Mock Exam 4 November 2008:
JUR 5710: International Human rights Law: Institutions and
Procedures
Question 1:
The treaty bodies created for monitoring State
compliance with human rights treaties have different
means for supervising State practice. Describe, analyse
and comment upon the different means and give your
opinion on their effectiveness
1.1 INTRODUCTION
By ´treaty bodies` I understand implementation and
enforcement mechanisms applied by the United Nations
(hereinafter UN) in furtherance of its obligation to
promote and preserve human rights. There are seven
Committees, created by the principal human rights
treaties, to monitor the implementation and enforcement
of the UN treaties. They are non-judicial bodies with
competency to receive complaints from States and/or
individuals alleging violations of human rights. These
treaty-monitoring bodies are referred to as´ conventional
mechanisms´: with exception of the Human Rights
Committee, their power is derived directly from the
convention in question.
-the Human Rights Committee (hereinafter HRC)
-the Committee on Economic, Social and Cultural Rights
(hereinafter CESCR)
-the Committee against torture (hereinafter CAT)
-the Committee on the Elimination of Racial
Discrimination (hereinafter CERD)
-the Committee on the Elimination of Discrimination
against Women (hereinafter CEDAW)
-the Committee on the Rights of the Child (hereinafter
CRC)
-the Committee on the Protection of the Right of All
Migrant Workers and Members of their Families
These Committees work with the Economic and Social
Council (hereinafter ECOSOC) and the General
Assembly (hereinafter GA) of the UNs, report to the
ECOSOC and thence to the General Assembly.
1.1.1
Treaty Body Means
The types of means the different Committees operates
with, are slightly different, but the most common are:
periodic reports from State Members, inter-State
petitions, individual petitions, investigations and General
Comments. There is interference and cooperation
between the different treaty monitoring bodies to a wide
extent. The different Committees can study each other’s
reports and observations.
With regard to petitions or complaints, the full details for
admissibility will be found in the rules of procedure for
the Committee in question. In general, once a complaint
is found admissible, the State against whom the
complaint is made will be asked to submit its
observations in response. The Committee will then
consider the complaint and the observations, possibly in
dialogue with the State(s) concerned. After consideration
of the merits, a report will be issued containing the
conclusions and opinion of the Committee.
In the following, the different means for supervising State
practice belonging to each Committee will be briefly
examined. Thereinafter, the effectiveness of the main
means will be discussed.
-the Human Rights Committee/HRC: Consists of
eighteen members (Art. 28(2) of the ICCPR) who meets
thrice a year. The HRC has compentency to receive
periodic reports, to receive inter State complaints (Art.
41) and, under the first Optional Protocol, to receive
individual petitions. It remains disputed whether the
Human Rights Committee's in principle non-binding final
views (´Concluding Observations´) qualify as decisions
of a quasi-judicial body or simply constitute authoritative
interpretations on the merits of the cases brought before
them for the members of the Optional Protocol of the
Covenant on Civil and Political Rights.
Contracting parties are bound to submit periodic reports
on the measures they have adopted to give effect to the
Covenant when requested to do so by the Committee
(Art. 40(1)). Initial reports should be submitted within a
year of entry into force of the Covenant for the State in
point. Over the years, the Committee has adopted a large
number of so-called General Comments. General
Comments are addressed to State Parties in general and
are designed to provide guidance to them in discharging
their reporting obligations under the Covenant.
-the Committee on Economic, Social and Cultural
Rights/CESC: Eighteen members (elected by ECOSOC)
who meet twice a year. Initial reports are submitted
within one year of the entry into force of the Covenant for
the State concerned. Cross references to information
submitted to other UN bodies are acceptable. Reports are
also filed by specialized agencies with competence in
relevant matters. Provision is made for the Committee to
visit States for in situ investigations and information
gathering. The preparation of an Optional Protocol to the
Covenant which will enable the Committee to receive
individual complaints is ongoing.
-the Committee Against Torture/CAT: consist of ten
members who meet twice a year. States Parties must
deliver their initial report within 1 year after entry into
force and thereafter every forth year. Inter-State
complaints may be raised before the committee if both
States concerned have recognized the competence of the
Committee in this respect under Article 21. Individual
complaints may also be raised before the Committee
against States which have agreed to the procedure
articulated in Article 22. Investigatory powers of the
Committee are enshrined in Article 20.
-the Committee on the Elimination of Racial
Discrimination/CERD: Eighteen members meeting
twice a year. Contracting parties deliver periodic reports
every two years. The reports are being presented by a
representative from the State in question, who also
answer questions from the experts. The Convention also
provides for compulsory inter-State complaints procedure
by which States may arise issues relating to the
compliance of other States with the Convention. The
optional individual complaint process forms an integral
part of the Convention as it is enshrined in Article 14 of
the Convention. As a provision to secure the fulfilment of
the UN’s objectives in respect of decolonization, CERD
also gives opinions and makes recommendations on
individual and group petitions from, as well as receive
reports from non-self-governing and trust territories
(mandatory system).
-the Committee on the Elimination of Discrimination
Against Women/CEDAW: 23 members who meet for
approx. eight working days (no more than 2 weeks) a
year. State Parties to the Convention agree to submit
periodic reports every four years on the ´legislative,
judicial, administrative or other measures which they
have adopted´ to give effect to the convention (Art.
18).The Convention also provides that the Committee can
make general recommendations and suggestions (Art.
21). An Optional Protocol to the Convention adopted in
1999 provides for individual complaints, but cannot take
action. The complaints are being used as information
material. This information may help shape future policies.
As with the Committee against Torture, the Committee
will operate with the State Party in investigating the
matter.
-the Committee on the Rights of the Child/CRC;
States Parties undertake to submit reports every five years
to the Committee (Art. 44). Unlike other reporting
systems, the Committee on the Rights of the Child
requires that governments publish the reports within their
jurisdiction and disseminate the observations of the
Committee. The approach taken by the Committee is one
of consolidation – the Committee views itself as working
alongside developing internal State systems for
monitoring and realizing children’s rights. The
Committee is effectively applying the full myriad of
international human rights. Assuming reports are
submitted timeously, taking the reports in conjunction
with the additional information on each State obtained in
pre-sessional meetings from NGOs and specialized
agencies allows the Committee to build up what should
be a full and accurate picture of the human rights
situation in almost every Member State of the UN. Two
parallel chambers with nine members in each which meet
three weeks three times a year (one week pre-sessional
working groups) as an ´exceptional and temporary
measure due to heavy back load´. The most widely
accepted of all UN treaties.
-the Committee on the Protection of the Right of All
Migrant Workers and Members of their Families: Ten
expert members (Art. 72) (rising to thirty should fortyone States ratify). The first meeting was held in March
2004. States should submit reports every five years (Art.
73). An optional system of inter-State complaints and
individual communications is envisaged in Arts. 76 and
77, but awaits the necessary declarations.
1.2
EFFECTIVENESS
1.2.1
Conclusions/opinions/General Comments
As long as the conclusions or opinions of the different
Committees deliver are not legally binding, they do not
have the same effect as a court decision. If the States can
chose whether to comply with them or not and the only
consequence of not complying is bad reputation, it might
not be followed in practice. Many states will let other
factors, e.g. financial - , decide whether to change the
situation or not. This is definitely undermining the human
rights system and weakening its effects.
On the other hand, many states are much more reluctant
to sign and ratify the treaties/optional protocols in
question if the conclusions are legally binding. Thus, a
system, based on the good-will of the Member States, to
some extent, may be more effective than one with legally
binding decisions.
The ´jurisprudence´ of the different Committees (their
interpretation of the obligations of the States under the
respective treaties) contributes to a uniform interpretation
amongst the State Members. This is an important aspect,
which clearly make the system more effective. The same
applies for the General Comments.
1.2.2 Reports
The main problem concerning the efficiency of reports a
means, is that they, to a wide extent, are overdue.
According to Petter F. Wille (Ambassador, Permanent
Mission of Norway to the Council of Europe),
some States do not even submit initial reports. In this
regard, the reporting system is not very effective. Another
side of this is that if all States did follow the procedures
punctually, the consequence would be heavy back loads,
as the monitoring bodies often do not have sufficient
capacity to handle all of them (ref. P. Wille). One
measure which can be used to make States Members
submit their reports in timely manner (or to benefit on the
situation if they do not), is the report procedures adopted
by the ESCR: When problems with overdue reports are
experienced, it is the habit of the Committee, after due
notice to the State Party concerned, to consider the
economic, social and cultural rights in the State on the
basis of all the information available to them. This is
inevitably a good opportunity for NGOs to form debate.
The practice of considering human rights in any given
State in the absence of an overdue report is gaining
ground in international and regional organizations. Some
states will attend sessions to defend against any
circumstantial or uncorroborated evidence on their human
rights situation. This allows the Committee to obtain a
more balanced viewpoint.
When reports are being published within the State; as is
required for reports to the Committee on the Rights of the
Child, the system becomes transparent. Transparency in
this regard, will most likely stimulate the State Members
to work hard for compliance with the Convention. It may
also create ´synergy effects´; since transparency makes
the State population more aware of children’s rights and
in that way may enhance the interest for children’s rights.
An increasing interest and awareness may result in a
demand for higher compliance and, eventually, also
consensus on this.
In order to assist States in realizing the goals specified in
the treaties, the monitoring bodies may bring to the
attention of other organs of the UN, subsidiary organs
and specialized agencies concerned with furnishing
technical assistance any matters arising out of the reports
This enables such bodies to decide on the advisability of
international measures which may contribute towards the
effective progressive implementation of the Covenant
(see e.g. Art. 22 of the ICESR). Cross references to
information submitted to other UN bodies contributes to
transparency and cooperation; which again contributes to
efficiency.
1.2.3
Efficiency of other means
Whilst some of the Committees function rather
ineffectively, others function almost ideally. The best
functioning Committee seems to be the CRC. Knowing
this, maybe it would be worth considering implementing
some of the CRC’s working methods in other
Committees? The ´comprehensive approach´ adopted by
the Committee on the Rights of the Child is to be
encouraged according to para. 89 of the Vienna
Declaration and Programme of Action. It is not difficult
to imagine that States receiving this kind of ´personal
service´ will be inspired to, as well as feel obliged to,
strive for a much higher degree of compliance with the
Convention than if they did not receive such. Moreover, it
is undoubtedly much easier for the States to develop
internal State systems to monitor and realize human
rights if they are supported in this way.
Furthermore, it is evident that a Committee which
consists of only a few members who meet no more than a
week or so a year must have very limited resources to
deal with the reports and petitions they receive. This may
also create heavy back loads of cases. Taken the nature of
the cases, it should be an aim in itself to achieve
expeditious, though thorough, processes regarding case
handling in all Committees. This is inevitably dependent
on increased resources, but it is possible that much could
be done only by changing some of the established
processes. Two parallel chambers do, for instance, handle
twice as many cases as one. With this in mind, it remains
to hope that the CRC will continue to work with a twochamber system not only for a limited time, and that it
will also be investigated what could be done in other
Committees; in order to obtain a higher degree of
efficacy.
Diplomatic´ statements made by the Committees in
reports as well as in conclusions, to point out areas of
concern without offending the State Members may also
be frustrating. One could definitely wish for some more
´back bone´ from the Committees’ sides from time to
time. On the other hand, knowing that strong comments
or requirements may result in reservations, as well as
withdrawals by the State Members (ref. case against
Trinidad regarding death penalty; which finally caused
Trinidad’s withdrawal from the Convention),
´Diplomatic´ statements may, hence, be preferable.
1.3 CONCLUSION
As Rhona Smith put it: There are inevitably limitations to
the jurisdiction of the Committees and the jurisprudence
produced by them is incomparable to that of regional
human rights courts such as the European Court of
Human Rights. Nevertheless, the importance of the
Committees should not be underestimated.
To use a cliché: ´Everything is better than nothing´.
At the very least we are moving in the right direction.
Question 2:
The protection of the rights of minorities and their
members has a long history in international law.
Describe, analyze and comment upon the development of
the protection of minorities within universal and regional
systems. Take into consideration both institutional and
substantive elements of these developments.
2.1 INTRODUCTION/DEFINITIONS
Minority rights provide groups of individuals who are a
minority in a State with certain rights enforceable against
the State exercising power over them.
Special rights for minority groups can be defined as the
requirement to ensure suitable means, including
differential treatment for the preservation of minority
characteristics and traditions which distinguish them
from the majority of the population.
One of the main problems associated with minority
protection under international human rights law, has been
the lack of a universally accepted definition of what
constitutes a minority. Similar problems have been
experienced in defining the ´peoples´ to whom the right
to Self-determination (Art. 27 in ICCPR) ascribes.
The special Rapporteur on Prevention of Discrimination
and Protection of Minorities, F. Capoporti’s definition in
application of Article 27 ICCPR (1979):
´A group numerically inferior to the rest of the population
of a State, in a non-dominnat position, whose members –
being nationals of the State – posses ethnic, religious or
linguistic characteristics differing from the rest of the
population and show, if only implicitly, a sense of
solidarity directed towards preserving their culture,
traditions, religion or language´.
The basis for legal protection of the rights of persons
belonging to ethnic, national, religious and linguistic
minorities can be divided into four justifications:
-International human rights law
-international criminal law
-maintenance of peace and stability
-the protection of world cultural heritage
Indigenous peoples are one type of minorities, but not all
minorities are indigenous. Nor does it exist any generally
accepted definition for ´indigenous´. There a subjective,
as well as objective elements which need to be taken into
consideration. Self-identification as indigenous is a
fundamental criterion. Supplementing objective criteria,
such as history, relation to land, currently
marginalization, etc. are other elements which come into
play.
Developments, especially with regard to the question of
self-determination, demonstrate that clear cuts
distinctions between the three categories (Peoples,
minorities, indigenous peoples) are not possible. In most
cases practice allows us to identify the type of group, but
political interests have prevailed in maintaining grey
areas between the different categories. As it implies
numerous obligations, States are, in general, reluctant to
characterize groups within their jurisdiction as
´minorities´ or ´peoples´.
Provisions for minority rights can be found in a number
of universal instruments:
-Art. 15 ICESCR
-Art. 13 (c) CEDAW – Art. 5 (e) ICERD
-Art. 31 CRC
-UNESCO Convention for the Protection of the
Diversity of Cultural Expressions (2005)
-UNESCO Convention on the protection of the
Diversity of Cultural Expressions (2005)
-Art. 27 ICCPR
-Art. 30 CRC
-ILO Convention concerning Indigenous and Tribal
peoples in Independent Countries (1989)
-Art. 27 UDHR
-UN Declaration of the Rights of Indigenous Peoples
(2007)
(The list is not exhaustive.) The most essential of these
provisions will be investigated in the following.
However, first a brief overview of the history of minority
rights will be given.
2.2 HISTORY
There are two principal schools of thought on minority
treatment: assimilation and recognition (or fusion). The
former entails the integration of minority groups into the
life and the culture of the majority of the population,
whilst the latter entails the recognition and promotion of
minority groups. The history of minority protection can in
many ways be seen as a path from the former to the latter.
2.2.2
Pre World War I
Minority rights have a long history. The idea of a specific
body of law to protect minorities found favour in
nineteenth century Europe, home to a large number of
ethnic, religious and linguistic groups. Minority
protection before the two Great World Wars may be
linked to the contemporaneous rise of nationalism.
Individuals began to appreciate the uniqueness of their
national, cultural and social identity. Accordingly,
national groups developed individual concepts of
nationality based on their unique traits. However, through
time, these identifying characteristics formed the basis of
distinction between ethnic groupings in the State. These
groups which possessed different characteristics from the
majority of the population came to be regarded as
´minorities´ and were, in general, proud of their
distinctive cultural heritage. Attempts by States to impose
an artificial uniform nationality upon all groups
(irrespective of their cultural and ethnic origins) in a
territory, proved ultimately unsuccessful. Nationalism
became a major factor in European politics escalating the
deterioration of the national order, which culminated in
the outbreak of the First World War.
2.2.3
Inter-war situation/the League of Nations
Redrawing of the political map in Europe after the First
World War initiated a new era for minority rights. In the
main, the object was political, not humanitarian. The
main object for minority protection in the peace treaties
was to avoid the many inter-State frictions that had
occurred as a result of the frequent ill treatment of
national minorities. The rationale was sound: national
minorities could not disturb international peace and
security if their national problems were resolvable in an
established international forum (the League of Nations)
and thus neighbouring states did not require to resort to
covert or open hostilities in defence of a minority group.
The League of Nations played an important role in
developing an international system for the protection of
minorities. Protection of minorities was stipulated as a
precondition for membership in the League itself.
However, the subject was not regulated by the Covenant
of the League of Nations (1920). Instead, the League
derived its powers in this field from a series of treaties
concluded after World War I.
The first treaty to establish this protective regime was the
Treaty between the Principle Allied and Associated
Powers and Poland, signed at Versailles on June 29,
1919. It served as a model for the other treaties. The
League of Nations agreed to serve as guarantor of the
obligations the parties assumed in these treaties. It
exercised that function by developing a system for
dealing with petitions by minorities charging violations of
their rights. Protection of minority groups under the
auspices of the League of Nations – was twofold:
guarantees embodied in mandates/trust territory treaties
and guarantees imposed on States in the peace Treaties.
In entrusting the League with the protection of minorities
in the new Europe, a special clause was inserted in the
Peace Treaties. Such clauses were the basis of the
minority system in the League of Nations and the
foundation of the subsequent special minority protection
treaties drawn up at the Peace conference later. The
special minority chapters in these Peace treaties contained
what became known as the ´guarantee clause´. In each
instance, identical terms were used. The League of
Nations had only limited success enforcing the minority
guarantee clauses. Although some isolated minorities
arrangements of the League era survive to this day, the
League’s minority system as such died with it.
2.2.4
The International Labour organization
(ILO)
The ILO was the first international organization on which
individuals were represented. In the last eighty years, the
ILO has continued to set standards and supervise the
application thereof throughout member States.
The League of Nations Covenant envisaged the
establishment of an international organization to promote
´fair and humane conditions of labour for men, women
and children.´ That function was assumed by the
International Labour Organization, which came into
being at about the same time as the League. The ILO also
provides protections for vulnerable groups, including
indigenous and tribal peoples. Of special interest in
regard to minority rights, is the ILO Convention
concerning Indigenous and Tribal Peoplas in Independent
Countries of 1989; which replaced the Convention No.
107. The ILO survived the League and is now one of the
Specialized Agencies of the UN.
2.2.5
After the Second World War/the United
Nations
In the years following the two Great Wars, national
homogeneity was the declared aim, chaos the result. The
original humanitarian principles were often sidestepped
and even deliberately ignored. Minorities and their
treatment became a matter for bilateral negotiation, not
general international concern. The tumultuous problems
experienced in Europe at this time prompted the new
world order to ´change tack´: Minority and sectoral
protection was replaced by a concerted global attempt to
secure basic rights for all, without distinction.
Before the foundation of the United Nations, the human
rights protection which existed was rather sporadic. The
event of a truly global community created in the shadow
of mass violations of human rights and serious
infringements of territorial sovereignty with ensuing
catastrophic suffering provided an appropriate platform
for the launch of contemporary human rights.
The United Nations decided that the system of minority
group protection advocated by the League of Nations had
outlived its political expediency and elected to pursue a
policy of universal human rights, rendering a separate
system for minority protection superfluous. The
establishment of the Sub-Commission on the Prevention
of Discrimination and the Protection of Minorities
maintained a profile for relevant issues (now the SubCommission on the Protection and Promotion of human
Rights).
2.3 PROVISIONS
2.3.1 UDHR, Article 27
Equal rights and non-discrimination are the basic
principles in UDHR, the International Covenants and
other human rights instruments.
Art. 27 of the UDHR restricted itself to establishing a
´right to freely participate in the cultural life of the
community´ despite detailed debates on the issue. It is a
cultural right for the community. No specific rights for
minorities were hence given (ref. ´all´ in Art. 27.)
It can be argued that the UDHR covered minority rights
insofar as many minority issues are included expressly or
implicitly; e.g. freedom of expression (Art. 19) and
freedom of religion (Art. 18). However, the provisions of
the UDHR proved incapable of being used to protect
minority groups in the manner they desired. Accordingly,
the provision (Art. 27) was included in the ICCPR.
2.3.2 ICCPR, Article 27
Art. 27 of the International Covenant on Civil and
Political Rights 1966 is the most well-known provision
on special rights for minorities. It is widely recognized as
a real attempt in international law to promulgate the right
of minority groups to preserve their special identity. The
drafters considered the omission of such a provision in
existing legislation a gap in the sequence of
internationally recognized human rights (Nowak, M).
Even though it has collective aspects, Article 27 is,
contrary to Article 1 of the same Covenant (the Right to
Self-determination); which is a collective right, an
individual right.
2.3.2.1 ´Exist´
Art. 27 of the ICCPR is limited only to those States in
which ethnic, religious or linguistic´ groups are to be
found (ref. ´exist´). Capotorti, suggests that it is the
responsibility of each to recognize the existence of a
minority group. Nevertheless, if a State fails to do so, a
group whose members can be distinguished from the
majority population by one or more of the stipulated
characteristics is entitled to rely on the Article.
This line of reasoning (inclusion on the basis of objective
criteria) was used in Lovelace v. Canada. The author of
the communication, Sandra Lovelace, was born and
registered a Maliseet Indian, but lost her rights and status
as an Indian (in accordance with domestic law) when she
married a non-Indian. Mrs. Lovelace subsequently
divorced and sought to return permanently to the reserve.
As she remains ethnically a Maliseet Indian, the
Committee opined that she could still be regarded as
belonging to the minority group and thus invoke the
rights which should accrue to her in terms of Article 27.
Capotorti refutes the idea that inclusion in Article 27 is
dependent on the good-will of States, arguing instead for
inclusion on the basis of objective criteria. The term
´minorities´ was abandoned in favour of the phraseology
´persons belonging to´ minorities to ensure legal
acceptance: minorities per se were not subjects of
international law, persons belonging to such groups
however, could be defined. The necessity for a group
identity of a minority was reinforced by the inclusion of
´in community with other members of their group´.
Group membership is thus a sine qua non of the
enjoyment of the rights.
The selection of ethnic, religious and linguistic is
significant, as it is a narrower confine than that enshrined
in non-discrimination instruments. In effect, by
concentrating on these groups, the Covenant reiterates the
criteria employed by the League of Nations in
determining whether a group could be termed a minority
and thus afford the necessary protection. It is arguable
that ´racial´ and ´ethnic´ are interchangeable. (´National´
remains the preferred terminology in Europe.)
The provisions apply in addition to those contained
elsewhere in the Covenant. Thus, the minorities to whom
the Covenant extends are afforded the benefit of an extra
right, a degree of specialist protection. No limitations on
this right were incorporated into the text.
Minority rights apply irrespective of the permanence of
any given group in a State. Similarly, State recognition of
the minority in question is not required.
2.3.2.2
The right to enjoy one’s culture
The lack of a concise definition of the term ´culture´ is a
main stumbling block in this area of international law. In
a UNESCO report, ´culture´ has been defined as
´inextricably linked to tradition´. As culture, then,
comprehends all that is inherited or transmitted through
society, it follows that it is individual elements are
proportionately diverse. ´Culture´ is a complex concept. It
embraces all aspects of life in a community. It has
individual as well as collective aspects.
Any test of a State’s compliance with Art. 27 will, by its
very nature, be objective. Positive or negative promotion
of the culture by the State will be a key issue. Essentially,
what is required is proof that a community’s culture is not
suffering from State oppression. The Human Rights
Committee has acknowledged that Art. 27 allows for the
´adaptation of those (traditional) means to the modern
way of life and ensuing technology´.
In Lovelace v. Canada, the Committee stated that the
major loss to a person ceasing to be an Indian is the loss
of the cultural benefits of living in an Indian community
and that a refusal of Canadian law to permit the
realization of this natural cultural attachment was a
breach of Article 27.
The case of Lovelace can be contrasted to that of the
Lubicon Lake Band a few years later when the
Committee appeared more willing to recognize the rights
of indigenous groups without reservations.
2.3.2.3
The right to profess and practice religion
A principal problem in the guarantee by a State of
freedom of religion, particularly for minority religions, is
the historical interaction between a State and its religion.
Many States have an accepted State religion from which
holidays and the laws governing, for example, marriage
and dissolution evolve. Consequently, even a formal de
jure separation between the State and religion does not
guarantee true, de facto, separation.
Religious beliefs influence too many aspects of life to be
ignored. Perhaps more than culture, religious freedom, by
its nature, involves acts in community with others. Once
again, any test of a State’s compliance with art. 27 in this
respect will tend towards a objectivity. To an extent, the
provisions of art. 27 overlap with those of art. 18
(freedom of religion). There is also an inevitable overlap
with Art. 26; concerning State funding of secular schools.
2.3.2.4
The right to use one’s own language
Minority languages may simply be languages spoken by
deemed minority groups or languages other than the
principle language of State. There is no universal
consensus on the scope of ´language´. Ideally, each
language and the approach of the State thereto should be
resolved on a pragmatic basis. Full and natural use of
language is complex. Cases brought against France
arguing preservation of minority languages have been
inadmissible under Art. 27 as France entered a
reservation upon ratification which rendered Art.27
inapplicable (see inter alia T.K. & M.K. v. France).
2.3.2.5
Using the International Covenant
Art. 27 heralds progress for minority groups resident in
the territory of contracting States. However, the
realization of the rights enshrined therein are often more
idealistic than factual, being dependent on the will of the
State. Primarily, a State can restrict the operation of the
Article by imposing limitations on the concept of
´minority´.
The rights of minorities encapsulated in Art. 27 are not
absolute. Derogations are permissible in terms of Art. 4.
At no time during the term of derogation, may a State
adopt measures or practices that involve discrimination
\on the ground of race, colour, sex, language, religion or
social origin´. However, Art. 5 provides that nothing in
the present Covenant may be interpreted as implying for
any State, group or person any right to engage in any
activity or perform any act aimed at the destruction of
any of the rights and freedoms recognized in the
Covenant.
According to Capotorti, mere recognition and noninterference in the enjoyment of minority rights is not
enough; the States Parties need to take positive measures
to ensure that the rights can be enjoyed. Supportive action
is required.
As a result of the decisions by the Human Rights
committee in the Lubicon Lake Band case and the Kitok
case, it is clear that Art. 27 does, to some extent protect
economic rights; ´if they are an essential element of the
culture of an ethnic community´ (Kitok case). Also Article
15 in ICESCR is important regarding minorities’ right to
economic development and ability to sustain.
2.3.3
The Decalration on the Rights of Persons
Belonging to National or Ethnic, Religious,
and Linguistic Minorities 1992
Ethnic tensions in, inter alia Europe, prompted the UN to
adopt the Decalration on the Rights of Persons Belonging
to National or Ethnic, Religious, and Linguistic
Minorities in 1992 . The Declaration owes its existence to
the inspiration provided by Article 27 of the International
Covenant and the aims at promoting peace and stability.
The individual complaints procedures under the CERD
may also be of relevance for minorities as may the
procedure established by ILO and UNESCO to deal with
complaints within their respective areas.
2.3.4
GA Resolution 2007: Declaration on the
Rights of Indigenous Peoples
The Declaration on the Rights of Indigenous Peoples is a
non-binding, aspirational document of the developing
standards relating to indigenous peoples in international
law - the text creates no new rights in international law. It
affirms the equality of the more than 370 million
indigenous peoples and their right to maintain their own
institutions, cultures and spiritual traditions. It also
establishes standards to combat discrimination and
marginalization and eliminate human rights violations
against them. Although nothing new (or binding) is the
subject of the United Nations General Assembly
Resolution, it nonetheless is significant as it provides a
framework for human rights based dialogue between
Indigenous peoples and states.
It is possible that eventually the Declaration would have
some effect in law – if those rights contained in the
declaration were used by enough states that they became
elevated to the level of customary law or indeed if the
declaration became a convention in which signatory
states become legally bound by the instrument.
It can be said that some articles (not the whole text) in the
DRIP contribute to a growing body of customary law of
indigenous peoples rights.
Through its adoption, the UN human rights system
confirmed that it is indeed capable of faithfully
facilitating substantive standard setting activities for the
self-determination and collective rights of indigenous
peoples. DRIP symbolises goodwill on the part of states
in acknowledging the historical and still on-going
injustice towards indigenous peoples.
The Declaration will also go some way to delivering
justice to those first peoples whose deprivation of human
rights is the very cornerstone of sovereignty, wealth and
power for the most obstructive and argumentative states
who voted against the declaration in the General
Assembly.
The right to self-determination – ICCPR
Article 1
Collective or group aspects of minority rights have been
strengthened by linking interpretation of art. 27 (and
other rights) to Art. 1 of the ICCPR.
2.3.5
This right is of ´particular importance because its
realization is an essential condition for the effective
guarantee and observance of the individual human rights
and for the promotion and strengthening of those rights´
(General Comment No. 12 (1984), para. 1)
The right of ´all peoples´ to self-determination has a
political dimension (´freely determine their political
status´ and pursue their ´economic, social and cultural
development´) and also a resource dimension (´shall not
be deprived of their own means of subsistence´).
2.4 REGIONAL SYSTEMS
2.4.1
America
In the American system, there is a clear link to other
rights – Article 16(1) provides for freedom of association
for cultural purposes.
2.4.2
Africa
The African Charter (Art. 17(2)) provides that every
individual may freely take part in cultural life of his
community. However, given the emphasis on ´peoples´ in
the African Charter, it is inevitable that other ´minority
rights´ can easily be inferred in the provisions alluding to
cultural and traditional values. Morover, Article 29(7) of
the Charter imposes a duty on all individuals to ´preserve
and strengthen positive African cultural values´.
2.4.3
Europe
Europe, with instruments concluded under the auspices of
the various regional organizations, has the most
developed system to date. There are no provisions in the
European Convention on Human Rights which pertain
directly to minorities.
The issue of national minorities became increasingly
important in the Council of Europe in the 1980s as ethnic
conflicts re-emerged in the region. The European
Charter for Regional or Minority Languages was a
first effort by the Council to afford protection to such
groups. Adopted on November 5, 1992 and entered into
force March 1, 1998, the Languages Convention is not
yet widely ratified. The aims of the agreement are to
protect and promote the historical regional or minority
languages of Europe and to respect the right to use a
regional or minority language in private and public life.
On November 10, 1994 the Council of Europe adopted
the Framework Convention for the Protection of
National Minorities. The title of the Framework
Convention indicates its programmatic and largely
discretionary nature, a consequence of the political
controversy surrounding the issue. Although the
instrument is legally binding, the principles contained in
it are not directly applicable in domestic law, but require
the adoption of national laws and policies by States
Parties. The essence of rights is similar to those in the
ICCPR: preservation of religion, language, traditions and
cultural language, traditions and cultural heritage (Art.
5(1)). It should be noted that the underlying premise is
the protection of European heritage to further stability,
democratic security and peace in the continent.
The European Charter for Regional or Minority
Languages is also aimed primarily at national minorities.
The object of the Charter is to protect those historical
regional or minority languages ´some of which are in
danger of eventual extinction which contribute to
Europe’s cultural wealth and traditions´ (Preamble).
The European Union has not adopted any specific
instruments to protect minority rights. However, Article
22 of the European Charter for Fundamental Rights
of the European Union states that ´the Union shall
respect cultural, religious, and linguistic diversity´. This
will govern the operation of all Community institutions in
the future.
Probably the most significant contribution towards
minority rights has been the work of the Organization for
security and Cooperation in Europe (hereinafter OSCE).
Under the auspices of the OSCE, a system of guidelines
has been adopted, but there is no system of
implementation or enforcement per se. Although the
Helsinki Final Act (1975) makes a passing reference to
the rights of individuals belonging to national minorities,
it was the Copenhagen Concluding Document that in
1990 proclaimed a series of important OSCE
commitments on this subject. In 1992 OSCE established
the office of the High Commissioner on National
Minorities. With the end of the Cold War, real and
potential conflicts posed by minority issues including the
armed conflict in the former Yugoslavia, began to
threaten the peaceful transition to democracy in Eastern
and Central Europe and in the former Soviet Republics.
Concern with these problems is reflected in the mandate
of the HCNM.
2.5 CONCLUSION
It is reasonable to assume that this is one area in which
there may be further codifications of the law, perhaps
with the adoption of a more binding text on minority
rights. The return to minority rights demonstrates that the
assumption behind the original post-war documentation
(that full recognition of individual rights obviates the
need for group and minority protection) was inherently
flawed.