swedish Ministry for Foreign Affairs, underlined the fact that linkage is still an important factor in the CSCE process.

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ons in another (e.g. human rights) in order to reopen discussions and regain momentum. 31 This linkage has been a cornerstone and at the same time a stumbling block during debates on the implementation of the commitments in the Final Act. The situation has changed during the past few years. The crisis in former Yugoslavia and the former USSR has made most governments realise that respect for human rights is one of the most important factors in the preservation of peace and security. The implementation by all participating states of the OSCE human rights commitments is an essential aspect of the OSCE's role in conflict prevention. The issue of human rights, together with that of peaceful settlement of disputes, have become the most urgent issues facing the OSCE. The linkage is now understood not as a result balance but as a wide security concept which also includes protection of human rights and the accommodation of minority issues. 32 Therefore, the term "baskets" has been replaced by the terms "comprehensive security" and "conflict prevention". 33 Decision-taking by consensus. Another cornerstone of the OSCE is the rule that all decisions shall be taken by consensus. The Rules of Procedure of the Final Recommendations of the Helsinki Consultations define consensus as the absence of any objection expressed and submitted by a Representative of a participating state if the objection constitutes an obstacle to the taking of the decision in question (Article 69). The consensus rule reflects the principle of the sovereign equality of the participating states (Article 65). The consensus rule has of course created strong political tension at various OSCE meetings. 34

Even though the consensus principle is still of paramount importance, it is true that it has been modified recently in relation to human rights issues. At the Moscow Meeting of the Human Dimension (1991) we find two provi3 1. J. Helgesen, Between Helsinkis - and Beyond? Human Rights in the CSCE, in A. Rosas and J. Helgesen (eds), Human Rights in a Changing East/West Perspective, 1990, pp. 241263, at p. 248. 32 · On the security concept, see above chapter 4.1. See also M. Wiingborg, Organisationen for siikerhet och samarbete i Europa (OSSE) 20 ar, 1995. 33 · Observers have noted that the economic dimension of the security concept is its less developed aspect and needs to be further enhanced within the OSCE. See R. Zaagman (ed.), A Focus on the Future, in Helsinki Monitor, 1995,Vol. 6, No. 3, pp. 40-51. 34 · The complete refusal of Romania to accept a compulsory supervisory mechanism as regards the human dimension was the reason for not having a concluding document of the Paris Human Dimension Meeting in May 1989. See A. Bloed, A New CSCE Human Rights Catalogue: The Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, in A. Bloed and P. van Dijk (eds), The Human Dimension of the Helsinki Process The Vienna Follow-up Meeting and its Aftermath, 1991, pp. 54-76, at p. 56.

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sions which permit the initiation of OSCE action in spite of the non-co-operation of the state concerned. Article 9 (of section I) provides: if a state has been requested to establish a mission of experts, but has not done so within ten days, or if the question has not been resolved as a result of the mission, then the state which requested the mission can, with the support of at least five other participating states, initiate the establishment of a mission of CSCE rapporteurs. Article 12 goes even further and states that if a participating state considers that a "particularly serious threat to the fulfilment of the provisions of the CSCE human dimension" has arisen in another CSCE state, then it may, with the support of at least nine other participating states, initiate the appointment of an CSCE rapporteur. 35 The consensus principle was narrowed down even more at the Prague Council Meeting (1992). 36 The Council decided that "appropriate action may be taken by the Council or the Committee of Senior Officials, if necessary in the absence of the consent of the State concerned, in cases of clear, gross and uncorrected violations of relevant CSCE commitments." 37 These are, indeed, revolutionary decisions within the political structural frame of the CSCE and they create an important exception to the consensus rule. 38

Lack of openness. The OSCE did not originally make any great effort to increase transparency and to inform the public on its work, its documents, its mechanisms and institutions. 39 The reasons were not solely the limited resources and the budgetary difficulties. Now that the OSCE is institutionalised and produces more and more documents of importance for all participa-

35 · General guidelines on the mandate and work of the rapporteurs and missions are elaborated in the Moscow Document (1991). 36 · M. Pentikfilnen, Human Rights Commitments within the CSCE Process: Nature, Contents and Application in Finland, 1992, p. 29. 37 · Decision IV of the Prague Document on Further Development of CSCE Institutions and Structures (January 1992). By "actions" the Council means purely political actions, such as political declarations. The provision exists parallel to the other human dimension mechanisms (see Vienna Concluding Document, 1989, and Moscow Document, 1991). This possibility to decide on action even without the consent of the state concerned has been called "consensus-minus-one-principle" and made possible the suspension of Yugoslavia in 1992. 38· It is unclear though what the term "uncorrected" stands for in this context. Does it mean that the participating states first need to make use of the Vienna human dimension mechanism? In any case, it is the opinion of the author, that this provision should be seen as the last resort, and that, in all cases, efforts should be made to achieve decisions by consensus. 39· Amnesty International: The Conference on Security and Cooperation in Europe. Human Rights in the new Europe: The CSCE in search of a role, 1992, AI Index: IOR 52/ 03/92, Amnesty International, News Release: CSCE - Amnesty International calls for implementation and openness, 1992, AI Index: IOR 52/02/92 and Amnesty International: The Conference on Security and Co-operation in Europe (CSCE): The Budapest Review Conference and protection of human rights, 1994, AI Index: IOR 52/03/94.

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___C_hapter 9 -

Mino}"~ty

Protection}'! the OS_CE

ting states, it is an urgent and logical consequence to make information on the organisation available to the public and to disseminate all important documents. The Secretariat, the Office for Democratic Institutions and Human Rights, the Chairman-in-Office, and, of course, each participating state should assume this responsibility. 4 Considerable improvements have already been made through various publications by the Secretariat and ODIHR.

°

The more active presence of non-governmental organisations (NGOs) in the discussions would give the OSCE better information through direct sources, and could also promote preventive measures. NGOs can spread information on OSCE provisions and commitments and increase both government and public awareness. Steps have been taken recently that should enhance NGO participation in the OSCE. 41

9.5. The Final Act of Helsinki On 1 August 1975 the Final Act of the Conference was signed. The Final Act deals primarily with international security and relations between states. It covers a very wide range of issues under various headings. As already noted, the subject areas of the Final Act are divided into three main "baskets": security in Europe, co-operation in the field of economic ajfairs, science, technology and environment, and issues concerning co-operation in humanitarian and other fields. The subtitles of the third basket are: human contacts, information, culture and education. The Final Act ends by a short chapter on the follow-up of the Conference. It is clear from the wording of this section that the participating states did not really expect the Conference to have much of a future. The first basket is the central one in the sense that it lays down guidelines for all work, standard-setting, interpretation and implementation within the CSCE context. In this first basket we find the "Declaration of Principles"; all the ten principles are of primary significance, guiding the relations of the participating states. This "Decalogue" lists the following principles: I) Sovereign equality, respect for the rights inherent in sovereignty, II) Refraining from the threat or use of force, III) Inviolability of frontiers, In Sweden the government presents to the parliament annual reports on OSCE activities. See Regeringens skrivelse 1994195: 163 and 1995196: 164. 4 1. In September 1995 the Secretary General of the OSCE presented a Study on the Enhancement of NGO Participation, REF.SEC/212/95. As regards the human dimension see below chapter 9.7. 40 ·

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IV) Territorial integrity of states, V) Peaceful settlement of disputes, VI) Non-intervention in internal affairs, VII) Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief, VIII) Equal rights and self-determination of peoples, IX) Co-operation among states, X) Fulfilment in good faith of obligations under international law. As already explained, the participating states declared that all these principles are of equal importance, and each of them shall be interpreted taking into account the others. Several of the principles included in the Declaration of the Final Act existed already in legally binding instruments such as Chapter 1 on "Purposes and Principles" of the Charter of the United Nations. This has to be taken into account when interpreting the Final Act as well as other OSCE documents which are based on the Final Act. 42 Of these Principles, it is primarily principles VI, VII and VIII (non-intervention, respect for human rights, equality and self-determination of peoples) which are of direct relevance as regards minorities issues, and will be further discussed below.

9.6. The Nature and Significance of OSCE Documents There is general agreement in the literature that the Helsinki Final Act is not a legally binding document. 43 It is "a politically binding document". 44 It has been observed by Bloed and by Pentikainen that the term "non-binding" should be avoided when it comes to the Final Act. The Final Act is binding 42 · On the interrelation of the Final Act with other international instruments see F. Ermacora, Rights of Minorities and Self-Detennination in the Framework of the CSCE, in A. Bloed and P. van Dijk (eds.), The Human Dimension of the Helsinki process, 1991, pp.197-206. 43 · See generally A. Bloed, The Conference ... , 1993, pp. 22-25; M. Pentikllinen, Joe. cit., p. 4; T. Buergenthal (ed.), Human Rights, International Law and the Helsinki Accord, 1977, p. 3. See also P. van Dijk, The Final Act of Helsinki ... , loc. cit., pp. 97-124; H. S. Russell, The Helsinki Declaration: Brobdingnag or Lilliput? in AJIL, I 976, Vol. 70, pp. 242-272; T. Schweisfurth, Zur Frage der Rechtsnatur, Verbindlichkeit und Volkerrechtlichen Relevanz der KSZE-Schlussakte, in Zeitschrift far ausliindisches offentliches Recht und Volkerrecht, Vol. 36/4,1976, pp. 681-726; A. Heraclides, Security and Co-operation in Europe: the Human Dimension, 1972-1992, 1993, pp. 35-38. 44 · Russell, Joe. cit., pp. 246-249, argues extensively on the reasons why the Helsinki Final Act is not legally binding. The strongest argument is the will oi the participating states which was expressed in many ways, inter alia by the fact that it was decided that the document is not eligible for registration with the Secretariat of the United Nations (Article 102 of the UN Charter). However, as Russell also points out, some of the texts prepared in Helsinki took on "some of the tone of legally binding instruments". He mentions as well that many observers believed (already in 1976) that the Helsinki Final Act "may become in fact one of the most widely quoted sources of customary international law", (p. 248).

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upon the states as a political commitment. 45 It has been argued that it is unclear whether certain parts of the Act in fact have legal implications. 46 A source of confusion is that it is possible for states to make reservations and interpretative statements on CSCE-documents as if these documents were treaties. This is regulated by paragraph 79 of the Blue Book of the CSCE: Representatives of the States participating in the Conference may ask for their formal reservation or interpretative statements concerning given decisions to be duly registered by the Executive Secretary and circulated to the participating States. Such statements must be submitted in writing to the Executive Secretary.

The Blue Book does not define the difference between reservations and The position one takes on the issue of whether an international instrument constitutes "law" or is a "moral" or a "political" commitment is closely connected to the position one takes vis a vis the normative concept of law in general and international law in particular. See H.L.A. Hart, The Concept of Law, 1961, especially chapter X concerning international law. David Kennedy argues that the international law doctrine on sources of international law is a "quite well worked out argumentative practice about the authority or binding nature of various legal instruments". One may elaborate with "hard" and "soft" arguments concerning the binding force of agreements and come to different conclusions as regards their effects. See D. Kennedy, International Legal Structures, 1987, especially chapter 1, pp. 11-107, on sources of international law. The link between the normative concept of law, the sources and the binding force has not been analysed by many experts. Bos was one of the first to touch upon this subject. See M. Bos, The Recognised Manifestations of International Law, A New Theory of "Sources", in German Yearbook of International Law, 1971, Vol. 20, pp.11-76, and by the same author, A Methodology of International Law, 1984. Bos concludes that no single normative concept of law exists for international relations, but a plurality of such concepts leading to different theories on sources. The arguments usually presented concerning the Helsinki Final Act and its nature emphasise the "hard" claims concerning the will and intent of the states. The intent of the parties is of cardinal importance in the Vienna Convention on the Law of Treaties (especially concerning the interpretation of treaties under Articles 31-32). But what is a treaty is defined in Article 2 which makes reference to agreements governed by international law. International law is most often defined through the discourse on its sources, and the sources (with Article 38 of the Statute of the International Court of Justice as a starting point) make direct reference to treaties. The argument is indeed circular! This has been the reason for recent efforts towards a more flexible attitude vis a vis norms of international law. Koskenniemi writes: "presenting the available choice as one between thinking of such norms in consensual terms or leaving them beyond the law, then, on the doctrines's own assumptions, their validity becomes a matter of subjective opinion". See M. Koskenniemi, From Apology to Utopia, 1989, p. 418, and by the same author see also: The Normative Force of Habit; International Custom and Social Theory, in The Finnish Yearbook of International Law, 1990, Vol. I, pp. 77-153. Following this flexible legal-sociological-political approach, the real importance of the difference between legally binding and politically or morally binding is in effect of marginal character. See also E. Roucounas, Engagements paralleles et contradictoires, in RdC, 1987, VI, pp. 9-288, at pp. 176-178 and by the same author, Remarques sur la portee juridique des engagements CSCE concernant la dimension humaine, in La CSCE: Dimension humaine et reglement des d(fferends, 1993. 46 · P. van Dijk, Joe. cit., p. 110. 45 ·

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interpretative statements. 47 In the Journals of meetings all statements are registered as "interpretative statements". There is an apparent conflict between the right to make reservations and the principle of decision-making by consensus. 48 These statements, whether we call them reservations or interpretative statements, reveal an anxiety regarding the obligations. Little has been written concerning the binding force and legal nature (or nonlegal nature) of subsequent OSCE-documents. It has been generally assumed that, as a result of the non-legal character of the Final Act, they are not legally binding. 49 An interesting issue of OSCE-terminology with possible implications on the legal nature of OSCE-documents is the fact that in OSCE-documents one finds consistently the use of the term "OSCE-commitments" as opposed to "obligations under international law". 50 This terminology supports the non-legally binding character of the documents. One may easily find in OSCE-documents wording with a legal tone as well as wording with a non-legal tone. Therefore, the use of certain words (e.g. "will respect" or "will promote", "undertake to ensure", "will deal in a positive and humanitarian spirit with ... " etc.) is not a sufficient argument for excluding the binding effect of the provisions under consideration. More important is the following: the trend towards institutionalisation, especially after the Budapest meeting in 1994, the creation of implementation control mechanisms regarding human dimension commitments, and recently the Stockholm Convention on Conciliation and Arbitration (1992), all indicate a strong will fully to implement the OSCE-agreements. 51 OSCE-documents are documents adopted by consensus and after negotiations, according to the methods of international law. One should, finally, not forget that seveHeraclides suggests following the solutions of the Vienna Convention on the Law of Treaties, but this does not give adequate guidance. A. Heraclides, Security and Co-operation in Europe ... , 1993, p. 17. 48 · Schlager maintains that an interpretation or reservation may not go so far as to conflict with the consensus rule. Loe. cit., p. 225. The Blue Book does not give any guidance to states as how to react to improper interpretative statements. 49 · A. Heraclides, Security and Co-operation .. ., loc. cit., p. 36. 50· In the Vienna Declaration of the Summit Meeting of the Council of Europe, October 1993, the Heads of state or government confirm their determination to implement fully the "commitments" concerning the protection of national minorities contained in OS CE-documents and they consider that the Council of Europe should apply itself to transforming (to the greatest possible extent) "these political commitments into legal obligations". See appendix II of the Vienna Declaration of the Council of Europe which is discussed above in chapter 8.3.3. 5 1. The Stockholm Convention on Conciliation and Arbitration within the OSCE establishes a Court of Conciliation and Arbitration (Article 1) for the peaceful settlement of disputes between states parties to the convention. The Convention lays down detailed rules on the function and decision-making of the Court, but has at the time of writing not yet been used. According to information received from the Swedish Ministry for Foreign --> 47 ·

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ral provisions in the Helsinki Final Act (especially the Declaration of Principles of the Final Act) and other OSCE-documents are binding in any case as they are restatements of norms existing in other legally binding instruments. The participating states cannot and may not make their obligations under international law less binding by incorporating them later in nonlegally-binding documents. One of the problems with OSCE-documents is that, because of their political and diplomatic character, there are no travaux preparatoires to be found which may shed some light on the background and on the intention of the negotiating states when accepting a certain clause. We may try to find arguments in the description of the negotiations by various writers and diplomats but this information has no authoritative status under Articles 31-32 of the Vienna Convention on the Law of Treaties. 52 It is, however, very often our only source of information regarding the context and background of the documents concerned.

9.7. The Human Dimension of the OSCE We have already touched upon several human rights issues within the OSCE. This chapter will give a short overview of the human rights issue in the OSCE, with special emphasis on aspects (e.g. implementation mechanisms) and documents relevant to minority issues.

9.7.1. The Helsinki Final Act and Human Rights

As indicated above, the basis of all human rights work within the OSCE is Principle VII on "Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief' of the Final Act of Helsinki. The Principle includes the following section: The participating States on whose territory national minorities exist will respect the right of persons belonging to such minorities to equality before the law, will Affairs (which is the depository), the Stockholm Convention on Conciliation and Arbitration had, as of 24 June 1996, been ratified by 22 states: Albania, Austria, Croatia, Cyprus, Denmark, Finland, France, Germany, Greece, Hungary, Italy, Liechtenstein, Monaco, Poland, Romania, San Marino, Slovenia, Sweden, Switzerland, Tadjikistan, Ukraine and Uzbekistan. 52· For accounts and impressions of diplomats involved in the process, see L.V. Ferraris (ed.), Report on a Negotiation: Helsinki-Geneva-Helsinki 1972-75, 1979; J. Sizoo, and R. T. Jurrjens, CSCE DEClSION-MAKING: the Madrid Experience, 1984; V. Mastny, Helsinki, Human Rights, and European Security - Analysis and Documentation, 1986; A. Heraclides, Security and Co-operation in Europe: the Human Dimension, 1972-1992, 1993, and by the same author, The CSCE and Minorities. The Negotiations between the Commitments, 1972-1992, in Helsinki Monitor, 1992, Vol. 3, No. 3, pp. 5-18.

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Chapter 9 - Minority Protection in the OSCE afford them the full opportunity for the actual enjoyment of human rights and fundamental freedoms and will, in this manner; protect their legitimate interests in this sphere. The participating States recognize the universal significance of human rights and fundamental freedoms, respect for which is an essential factor for the peace, justice and well-being necessary to ensure the development offriendly relations and co-operation among themselves as among all States.

In Principle VII we find an anti-discrimination clause and a reference to national minorities. The text names in particular the freedom of thought, conscience, religion and belief, and reflects the indivisibility of all human rights (civil, political, economic, social and cultural). Principle VII has a rather vague content, 53 but its importance lies in the fact that it has placed human rights among the cardinal guidelines of OSCE-work, and that it makes direct reference to the UN Charter, the Universal Declaration and the International Covenants, thus creating a broad context for the interpretation of OSCE commitments. 54

9. 7.2. Subsequent Meetings: to Budapest ( 1994) via Vienna (1989)

In the second follow-up meeting in Madrid (1983), and in a very tense diplomatic atmosphere, the participating States reaffirmed the Helsinki commitments and they also agreed upon important additions with regard to the equality of sexes and the right of workers freely to establish and join trade unions. 55 From our point of view, however, (i.e. minorities issues), the most important step was the following provision of the chapter on "Questions relating to security in Europe": They {the participating States] agree to give favourable consideration to the use of bilateral round-table meetings, held on a voluntary basis, between delegations composed by each participating State to discuss issues of human rights and fundamental freedoms in accordance with an agreed agenda in a spirit of mutual 53 · There are several analyses of human rights in the OSCE, inter alia T. Buergenthal (ed.): Human Rights, International Law and the Helsinki Accord, 1917, and M. Pentikiiinen, Joe.cit. 54 · It is very important to underline that the term "humanitarian" in the OSCE-context does not correspond wholly with that of international law. In general international law "humanitarian law" covers the ius in hello which is regulated primarily by the Hague Conventions of 1907 and the Geneva Conventions of 1949. Within the OSCE the term is used in a much broader way, covering issues of both "classic humanitarian law" as well as many other issues which we usually classify as "human rights". Naturally, this inconsistent terminology causes great confusion. 55 · For a recollection of the negotiations and atmosphere during the Madrid meeting see H. Hazewinkel: The Madrid Meeting 1980-1983: An Eye-Witness Account, in A. Bloed and P. van Dijk (eds.): Essays on human rights in the Helsinki process, 1985, pp. 9-27.

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Chapter 9 - Minority Protection in the OSCE respect with a view to achieving greater understanding and co-operation based on the provisions of the Final Act.

In this way the participating states clarified that discussion on the diplomatic level of human rights concerns does not fall under Principle VI of the Final Act (non-intervention in internal affairs). This is the first step towards having some kind of control mechanism, even though this mechanism could only be used on a strictly voluntary basis. The third follow-up meeting took place in Vienna (1986-1989). During this period the improvement in East-West relations was evident. This made possible the acceptance of several new commitments concerning security and human rights. The Vienna Meeting introduced the term "the human dimension", as an umbrella term. The term was introduced as a heading of a chapter on a control mechanism in order to ensure respect for "all human rights and fundamental freedoms, human contacts and other issues of a related humanitarian character". The participating states agreed upon four methods of control for the observance of their commitments. They decided: I . to exchange information and respond to requests for information and to representations made to them by other participating states on questions relating to the human dimension; 2. to hold bilateral meetings with other participating states that so request, in order to examine questions and specific cases relating to the human dimension of the OSCE; 3. that any participating state which deems it necessary may bring situations and cases concerning the human dimension, including those which have been raised at the bilateral meetings described in paragraph 2, to the attention of other participating states through diplomatic channels; 4. that any participating state which deems it necessary may provide information on the exchanges of information and the responses to its requests for information and to representations (paragraph I) and on the results of bilateral meetings (paragraph 2), including information concerning situations and specific cases, at the meetings of the Conference on the Human Dimension as well as the main follow-up Meetings. 56 It should be pointed out that this control mechanism was in no way perfect. Severe criticism was directed against the lack of time limits for the implementation of the four control methods. 57 This does not, however, alter the This control mechanism is nowdays always referred to as "the human dimension mechanism". The Vienna mechanism was invoked several times in 1989 and 1990. The changes in Eastern Europe have made the use of the mechanism much less frequent. See A. Bloed, The Conference ... , 1993, p. 42. 57 · T. Buergenthal, The Copenhagen CSCE Meeting: a New Public Order for Europe, in HRLJ, 1990, Vol. 11, pp. 217-232, at p. 229.

56·

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fact that it was the first time an institutionalised control mechanism was introduced in the OSCE, and that the human dimension became one of the essential parts of OSCE activities. An important feature of this control mechanism is its mandatory character. States are obliged to answer questions and to forward the necessary information. In addition, the Vienna Concluding Document includes detailed provisions on the rights of minorities. 58 As regards human rights in the OSCE context, the most significant meeting was the Copenhagen meeting of the Conference on the Human Dimension in June 1990. This has been regarded by many experts as well as diplomats as the most successful human rights meeting of the OSCE. The Copenhagen Concluding Document has been called a "European Constitution of Human Rights" or at least a "European Constitution in statu nascendi". 59 The Copenhagen meeting tried to make the Vienna human dimension mechanism more effective. The Copenhagen Document includes also new elements as regards control mechanisms (additional to the human dimension mechanism): there are provisions concerning the presence of observers at national elections and at proceedings before courts (paras. 8 and 12 of the Document). It is the first time we find the term "confidence-building measures" being used in relation to issues of the human dimension. Earlier the term had only been used concerning military security issues. 60 The main body of the Copenhagen Document consists of four chapters: I. on the rule of law, II. on individual rights, III. on democratic institutions, IV. on national minorities. 61 The most important achievements of the following meetings concern the institutional aspects of the OSCE. 62 The Moscow Meeting in autumn 1991 58 · For further

analysis, see below chapter 9.8.3. a detailed analysis of the Copenhagen Document see A. Bloed: Successful meeting of the Conference on the Human Dimension of CSCE, in Netherlands Quarterly of Human Rights, 1990, No. 3, pp.235-260. 60 · One should, however, be observant of the important differences in the phraseology used in these two provisions (paras. 8 and 12). In para.8, states may invite observers who observe the national elections "to the extent permitted by law". In para.12 states accept (as a confidence-building measure) the presence of observers sent by other participating states or NGOs at proceedings before courts "as provided for in national legislation and international law". The distinction indicates that the possibility to make use of the presence of observers in elections is of a more limited character, as it requires an invitation by the state concerned. In reality, however, election observers are now almost standard practice whereas trial observers are not very often used. 6 1. Regarding chapter 4 on minorities see below chapter 9.8.4. 62 · On the organs and institutions see above chapter 9.3. 59 · For

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took important steps for the further improvement and evolution of the human dimension mechanism. Time limits were made stricter and shorter and the consensus principle was modified in relation to human rights action. 63 This softening up of the consensus principle was pursued at the Prague Council Meeting. The main improvement consisted, however, in the possibility of establishing missions of experts or rapporteurs. 64 The next follow-up meeting took place in Helsinki in the spring of 1992. The meeting has been given the name Helsinki-II. From the very beginning it was evident that Helsinki-II would not concentrate on standard-setting activities but rather on the refinement and strengthening of the institutions of the OSCE. 65 The subsequent summit document, which has the poetic title ''The Challenges of Change" elaborates on the responsibilities and mandate of the various OSCE structures, especially that of the Office for Democratic Institutions and Human Rights (ODIHR). 66 The ODIHR is to function as a secretariat for more or less all the activities concerning the human dimension and will have a central role in the procedure of the human dimension mechanism. The ODIHR has also been assigned to assist the High Commissioner on National Minorities. The Stockholm Council meeting (December 1992) did not have the human dimension as a part of its agenda. However, issues of human rights violations were discussed broadly in connection to the conflicts in former Yugoslavia and the situation in the Baltic states, Moldova, Georgia, and Tajikistan. The most important part of the Stockholm Meeting concerned dispute settlement and the above-mentioned Convention on Conciliation and Arbitration. Finally, the Ministers decided to establish the post of Secretary General of the OSCE. 67 In December 1994, the Heads of state or government met in Budapest for a to Bloed, the Moscow mechanism has been applied on a few occasions since 1992, including missions of experts to Estonia and Moldova and a mission of rapporteurs to Croatia. A. Bloed, The Conference ... , 1993, p. 44. The mission to Croatia was originally planned to cover also Bosnia, but that was changed for reasons of the personal safety of the mission members. Amnesty International has criticised the scarce use of the human dimension mechanism and the unclear tasks of the ODIHR in the document The Conference on Security and Co-operation in Europe (CSCE): The Budapest Review Conference and Protection of Human Rights, 1994, AI Index: IOR 52/03/94. 64 · Paragraphs 1-16 of the Moscow Document, 1991. 65 · A. Heraclides, Helsinki-fl and the Human Dimension: Normative Commitments, the End of an Era? in Helsinki Monitor, 1992, Vol.3, No.4, pp.65-76. 66 · See section of the Helsinki-II Document with the title: Framework For Monitoring Compliance With CSCE Commitments And For Promoting Co-operation In The Human Dimension. 67 · See also below regarding the High Commissioner on National Minorities. 63 · According

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review conference. The declaration of that meeting has the impressive title "Towards a Genuine Partnership in a New Era". 68 Apart from changing the names of most organs and the Conference itself, the Budapest Decisions include a "Code of Conduct on Politico-Military Aspects of Security", "Principles Governing Non-Proliferation", and a chapter on the human dimension expressing support for the activities of the High Commissioner on National Minorities and somewhat clarifying ODIHR' s role. In spite of these achievements the Budapest Meeting was generally not considered a great success. 69

9.8. Minority Protection in the OSCE As noted above, human rights were not a central and essential issue of the negotiations before the adoption of the Helsinki Final Act. Moreover, minorities' rights were not an issue on which negotiating states applied pressure. As Tabory writes, records of the negotiations leading to the Helsinki Final Act very seldom mention the minority issue. 70 Heraclides testifies to the "lukewarm" attitude of the West towards the Yugoslav proposals. 71 This is also reflected in the analysis and documentation of human rights and security issues within the CSCE process given by Mastny. In this extensive collection of materials covering the period 1975-1985 there is only one direct reference to minority issues. This reference reflects the disappointment felt by many because of the lack of interest shown by the western states concerning minority problems. Mastny writes: And this brings me to the general problem of apparent Western disinterest in the fate of tens of thousands of inarticulate, often poorly educated and underprivileged people - some of them believers, some of them ethnic minorities or both - in Eastern Europe whose human rights are routinely trampled underfoot by the authorities without any fear of adverse foreign reaction. 72

68 · Even though one is tempted to speculate on what is the purpose of the word "genuine", and why the "new era" was discovered only in 1994, I will refrain pursuing these points. 69 · A. Bloed, CSCEIOSCE Summit Meeting in Budapest ended in "Failure", in Helsinki Monitor, 1995, Vol. 6, No.I, pp. 66-68. 70 · M. Tabory, Minority Rights in the CSCE Context, in Israel Yearbook on Human Rights, 1991, Vol. 20, pp.197-221. 7 1. A. Heraclides, The CSCE and Minorities: The Negotiations between the Commitments, 1972-1992, in Helsinki Monitor, 1992, Vol. 3, No. 3, pp. 5-18, at p. 6. 72. V. Mastny, loc. cit., pp. 143-152. However, Mastny concludes that minorities, together with the leading intellectual dissidents, the new socialist middle class and the young generation, were those who were able to benefit in the end by the Helsinki Agreements and the direct references to protection of human rights and to put strong pressure on their governments.

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9.8.1. The Helsinki Final Act and Minorities

As mentioned above, Principle VII of the Final Act includes a minority clause. In fact, already in the Final Recommendations of the Helsinki Consultations (8 June 1973) there were two references to national minorities under Chapter ("basket") III on "Co-operation in humanitarian and other fields"; under the section on "Co-operation and exchanges in the field of culture" the Recommendations stated: (50) The Committee/Sub-Committee while considering the role of States in cooperation in the field of culture will bear in mind the contribution that national minorities or regional cultures could make to it within the framework of respect for principles referred to above. 73

The reconstruction of the negotiations as it has been made by diplomats and scholars is of value in that it places the minority clause in its context. Ferraris reveals that the draft on a minority clause was a Yugoslav initiative. 74 One may recall that at the same time Yugoslavia was always the country that tried to introduce minority clauses also within the UN-system; one is tempted to draw the conclusion that Yugoslav diplomats saw the CSCE as a new forum for discussing minority issues since the work within the UN was proceeding very slowly. The final wording is very different from the original Yugoslav proposal which read: The participating States respect the interests of national, ethnic and linguistic minorities and their right to free development, in such a way that such minorities might contribute to free development ojfriendship and co-operation between the countries and peoples concerned. 75

There was a tense atmosphere during the discussions. This was due, in the first place, to the question of minorities being referred to as groups, and, in the second place, to the question of whether states would grant special minority rights. Greece and France were the most "conservative" states and it was a Greek proposal that led the concept of "legitimate interests" to make its appearance. This reference to minorities in Principle VII of the Final Act is complemented by a clause on minorities in the Third Basket on "Co-operation in humanitarian and other fields". Under both the chapter on "Co-operation and Exchanges in the Field of Culture" and the chapter dealing with "Co-operation and Exchanges in the Field of Education" we find the following almost Under the section on education we find the same sentence (paragraph 52) with the words "in the field of culture" replaced by the words "in the field of education". 74 · L.V. Ferraris(ed.), Joe. cit., at p. 136. 75 · Ibid. 73 ·

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identical final provision: National minorities or regional cultures. The participating States, recogmsmg the contribution that national minorities or regional cultures can make to co-operation among them in various fields of culture, intend, when such minorities or cultures exist within their territory, to facilitate this contribution, taking into account the legitimate interests of their members. 76

The He_lsinki Final Act provisions are quite vaguely worded and do not specify the exact rights or protection which is guaranteed by the participating states. They only make reference to equality. This solution is in accordance with the view - which was more or less generally accepted at that time - that special minority rights are not necessary as long as individual human rights are respected, and discrimination is forbidden. What is of importance, however, is the fact that the two provisions were inserted in two different sections of the Final Act: a) we have a reference to minorities within the context of human rights in Principle VII where the explicit purpose is human dignity. Principle VII states that the participating states "will promote and encourage the effective exercise of civil, political, economic, social, cultural and other rights and freedoms all of which derive from the inherent dignity of the human person and are essential for his free and full development"; 77 b) the other provision on minorities is inserted in the section on culture and in the "third basket". Here the justification is the enrichment of cultures, i.e. a confirmation of the value of cultural pluralism. This chapter on "Co-operation and exchanges in the field of culture" includes a preamble in which the participating states are: Convinced that [such] a development of their mutual relations will contribute to the enrichment of the respective culture, while respecting the originality of each, as well ~s to the reinforcement among them of a consciousness of common values, while continuing cultural co-operation with other countries of the world [. ..].

Both provisions of the Final Act (in Principle VII and in the Third Basket) include an escape clause concerning the existence or not of minorities in the participating states ("The participating States on whose territory national minorities exist ... " and " ... when such minorities or cultures exist within their territory ... "). This can be taken to mean that the state may decide either to recognise or to ignore the existence of a minority within its territory. It can also be compared to the wording of Article 27 of the International Covenant 76 ·

In the final provision of the chapter on education the words "in various fields of culture" are replaced by the words "in various fields of education". 77. See above (chapter 4.2.) on the concept of "human dignity" as development of the personality.

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on Civil and Political Rights ("In those States in which ... minorities exist. .. "). Thornberry says: The final text is inconsistent with the Greek proposal to limit the group covered by the paragraph to those minorities recognized in some legal fashion. Neither Article 27 nor the present text should be restricted in this way. 78

It has been generally accepted that the wording of Article 27 does not give

states a free hand to accept or refuse the existence of a minority; the existence of a minority is an objective and factual issue and does not depend on its legal recognition. Such recognition is never of a constitutive character, but it may serve as an additional security and a guarantee at the domestic level. 79 I believe that this is a correct interpretation also of the clauses of the Helsinki Final Act. As has been shown by the overview made by the Minority Rights Group there are minorities in all European countries. 80

When we compare the original proposal and the final text we also see that the Final Act refers only to "national minorities" while the Yugoslav proposal included "national, ethnic and linguistic minorities". This should not, however, be seen as a limitation of the concept. Tabory concludes that the term "national minority" was chosen as a "hybrid" between the terminology in the accepted international human rights instruments and the Eastern European concept of "nationalities". 81 As explained earlier, it is primarily historical reasons that are behind the choice of one or the other term. In reality the content of "national" and "ethnic, religious and linguistic" minorities is very much the same. 82 This is also reflected in the Recommendations made by the International Helsinki Federation for Human Rights for the standard setting regarding national minorities rights. The International Helsinki Federation recommends that "the term 'national minority' used in the CSCE Documents be defined more closely", and suggests a definition of "national minority" as: P. Thornberry, International Law and the Rights of Minorities, 1991, p. 252. Article 27 see chapter 7.2.-7.6. 80· World Directory of Minorities, edited by the Minority Rights Group, 1990. The directory includes a chapter on Western Europe and Scandinavia, one on Eastern Europe and one on the USSR. In the introduction to the chapter on Western Europe and Scandinavia a general overview is given: "The minorities reviewed are basically of three kinds. The smaller linguistic and cultural groups in Europe are numerous and very self-conscious. They make demands for recognition on the part of states and are recognized in many cases. Europe also contains minorities belonging to the category of indigenous peoples ... The Roma, or Gypsy population, represent a third category by which European pretensions may be judged.", at p. 64. As regards Eastern Europe the situation is summarised in the following way: "Eastern Europe retains its historic 'status' as a region of fragile relations between states and ethnic or religious groups." (p.105). 8 1. M. Tabory, loc.cit., p. 208. 82 · On the issue of definition, see above chapter 5.

78 ·

79 · Regarding

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Chapter 9 - Minority Protection in the OSCE the totality of all those citizens of a state who are traditionally - territorial or non-territorial - residents in the territory of the state; who share common ethnic, linguistic or religious characteristics, distinguishing them from other parts of the population; who have their own cultural identity; and who are in a minority position towards the majority population of the state or of a region. 83

Clearly, this definition is very similar to the Capotorti definition with regard to Article 27 of the ICCPR. The provision of Basket III refers to "national minorities or regional cultures". It is not clear exactly what is meant by the term "regional cultures". Eddison, commenting upon the provision, says that it is a "statement of intention" of the participants to "facilitate" the cultural contribution of their minorities, recognising thus "the value of separate minority cultures". 84 The wording itself indicates that "regional cultures" are different from "minorities" (otherwise there would have been no reason for including both terms in the provision). First of all, the term "regional cultures" does not require a minority-majority relationship in the sense of numerical inferiority and a non-dominant position. According to the provision, also the culture of a (local or regional) majority - if it is somehow different from the culture of other regions of the State - is to be protected. 85 This means, in addition, that states may not argue that they have no obligation to protect because there is no "national minority". Secondly, it is clear that regional cultures may exist over state borders and the issue of citizenship is not decisive. According to Professor Sacerdoti, the wording of the Helsinki Declaration has been influenced by Eastern European practice. Thus, "national" is used to indicate ethnic and linguistic groups whose rights are expressly recognised in the Constitution and legislation. 86 Even though such an interpretation may be historically correct, it comes into conflict with the accepted principle that the /HF Recommendations for CSCE standards regarding minority rights, July 1991. The International Helsinki Federation for Human Rights (IHF) is a non-governmental organisation which monitors the compliance with the human rights provisions of the Helsinki Final act and its follow-up documents. It co-ordinates the work of national Helsinki committees and has its seat in Vienna, Austria. 84 · E. Eddison, The Protection of Minorities at the Conference on Security and Co-Operation in Europe, 1993, p. 15. 85 · The wording may be compared to the terminology of the more recent European Charter for Regional or Minority Languages ( 1992). Here, the term "regional" denotes languages spoken in a limited part of the territory of a state, even if they may be spoken by the majority of the citizens. Explanatory Report, Council of Europe, DELA 92(2), para. 18. See above chapter 8.5. 86 · G. Sacerdoti, New Developments in Group Consciousness and the International Protection of the Rights of Minorities, in Israel Yearbook on Human Rights, 1983, Vol. 13, pp. 116-146, at p. 141. 83 ·

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_ _ _ _ _ _ _ _ _ _ _ _C_h_a~p_te_r_9_-_Minority Protection in the OSCE

existence of a minority is an issue of fact and not of law. 87 Thornberry finds that these paragraphs are part of the political, "soft law", aspect of the Final Act. 88 As has been analysed earlier, it is maintained by many scholars that the Final Act as a whole is of a non-legally binding character. It is true, though, that there is a difference in the strength of the words used in Principle VII as compared to Basket III. In Principle VII states undertake that they "will respect the right ... to equality before the law, will afford them the full opportunity ... and will ... , protect ... ". In Basket III the participating states simply " .. .intend ... to facilitate". It is evident that the wording of Principle VII is stronger. What is also quite clear from the words used in Principle VII ("full opportunity" and "actual enjoyment"), is that this provision requires states to take positive action, concrete measures in order to protect minorities. In Principle VII this is much more evident than in Article 27 of the ICCPR ("shall not be denied the right. .. "). In this sense one may disagree with Ermacora, and argue that the CSCE Final Act provisions are more favourable towards minorities than Article 27 of the ICCPR. 89 That OSCE-provisions were more favourable and more concrete than the UN-provisions became evident, especially after the Copenhagen Document of June 1990, which made minority protection much more detailed. A term used in the Final Act and which causes confusion as regards minorities is the concept of "legitimate interest". Very little has been said and written on this term. Eddison notices this and assumes solely that the "legitimate interests" of persons belonging to national minorities differ "in some way" from those of persons not belonging to national minorities. 90 The term as such appears for the first time in the Greek counter-proposal to the original Capotorti Study, para. 570. See also Part IV, para. 32, of the Copenhagen Document (1990) which states that belonging to a national minority is a matter of a person's individual choice. 88. P. Thornberry, loc. cit., p. 249. 89 · F. Ermacora, Rights of Minorities and Self-Determination in the Framework of the CSCE, in A. Bloed and P. van Dijk (eds), The Human Dimension of the Helsinki Process, 1991, pp. 197-206. Ermacora writes: "Nevertheless, the relevant CSCE provisions do not compare favourably to Article 27 of the ICCPR. They have pragmatic objectives and do not allow the kinds of interpretations that are permitted under Article 27." (pp. 203-204). In my view this is too narrow a view of the OSCE-documents. Even taking into account that the Final Act is not regarded to be a treaty under the Vienna Convention on the Law of Treaties (1968), and accordingly one may not apply the methods of interpretation under Articles 31 and 32 of the Vienna Convention, the Final Act is a diplomatic agreement between states and as such is subject to the general principles of logical, and contextual interpretation. Even at the stage of deciding whether the document is a treaty or not we make an interpretation of the agreement. 90 · E. Eddison, loc. cit, p.3. 87 ·

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(;_hapt~r 9---: Minori_ry Pr()!_~~tion_in the_g~c_~

Yugoslav one. The Greek proposal stated: The Participating States respect the legitimate interests of people belonging to minorities already recognised by bilateral treaties or by internal legislation. 91

Yugoslavia wished to add the words "individual and collective" before the word "interests", but this reference to the collective element was totally unacceptable to France. 92 In the end, as we have seen, the final version places the term at the very end of the provision (" ... and will, in this manner, protect their legitimate interests in this sphere."). Thornberry has correctly pointed out that additional confusion is caused by the fact that in Principle VII we do not know whether "their legitimate interests" means the interests of the minorities as a whole or of the persons belonging to minorities. 93 In an interpretation of Principle VII together with the provisions in Basket III, as well as with the Greek proposal that initiated the introduction of the term, we may draw the conclusion that also in Principle VII the "legitimate interest" is that of persons belonging to minorities. As has already been explained the word "legitimate" should not be interpreted to mean "legal" or "legally recognised". Such an interpretation would limit too much the scope of the provisions. "Legitimate" in this case seems to mean rather proportional in relation to, and in accordance with, the obligations of the states under international law and their commitments under the OSCE documents.

9 L L. V. Ferraris, Joe. cit., p. 136. The Greek original proposal has not been pursued by Greece after that early stage. On the contrary, Turkey has declared through interpretative statements to the Copenhagen Document (1990, communication No. CSCE/CHDC/Inf.7, not registered in the Journal No. 18 of 28 June 1990) and to the Helsinki Decisions (Journal No. 50, 8 July 1992) that it recognises as "minorities" only groups defined in bilateral or multilateral treaties to which Turkey is a party. This comes into conflict with the principle that the existence of a minority is a question of fact, as well as with the principle of "self-identification". Cyprus replied (in Helsinki, 1992) to Turkey's interpretative statement by declaring that "The decisions of the CSCE Helsinki Meeting adopted by consensus today according to Rule 69 of the Rules of Procedure are equally binding on all participating States without exception or selectivity". 92 · Ferraris, Joe. cit., p. 138. Much later, in the Helsinki Decisions (1992), France made an interpretative statement referring to Article 2 of the French Constitution which guarantees equality (Journal No. 50, 8 July 1992). France stated:"[ ... ] France is an indivisible Republic and ensures the equality of all its citizens without distinction as to origin, race or religion. It is in this light that the French Government has interpreted article 27 of the United Nations International Covenant on Civil and Political Rights and that it will interpret the provisions of the final document concerning the High Commissioner on National Minorities". In other words France declares that the minority commitments, including those concerning the High Commissioner are of no relevance to France. Cf. above chapter 7.5.2.6. concerning the French declaration to Article 27 of the ICCPR. 93 · P. Thornberry, Joe. cit., p. 253.

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9.8.2. The Concluding Document of Madrid ( 1983)

The first follow-up meeting after Helsinki took place in Belgrade from October 1977 to March 1978. The diplomatic atmosphere at that time was extremely tense and the Cold War was at its peak. This is why the results of the Belgrade meeting were very poor, with no reference whatsoever either to human rights or minority protection. The second follow-up meeting took place in Madrid from November 1980 to September 1983.94 Most Western ministers and ministers from neutral states were in Madrid for the purpose of discussing the situation in Poland (martial law was declared in Poland in December 1981), and the Soviet interference, but the ministers from Eastern Europe refused to mention the issue. The negotiations were therefore deadlocked and on the whole the Madrid Document only reconfirms the Principles of the Helsinki Final Act. In spite of the rather awkward diplomatic situation the Madrid Document includes in the principles of the Chapter concerning "Questions relating to security in Europe", a short paragraph on national minorities: They [the panicipating States] stress also the importance of constant progress in ensuring the respect for and actual enjoyment of the rights of persons belonging to national minorities as well as protecting their legitimate interests as provided for in the Final Act.

There is no substantial addition to the provisions of the Final Act, but the wording has a positive character ("constant progress"), with continued insistence on the "actual enjoyment" of the rights. Taking into account the many loopholes, escape clauses and restrictions appearing in almost everything to do with human rights in the Madrid Document, the reaffirmation as such should be seen as a success. 95 In the Madrid Document the provision on minorities stands in conjunction with the paragraphs concerning religion: The panicipating States reaffirm that they will recognize, respect and furthermore agree to take the action necessary to ensure the freedom of the individual to profess and practise, alone or in community with others, religion or belief acting in accordance with the dictates of his own conscience. In this context, they will consult, whenever necessary, the religiousfaiths, institutions and organisations, which act within the constitutional framework of their 94 · The

most thorough account of the negotiations is given by J. Sizoo and R. T. Jurrjens, loc. cit. J. Sizoo was a permanent member of the Netherlands delegation to the CSCE meeting in Madrid. 95 · On the ambiguity of provisions in the Madrid Document see Sizoo, loc. cit., p. 180191.

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Chapter 9 - Minority Protection in the OSCE respective countries. They will favourably consider applications by religious communities of believers practising or prepared to practise their faith within the constitutional framework of their States, to be granted the status provided for in their respective countries for religious faiths, institutions and organizations.

Here we find a first indication of the obligation of the states to consult with religious organisations. This obligation is severely limited by the clauses "whenever necessary" and "within the constitutional framework" which give to the state a good deal of discretion.

9.8.3. The Concluding Document of Vienna ( 1989)

The first serious step in the development and concretisation of minority protection in the OSCE context was taken at the follow-up meeting in Vienna. 96 Among the "Principles" declared in the section on "Questions relating to security in Europe" we find the following: ( 18) The participating States will exert sustained efforts to implement the provisions of the Final Act and of the Madrid Concluding Document pertaining to national minorities. They will take all the necessary legislative, administrative, judicial and other measures and apply the relevqnt international instruments by which they may be bound, to ensure the protection of human rights and fundamental freedoms of persons belonging to national minorities within their territory. They will refrain from any discrimination against such persons and will contribute to the realization of their legitimate interests and aspirations in the field of human rights and fundamental freedoms. ( 19) They will protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of national minorities on their territory. They will respect the free exercise of rights by persons belonging to such minorities and ensure their full equality with others.

The section concerning co-operation in humanitarian and other fields of the Vienna Concluding Document also includes several crucial provisions on minority protection: Human Contacts

(31) They [the Participating States] will ensure that the status of persons belong-

ing to national minorities or regional cultures on their territories is equal to that of other citizens with regard to human contacts under the Final Act and the other aforementioned CSCE documents and that these persons can establish and maintain such contacts through travel and other means of communication, including contacts with citizens of other States with whom they share a common national 96 · The meeting lasted from November 1986 till January 1989 and the Concluding Document is dated 19 January 1989.

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Chapter 9 - Minority Protection in the OSCE origin or cultural heritage. Infonnation (45) They will ensure in practice that persons belonging to national minorities or regional cultures on their territories can disseminate, have access to, and exchange information in their mother tongue. Co-operation and exchanges in the field of culture (59) They will ensure that persons belonging to national minorities or regional cultures on their territories can maintain and develop their own culture in all its aspects, including language, literature and religion; and that they can preserve their cultural and historical monuments and objects. Co-operation and exchanges in the field of education (68) They will ensure that persons belonging to national minorities or regional cultures on their territories can give and receive instruction on their own culture, including instruction through parental transmission of language, religion and cultural identity to their children.

Heraclides describes vividly the bargaining on the collective element and in the end he finds the Vienna document to be "a considerable qualitative jump commitment-wise" as far as national minorities are concerned. 97 Pentikainen finds that the rights of persons belonging to national minorities as introduced in the Vienna document are "clear additions to the previous human rights commitments". 98 The Vienna Document includes several new concrete elements concerning minority protection. For the first time in the OSCE context the protection of the identity of national minorities is affirmed. As we have seen, until that moment strict equality for minorities was the point of departure. Buergenthal writes about the Vienna Document: "By taking this step, the participating States moved beyond non-discrimination and equal protection to minority protection". 99 The provisions of the Vienna Document remedy the gap in the Final Act provision which only provides for equality, but says little on the obligation of states to protect the identity of minorities. 100 It becomes in fact more specific than Article 27 in the ICCPR. The "ethnic, cultural, linguistic and religious identity of national minorities" must, according to the Vienna Document, be protected and promoted in 97 · A. Heraclides, The CSCE and Minorities ... , in Helsinki Monitor, 1992, Vol. 3, No. 3, pp. 5-18, atp. 8. 98 · M. Pentikiiinen, Joe. cit. , p.22. 99 · T. Buergenthal, The Copenhagen Meeting: A New Public Order for Europe, in HRLJ, 1990, Vol. 11, pp. 2J7-232, at p. 227. IOO. Thornberry has criticised the Final Act on this point, Joe. cit., 1991, p. 253.

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many different ways: - through contacts with persons, groups or states with which the minority has a common origin or heritage, - through free access and free dissemination of information, - through development of language and literature, inter alia by education in the own language, - through protection and preservation of cultural monuments and objects. The Vienna Document gives clear and specific guidelines to states on how to implement their commitments concerning national minorities. When discussing paragraph 68 (concerning instruction) there were many proposals forwarded. A proposal forwarded by Canada, Belgium, FRG, the Netherlands, the United States, Austria, Hungary, Norway and Sweden suggested the protection of "the unique identity of national and regional cultures", for example by "promoting in practice unhindered opportunities for them to give and receive, individually or collectively, instruction in their own culture ... ". Once more there was an effort to introduce the collective element in minority protection, but once more the proposal was rejected. 101 The protection of identity as enshrined in the Vienna Document was the final ending of the theory of assimilation of minorities (of the so-called "melting pot"-theory) within the OSCE. It is made evident in the Vienna Document that the participating states put

great emphasis on the actual implementation of the provisions of the Final Act as well as those of the subsequent OSCE documents. The participating states make clear in the document that they wished to have a continuation of the CSCE process through follow-ups and also - which is of paramount importance - through the creation of the mechanism for the implementation of the Human Dimension of the Conference. At this stage it was however not specified whether the human dimension mechanism could be used also concerning minority problems. The Vienna Document is silent on this point. 102

9. 8.4. The Document of the Copenhagen Meeting of the Conference on the Human Dimension ( 1990)

It has already been mentioned that the Vienna follow-up meeting planned three meetings of the Conference on the Human Dimension. The first meeting was held in Paris in May 1989, half a year after the ending of the Vienna Meeting. It has been rightly pointed out that one could not reasonably expect lOl. M. Tabory, loc. cit., at pp. 213-215. 102 · Turkey and Bulgaria made interpretative statements to the Vienna Document concerning the existence of a Turkish minority in Bulgaria. Turkey objected to future follow-up meetings being held in Bulgaria, while Bulgaria denied the existense of a Turkish minority. Journal No. 397, 15 January 1989.

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many new ideas and proposals to be produced in such a short period of time. 103 In addition, the Paris meeting was seen as only one of a series of meetings. The result of all this was that the Paris meeting did not produce a concluding document. A number of proposals were sent further to the Copenhagen meeting. The Copenhagen meeting took place in the euphoric atmosphere in Europe following the fall of the Berlin Wall and the end of the Cold War. As mentioned above the Copenhagen Document has been described as a "European constitution in statu nascendi ", 104 and it has been said that it reflects the transformation of Europe. 105 In the Copenhagen Document the issue of national minorities is dealt within a separate, quite extensive chapter. 106 Heraclides reveals that the most controversial issues during the negotiations were the following: a) the collective element, b) positive discrimination, c) self-definition of minorities (self-identification), c) "new" minorities (e.g. migrant workers), d) teaching of a minority language and use of it by public authorities, and e) the issue of autonomy or "autonomous administrations" .107 However controversial the subjects might have been during the discussion, in the end the Copenhagen Document was adopted according to normal procedures by consensus. 108 Chapter IV on national minorities consists of eleven paragraphs, of which several are divided into subparagraphs. One may distinguish a section (paragraphs 30-39) on issues directly concerning national minorities, and then a second section (paragraph 40 with seven subparagraphs) on the related issue of intolerance, including discrimination, anti-semitism, xenophobia, racial 103 · H. Hazewinkel, Paris, Copenhagen, and Moscow, in A. Bloed and P. van Dijk (eds.), The Human Dimension of the Helsinki Process, 1991, pp.128-142, at p. 129. See also J. Helgesen, Joe. cit., at p. 262. I04. A. Bloed, A New CSCE Human Rights 'Catalogue': A Critical Analysis, in Helsinki Monitor, 1990, Vol.I, No. 3, pp. 36-43, at p. 43. See also by the same author, Successful Meeting of the Conference on the Human Dimension of the CSCE, in Netherlands Quarterly of Human Rights, 1990, Vol. 8, No. 3, pp. 235-260. 105 · T. Buergenthal, The Copenhagen Meeting ... , Joe. cit., p. 218. l06. An account of negotiations in Copenhagen is given by A. Heraclides, Security and Cooperation in Europe ... , 1993, pp. 119-135. 107 · Id., pp. 123-125. 108 · For an amusing recollection of the Copenhagen meeting see the article: A month in the life of the European process, in The Economist of 14-20 July 1990 (anonymous author). Upon the adoption of the document Greece, Bulgaria and Turkey made interpretative statements on the chapter on minorities. The statement of Turkey referred to the whole chapter on national minorities and said that the concept of national minority only encompasses populations whose status is regulated by bilateral or multilateral international instruments. The Greek interpretative statement refers to "respect of the rights of others" as well as to territorial integrity, while Bulgaria made a rather ambiguous and confusing statement that participating states have to comply with international standards. Journal No. 18, 28 June 1990.

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and ethnic hatred and totalitarianism, with special mention of the Roma (gypsies). Paragraph 30 of the document is of central importance for the whole of the OSCE engagement in minority issues, since it places the question of minority protection in its proper context. It declares that minority questions can only be resolved in a democratic political framework based on the rule of law, with a functioning independent judiciary, with political pluralism, cultural diversity and active non-governmental organisations. It further declares that human rights, including rights of persons belonging to national minorities, are "an essential factor for peace, justice, stability and democracy". 109 The Copenhagen Document recognises, for the first time, three important factors for the protection of minorities: - In paragraph 32 it is stated that "[T]o belong to a national minority is a matter of a person's individual choice ... ". The recognition of the principle of self-identification of minorities made clear that the subjective element of the minority concept (how a person feels, perceives and defines him- or herself) is the crucial element. This recognition of the importance of self-identification confirms, again, that the state may not - through registration, statistics etc. - construe minorities in a way suitable for state policies. - In paragraph 31 the participating states make a commitment concerning the adoption of "special measures" for the purpose of ensuring to persons belonging to national minorities full equality. This wording was the result of a compromise, after a long discussion on positive discrimination. These words were chosen as a compromise as they have their origin in Article 2.2 of the International Convention on the Elimination of All Forms of Racial Discrimination (1965).11° Paragraph 31 should be read in conjunction with paragraph 33 which speaks of creating conditions for the promotion of the identity and adds that all measures should be in conformity with the principles of equality and non-discrimination "with respect to the other citizens of the participating State concerned". A correct interpretation of paragraphs 31 and 33 should always be made in the light of the International Convention on the Elimination of All Forms of Racial Discrimination which clearly permits positive discrimination for a limited period a time and in order to achieve real equality. - The participating states recognised as one of the possible means for the protection and promotion of the identity of minorities the establishment of "appropriate local or autonomous administrations". The wording was - once again - a compromise. It was the "Pentagonale" (Austria, Italy, Yugoslavia, 109 · This broad approach, which is characteristic of the OSCE work, is reflected also in the work of the HCNM. See below chapter 9.8.11. l IO. On positive discrimination and Article 2.2 of the International Convention on the Elimination of All Forms of Racial Discrimination see chapter 1.2.3. above.

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Czechoslovakia and Hungary) that came with the proposal which was then opposed by other delegations (Greece being the most determined). 111 However, in spite of the non-commital terms and the escape clauses ("appropriate"), this is the first international agreement at which the importance of solutions of autonomy is recognised. In the Copenhagen Document the right to an ethnic, cultural or religious identity is reaffirmed (as we have seen it was recognised as such already in the Vienna Document) and several of its aspects are expressly protected in the subparagraphs of paragraphs 32 and 35. New elements, as compared to the earlier CSCE documents, are the right of persons belonging to national minorities to use their mother tongue, not only in private but also in public; the right to receive financial or other contributions for the minority organisations and associations; the right to participate in international non-governmental organisations; the right to effective participation in public affairs. The Copenhagen Document includes also in the chapter on national minorities escape clauses and limitations. The most important limitation is paragraph 37: None of these commitments may be interpreted as implying any right to engage in any activity or perform any action in contravention of the purposes and principles of the Charter of the United Nations, other obligations under international law or the provisions of the Final Act, including the principle of territorial integrity of States.

In other words, secession through non-peaceful means is prohibited. These limitations of the Copenhagen Document do not alter the fact that this meeting produced for the first time an accepted list of detailed minority rights. The measure of the importance and comprehensiveness of the Copenhagen Document is well shown by Heraclides who notes that in the meetings on minorities after Copenhagen the delegations "had great difficulty coming up with something substantial to add" . 112

9.8.5. Through the Charter of Paris for a New Europe (1990) to the Geneva Meeting of Experts on National Minorities (1991)

The Heads of the participating states met in November 1990 in Paris at an "extra" summit meeting in order to commemorate the end of the Cold War and the end of an era of confrontation and distrust in Europe, and to give guidelines for European co-operation in the future. ll l.

112·

A. Heraclides, The CSCE and Minorities ... , Joe. cit., p.11. Id., p.12.

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The final document of that meeting was ambitiously named "The Charter of Paris for a New Europe", and it consists of three chapters; The first is called "A New Era of Democracy, Peace and Unity'', then comes a chapter on the guidelines for the future, and the last part concerns institutional aspects of the CSCE process. In the first chapter, the Heads of state or government reaffirmed that the ethnic, cultural, linguistic and religious identity of national minorities will be protected and that equality and non-discrimination will continue to be the point of departure in the treatment of persons belonging to minorities. In the Chapter on "Guidelines for the Future" the participating states further acknowledged that the rights of persons belonging to national minorities must be fully respected as part of universal human rights, and decided to convene a meeting of experts on national minorities in Geneva in July 1991. The Charter of Paris recognises the importance of minority protection as a principle for the future work within the CSCE process. No new rights, or aspects of rights, were substantially added, but the minority issue was placed higher in the CSCE agenda. As provided for in the Charter of Paris, an experts meeting was held in Geneva in July 1991. The name "experts meeting" is somewhat misleading since it might be assumed by the reader that this was a meeting of independent experts in their individual or academic capacity, and the document they produced was solely of an advisory character. This was not at all the case; the participants, some of whom were indeed academics, were there as representatives of the states. In the report of the meeting it is repeated more than once that "the representatives of the participating States" had a thorough discussion, that they considered the scope for the improvement of relevant standards and finally adopted the report. Another proof of the intergovernmental and diplomatic character of the meeting was also the fact that the meeting (both in the plenary and in the subsidiary working bodies) was not open to non-governmental organisations, just as all OSCE diplomatic negotiations are not open to such organisations.11 3 Finally, the document was negotiated and adopted by consensus in normal OSCE order and procedure, and several states made interpretative statements upon the adoption of the Report. 114 Accordingly, the Geneva Report should be considered to be a true 113 · See above, however, regarding the recent efforts for closer co-operation with NGOs in chapter 9.4. 114· Albania declared that the question of the Albanian population in Kosovo and Yugoslavia is not a question of "national minority" since this group is the third largest in Yugoslavia. Yugoslavia stated that "only peoples, and not national minorities, have the right to self-determination". Poland made an interpretative statement on behalf also of the delegations of Austria, the Czech and Slovak Federal Republic, Hungary, Norway, Sweden and Yugoslavia regarding the following sentence of the Report: " ... not all ethnic, -

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- - - - - - - -----

CSCE negotiated document which incorporates commitments accepted by the participating states. The document itself is evidence that the task of producing a new document on national minorities was a difficult one. We should not forget that in July 1991 the situation in Yugoslavia was already deteriorating and that the situation in the Soviet Union was explosive. This situation naturally left its mark on the debate in Geneva. The structure of the report is quite complicated. There are no headings and several issues are repeatedly included in many different paragraphs. It is quite obvious that the document is the result of difficult negotiations and bargaining. The Report cannot be considered "as a major qualitative step forward", it has though its merits. 115 The most valuable addition to the previous CSCE documents is the recognition of the importance of issues concerning rights of minorities as issues of "legitimate international concern" which "do not constitute exclusively an internal affair of the respective State". 116 This made it clear that states may not invoke the argument of "non-interference in the internal affairs" in order to avoid international control and criticism as regards minority protection. It was also a move towards seeing minority protection as a field where the human dimension mechanism of the Vienna Concluding Document could be applied. As a first step in this direction we find already in the Geneva Report a recommendation to states to "consider favourably" and "to the extent permitted by law" the presence of observers at elections held below the national level, including those held in areas inhabited by national minorities. 117 In the last section of the Geneva Report the participating states "note that the appropriate CSCE mechanisms may be of relevance in addressing questions relating to national minorities" and they recommend that the Moscow meeting on the Human Dimension (which was scheduled for September 1991) expand the mechanism of the Human Dimension. 118 Some other features and innovations of the Geneva Report should also be mentioned as they improve and clarify the standards set in Copenhagen: - It is spelled out that, in order to achieve effective participation in public affairs, national minorities should be involved and should participate when

cultural, linguistic or religious differences necessarily lead to the creation of national minorities''. The statement notes that this sentence "may not limit the right of the individual to choose to belong or not to belong to a national minority" according to paragraph 32 of the Copenhagen Document. Journal No. 15, 19 July 1991. 115 · A. Heraclides, The CSCE and Minorities ... , at p.15, and M. Pentikainen, Joe.cit., p. 26. 116· Section II of the Geneva Report. 117· Section III of the Geneva Report . 118 · Section VIII of the Geneva Report.

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issues relating to the situation of national minorities are discussed within their countries; - Provisions on non-discrimination and measures to combat it are much more thorough. Discrimination of members of national minorities is expressly prohibited in respect of employment, housing and education, and it is stated that no one belonging to a national minority will be subject to penal or administrative sanctions for having contacts within or outside his (or her) own country simply by virtue of belonging to such a minority. The spirit of this provision is that communications and exchange of information between minorities and members of minorities, regardless of frontiers, are necessary for the preservation and promotion of the minority identity, and thus, should be permitted by the states, and that restrictions should always be prescribed by law and be consistent with international standards. - The Geneva Report includes a list of non-exhaustive examples of ways to handle minority issues (this is the so called "Geneva shopping list"). This list includes advisory and decision-making bodies in which minorities are represented, autonomous local administrations, decentralisation, permanent mixed commissions at the inter-state or regional level.

9.8.6. The Cracow Symposium on Cultural Heritage (1991)

A document which has been widely neglected in the discourse concerning minority protection is the Document of the Cracow Symposium on the Cultural Heritage. In spite of the title of the meeting ("Symposium"), in reality it was not simply an academic forum but a proper inter-governmental negotiation. This is confirmed by the wording of the document in which the operative part starts with the words "the Participating States agree ... ". Representatives of the participating states met in Cracow from 28 May to 7 June 1991 and reaffirmed their belief that "respect for cultural diversity promotes understanding and tolerance among individuals and groups". It may be recalled that the third basket of the Helsinki Final Act included a section on "co-operation and exchanges in the field of culture". In 1975 the main issue was cultural co-operation between participating states. 119 In Cracow, it was from the outset clear that the Symposium did not only deal with state or majority cultures. The preamble declares: Regional cultural diversity is an expression of the richness of the common cultural identity of the participating States. Its preservation and protection contribute to building a democratic, peaceful and united Europe.

Why then is this Symposium of importance for minorities? First of all, the participating states explicitly recognised the "intrinsic value of the cultural 119· As already mentioned, the section on culture in the Helsinki Final Act ends with a provision on "national minorities or regional cultures". See above chapter 9.8.1.

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heritage". 120 At a time of great political unrest in large areas of Europe this was an important step. The participating states also recognised "as vital elements of their common cultural heritage, the heritage of those cultures which because of language barriers, climate and geographical distance, limited population or turns of history and political circumstances, have not been widely accessible". 121 Thus, minority cultures should be actively supported.122 The Cracow Document placed cultural issues again on the CSCEagenda and confirmed the original elements of the Helsinki Final Act. As examples of concrete measures the participating states declared that the "preservation, enhancement and restoration of the cultural heritage" must be taken into consideration when drawing up cultural, environmental and regional and urban planning policies. 123 Of special importance in order to achieve the effective participation of minorities is paragraph 18, which states: Partnerships among diverse groups at the local, regional and national level, from both the private and the public sector, are valuable for ensuring the effective and representative preservation of the cultural heritage. The preservation and interpretation of the values and the cultural heritage of diverse groups will be enhanced with the involvement of those groups, which is conducive to the tolerance and respect for different cultures which are of paramount importance.

A weakness of the document is that it does not specifically name "minority cultures". There is, however, mention of "indigenous and vernacular" cultures, and, as already indicated, of cultures which are "not widely accessible" .124 In this way, the Cracow Document came as a continuation and elaboration of the Copenhagen Document in the field of culture, especially regarding the protection of cultural heritage.

9.8.7. The Moscow Meeting of the Conference on the Human Dimension ( 1991)

The third meeting of the Conference on the Human Dimension was held in Moscow on 10 September - 4 October 1991. The meeting was held just two months after the Geneva meeting on national minorities, so it was expected by most commentators that it would not be possible to achieve any new substantial provisions. 125 The most important subject of the meeting was the

Paragraph 33 of the Cracow Document. Id., at paragraph 13. 122· See paragraph 4 on the need to strike balance between acting in support of, and ensuring freedom of, cultural activity. 123 · Paragraph 15. 124· Paragraphs 28 and 13 of the Cracow Document. 125 · A. Bloed, Moscow Meeting of the Conference on the Human Dimension of the CSCE: A Critical Analysis, in Helsinki Monitor, 1992, Vol. 3, No. l, pp. 4-16. 120· 12 1.

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supervisory mechanism of the human dimension. There were, however, several proposals on national minorities concerning regular reviews of implementation of minority provisions, the rights of minorities, peaceful solutions to problems of national minorities, indigenous peoples and the rights of the Roma. 126 Paragraph 37 of the Document of the Moscow Meeting confirmed that the human dimension mechanism could be applied to minority problems. Bloed is of the opinion that such a clause was not necessary, as questions concerning minorities have always been considered as falling within the scope of the human dimension, so that no one would argue that the mechanism may not be applied. 127 As we have seen in the CSCE documents analysed above, provisions concerning national minorities appear not only in the sections concerning strictly the human dimension, but also in parts of the documents concerning security as well as culture. Therefore, it is, in my view, a welcome development that the participating states explicitly accepted the use of the human dimension mechanism for problems concerning national minorities.128

9.8.8. The Prague Meeting of the CSCE Council ( 1992)

In January 1992 the CSCE Council (the Council of Ministers) met in Prague in order to discuss, primarily, institutional aspects of the CSCE as well as conflict prevention. The Prague Document on Further Development of CSCE Institutions and Structures does not make any specific reference to minority issues, but in the "Summary of Conclusions" the Ministers give guidelines to the representatives to the Helsinki Follow-up Meeting (which was scheduled also for 1992), and we find, inter alia, that the representatives should be guided by: - the objective of the CSCE to prevent conflict and consolidate peace through eliminating the root causes of tensions, by attaining in particular full respect for human rights, including those inscribed in the CSCE provisions on national minorities; - the need to strengthen the capacity of the CSCE to contribute, in accorHeraclides, The CSCE and Minorities .. ., loc. cit., p. 15. Bloed, Moscow Meeting .. ., loc.cit., p.11. 128· This was the only provision on national minorities in the Moscow Document. In spite of its limited character Belgium and Hungary made interpretative statements on this paragraph. Belgium made an obscure statement that the provision should be seen as falling "exclusively within the field of human rights'', and Hungary made an interpretative statement which is actually widening the scope of the provision by having a list of suggested rights on language, consultation, self-government and even with mention of self-determination. Journal No. 18, 3 October 1991. 126· A. 127 · A.

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dance with CSCE principles, to a peaceful solution of problems involving national minorities which could lead to tensions and conflict - both within and between states - including by making "early warning" possible. 129 What is interesting here is that the Council retains the original link between the baskets, and emphasises the link between protection of national minorities and security issues ("conflict prevention"). In Prague it became clear that, for the CSCE, protection of minorities is not ensured only because of the value of human dignity or because of the importance put by states on the cultural identity of the minorities and the enrichment of the culture of the states where the minorities live, but also for another reason: the basis of the protection is of a preventive character, and minority protection is guaranteed in order to avoid future conflicts. This twist towards conflict prevention and early warning was reaffirmed in the document of the follow-up meeting in Helsinki in spring 1992.

9.8.9. Helsinki-II: The Challenges of Change (1992)

Most commentators have acknowledged that the human dimension had had its "heyday" at the time the Helsinki follow-up meeting (from now on called Helsinki-II) convened in the spring of 1992. 130 Another important feature of the Helsinki-II is that the optimism of The Charter of Paris could not remain intact while the situation in Yugoslavia and in parts of the former USSR was extremely grave. The Heads of participating states declare in the Helsinki Summit Declaration: We are faced with challenges and opportunities, but also with serious difficulties and disappointments.

The Helsinki-II final document is entitled The Challenges of Change. It consists of two parts: a) an introduction which has the character of a political declaration and is called "Helsinki Summit Declaration'', and b) the main part called "Helsinki Decisions". The Helsinki Decisions include inter alia chapters concerning the strengthening of institutions and structures; the High Commissioner on National Minorities; early warning, conflict prevention, crisis management and peaceful settlement of disputes and the human dimension. Already in the first part of the Helsinki Summit Declaration, and under the 129 · This

anticipated the creation of the High Commissioner on National Minorities. BO. A. Heraclides, Helsinki-II and the Human Dimension: Normative Commitments, the End of an Era?, in Helsinki Monitor, 1992, Vol. 3, No. 4, pp. 65-76 and A. Bloed, Helsinki-2 Concluded: Progress Towards a "New" CSCE, in Netherlands Quarterly of Human Rights, 1992, Vol. 10, No. 3, pp. 336-346.

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heading "Promises and Problems of Change" we find the following paragraph (para. 6): Respect for human rights and fundamental freedoms, including the rights of persons belonging to national minorities, democracy, the rule of law, economic liberty, social justice and environmental responsibility are our common aims. They are immutable.

Furthermore, in paragraph 12, the link between human rights, including rights of national minorities, and threats to peace and security is again reaffirmed and this is also implied in paragraph 21, where one finds a statement on the CSCE "comprehensive concept of security" as it exists in the Final Act. This comprehensive concept of security links the maintenance of peace with respect for human rights and fundamental freedoms, and also with minority protection. 131 In the chapter on the "Human Dimension" most of the provisions reaffirm commitments existing in earlier CSCE documents. In addition, the participating states accept a commitment to refrain from resettling and they condemn all attempts, by the threat or use of force, to resettle persons with the aim of changing the ethnic composition of areas within their territories (paragrapl) 27). Paragraph 29 on indigenous populations is extremely vague and obscure, saying simply that persons belonging to indigenous populations face special problems in the exercise of their rights and that CSCE human rights commitments apply, fully and without discrimination, also to such persons. One notices immediately that the text uses the word "populations" and not "peoples", even though the /LO-Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries was adopted already in 1989. Strangely enough (taking into consideration the earlier success on minority issues) the issue of indigenous peoples was one of the most difficult ones in the working group on the Human Dimension. Heraclides gives an account of the resistance of the United States and the United Kingdom against a proposal on a provision on indigenous populations, and this seems to be the reason for having such a meaningless provision among the Helsinki Decisions. 132

l31. On the concept of "security" in the UN Charter and the OSCE see above chapter 4.1. Heraclides, Helsinki-II..., 1992, p. 74. Heraclides participated in the Greek delegation in the working group which dealt with the human dimension at the Helsinki-II meeting. 132· A.

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9.8.10. The Mandate of the High Commissioner on National Minorities

The most important part of the Helsinki Decisions as regards minorities is undoubtedly the establishment of the High Commissioner on National Minorities (HCNM). 133 In the Chapter concerning the strengthening of CSCE institutions and structures we find paragraph 23: The Council will appoint a High Commissioner on National Minorities. The High Commissioner provides 'early warning' and, as appropriate, 'early action' at the earliest possible stage in regard to tensions involving national minority issues that have the potential to develop into a conflict within the CSCE area, affecting peace, stability, or relations between participating States. The High Commissioner will draw upon the facilities of the Office for Democratic Institutions and Human Rights in Warsaw.

It is evident that the High Commissioner's primary tool is preventive diplo-

macy, and the method of work requires an involvement as early as possible, and in any case long before the minority problem has turned into a violent armed conflict. It should be, from the very beginning, stressed that the participating states do not envisage the HCNM as an ombudsman for minorities.134 The role of the HCNM is that of an "objective facilitator".

In December 1992, at the CSCE Council Meeting in Stockholm, the Council of Ministers appointed Max van der Stoel to the post of HCNM, and he took office on 1 January 1993. The mandate and method of work of the HCNM are regulated in a special chapter of the Helsinki Decisions (Chapter II: CSCE High Commissioner on National Minorities). The HCNM will act in regard to tensions involving national minority issues "which have not yet developed beyond an early warning stage" (paragraph 3). This rather vague clause gives the HCNM a wide discretion but it excludes his involvement after the use of force in a conflict since his aim is a de-escalation of tensions.135 This explains why the HCNM has, in principle, no competence to deal with the situation in former Yugoslavia; he has, however, visited the 133 · For a general introduction to the mandate and to the problems of the HCNM see H. Zaal, The CSCE High Commissioner on National Minorities, in Helsinki Monitor, 1992, Vol.3 No. 4, pp.33-37 and R. Zaagman, The Role of the High Commissioner on National Minorities in OSCE Conflict Prevention, A report prepared by the Office of the HCNM, 1995. For a bibliography on the HCNM see Bibliography on the OSCE High Commissioner on National Minorities, Compiled by the Foundation on Inter-Ethnic Relations, 1995. 134· In his speech at the conference on "MINORITIES, HUMAN RIGHTS AND THE CSCE PROCESS" (Stockholm in December 1992), Lars-Erik Lundin, Assistant Under-Secretary at the Swedish Ministry for Foreign Affairs, emphasised repeatedly that we have here a High Commissioner on - and not for- minorities. 135 · A. Bloed, The CSCE and the Protection of National Minorities, paper presented at the CSCE Seminar "Case studies on national minorities issues: positive results", Warsaw, May 1993.

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Former Yugoslav Republic of Macedonia and more recently Croatia. 136 The HCNM sends his confidential report to the Chairman-in-Office. It has, however, become practice that he informs the Permanent Council at regular intervals and also sends to the Permanent Council the recommendations to states. 137 At OSCE implementation meetings on the Human Dimension the HCNM may present summary information on his activities "with due regard to the requirement of confidentiality" (paragraph 22). The requirement of confidentiality regarding the work of the HCNM is strict. It covers not only the recommendations to states (including fact-finding, problem-description and suggestions) but any information on HCNM-activities in a specific situation. Even though it is not expressly stated in the Helsinki Decisions, reports, correspondence and recommendations may be made public only with the consent of both parties involved. The Chairman-in-Office is consulted prior to trips made by the HCNM (paragraph 17). Even though the HCNM has achieved an increasingly independent status, it is important that there is good co-operation and mutual trust between the HCNM and the Chairman-in-Office; their common understanding of a situation under consideration is a prerequisite for the good functioning of the mechanism. It is equally essential that the state having the chairmanship supports and regards as important the efforts of the HCNM. 138 The HCNM may decide to issue an early warning if he concludes that there is a "prima facie risk of potential conflict" (paragraphs 13-15) and eventually initiates "early action" (paragraph 16) in order to have further contact and consultation with the parties concerned. In this case the Permanent Council takes the final decision. It has been correctly pointed out that an issue of early warning would reflect the failure of the involvement of the HCNM. 139 There is also a risk that issuing an early warning could cause an escalation of the tensions and have a counter-productive effect. So far the HCNM has not issued such a warning. The Helsinki-II Document does not define the terms "early warning" and "early action". The HCNM, together with the Chairman-in-office and the Permanent Council, have the competence to decide on the specific actions required in each different case. This gives to the mechanism a large degree 136 · Recommendations to FYROM, November 1994 (Ref. No. 3016/94/L) and April 1995 (Ref. No. 448/95/L) and to Croatia, February 1996 (Ref. No. 406/96/L) 137 · The Permanent Council decides whether to make the recommendations public or not. This has developed through practice. 138· This was strongly emphasised by the HCNM at his speach at the Fifth Annual Session of the OSCE Parliamentary Assembly in Stockholm (5 July 1996). 139· A. Bloed, The CSCE and the Protection ... , 1993, p. 3.

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