Protection of rights of
minorities within human rights
legal standards
Dr Vera Klopčič
Slovenia
Paper presents an overview on:
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Relevant provisions of the international human
rights instruments and instruments for protection
of minorities adopted at universal and regional
level / UN Convention on the Rights of the
Child, Coe Framework Convention for the
Protection of National Minorities, European
Charter for Regional or Minority Languages /.
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Historical background and recent developments
in the field of protection of minorities and
recognition of the right to education in the
context of inclusion of all members of minorities.
UNIVERSAL DECLARATION OF
HUMAN RIGHTS
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UNIVERSAL DECLARATION OF HUMAN RIGHTS was
proclaimed in 1948 as a common standard of
achievement for all peoples and all nations.
PREAMBLE
Whereas recognition of the inherent dignity and of the
equal and inalienable rights of all members of the
human family is the foundation of freedom, justice and
peace in the world,
Article 1.
All human beings are born free and equal in dignity and
rights.They are endowed with reason and conscience and
should act towards one another in a spirit of brotherhood.
The European Convention on
Human Rights (1950)
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Preamble reffers to the Universal
Declaration and declares enforcement of
certain of the Rights stated in the
Universal Declaration as the aim of the
Convention;
The Convention established the new
institution: European Court of Human
Rights (ECHR) and any person who feels
that his/ her human right have been
violated by a state can appeal to the
ECHR.
The UN Convention on the Rights
of the Child
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The Convention on the Rights of the Child, adopted by the
United Nations General Assembly in 1989 provides an
essential legal framework for protection of children rights.
Preamble inter alia declares that children are subjects of
human rights, including the right to life, survival and
personal development. States Parties should respect the
importance of the traditions and cultural values of each
people for the protection and harmonious development of
the child.
According to the UN Convention, States are obliged to
respect the best interest of the child in all decisions
relating to the status and rights of children.
Right to education/UN Convention/
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Article 29
1. States Parties agree that the education of the child shall be
directed to:
(a) The development of the child's personality, talents and mental
and physical abilities to their fullest potential;
(b) The development of respect for human rights and fundamental
freedoms, and for the principles enshrined in the Charter of the
United Nations;
(c) The development of respect for the child's parents, his or her
own cultural identity, language and values, for the national values
of the country in which the child is living, the country from which
he or she may originate, and for civilizations different from his or
her own;
(d) The preparation of the child for responsible life in a free
society, in the spirit of understanding, peace, tolerance, equality
of sexes, and friendship among all peoples, ethnic, national and
religious groups and persons of indigenous origin;
(e) The development of respect for the natural environment.
Rights of children belonging to
minority groups
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Article 30
In those States in which ethnic, religious
or linguistic minorities or persons of
indigenous origin exist, a child belonging
to such a minority or who is indigenous
shall not be denied the right, in
community with other members of his or
her group, to enjoy his or her own culture,
to profess and practise his or her own
religion, or to use his or her own
language.
Minority issues within the scope of
human rights protection
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Recently, minority issues have again
become an important factor of
international relations and occupy an
important position in discussions on
human rights on the whole. Today,
cultural diversity is declared as
enrichment of societies. New instruments
provide the obligation of the States to
create adequate conditions for the
expressing, preserving and promoting of
national minority identity, as well as to
provide for an atmosphere of tolerance
and dialogue.
Protection of minorities in the
“century of nations"
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In the 20th century - "the century of nations and
nation States" - when great importance was
ascribed to the ethnic principle and to the right of
self-determination, the theory of the ethnic
dimension of self-determination of nations as
groups prevailed.
Therefore, the international minority protection
mechanism was based on territorial principle.
Special rights, and rights in the field of education
as well, were granted only to some “traditional”
national minorities.
Classical approach
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Term"traditional national minorities",
applies for a groups which are “parts of
the nation leaving in another, usually
neighboring states”. According to such
approach, national minorities should
have a country of origin, acting as a
protector of their rights at
international level.
Which groups could be defined as
minorities?
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Special Rapporteur Francesco Capotorti, (1979)
in the “Study on the rights of persons belonging
to ethnic, religious, and linguistic minorities”
proposed a draft definition: a minority is "a group
numerically inferior to the rest of the population
of a State , whose members - being nationals of
the State- posses ethnic, religious or linguistic
characteristics differing from the rest of the
population and who, if only implicitly, maintain a
sense of solidarity, directed towards preserving
their culture, traditions, religion or language",
prepared by Francesco Capotorti ( Capotorti
1976: 5)).
Evolution of international standards
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In the last decades of the 20th century important
documents on minority protection were adopted at
international level. The right to education free from
discrimination has been recognized as universal human
right in international documents.
The respect for the rights of minority groups,
antidiscrimination and the appreciation, preservation and
development of cultural diversity as richness of the
community is today a significant indicator of the degree of
democracy of modern states.
Recently, new term of “ vulnerable” groups was introduced,
which covers a wider range of marginalised groups.
Framework convention
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The Convention is the first overall and
compulsory international legal document
on national minority protection.
As it is well known the Framework
Convention for Protection of National
Minorities (1995) does not contain a
definition of a term “national minority”,
and gives discretionary power to the
states to implement the principles
enshrined.
Right to education
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Article 12
The Parties shall, where appropriate, take measures in the
fields of education and research to
foster knowledge of the culture, history, language and
religion of their national minorities and of the majority.
In this context the Parties shall inter alia provide adequate
opportunities for teacher training and access to
textbooks, and facilitate contacts among students and
teachers of different communities.
The Parties undertake to promote equal opportunities
for access to education at all levels for persons belonging
to national minorities.
Use of minority languages
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Article 10
The Parties undertake to recognise that every person
belonging to a national minority has the right to use freely
and without interference his or her minority language, in
private and in public, orally and in writing.
In areas inhabited by persons belonging to
national minorities traditionally or in substantial
numbers, if those persons so request and where
such a request corresponds to a real need, the
Parties shall endeavour to ensure, as far as possible, the
conditions which would make it possible to use the minority
language in relations between those persons and the
administrative authorities.
The European Charter for Regional
or Minority Languages
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The European Charter for Regional or Minority
Languages is the only international legal
instrument that exclusively addresses the issues
related to the protection and promotion of
linguistic diversity. The main purpose of the
Charter is to protect regional or minority
languages spoken in member states of the
Council of Europe. Different from the Framework
Convention for Protection of National Minorities,
even though the two instruments are
complementary to one another, the Charter
concentrates not on minorities as such but on the
protection of regional or minority languages.
Definition in the Charter
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Now what does this concept of "regional or
minority languages" actually mean? According to
the definition contained in Article 1 of the
Charter, they are languages which are
traditionally used within a given territory of a
state by nationals of that state who form a
group numerically smaller than the rest of the
population.
In expert circles and literature, the
exclusion of other languages, spoken by
migrants or other non –citizens is observed
as one of the main shortages of the Charter.
Open issues
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For instance, at what point can a language
be regarded as being traditionally used in a
given territory? Or when does a particular
idiom cease to be a dialect and become a
separate language? Linguistics provides no
definite answers to such questions, and
socio-psychological and political factors
inevitably play a role in the decision. As a
result, the authors of the Charter decided
not to draw up a list of regional and
minority languages in Europe. Some people
regard this as a failing, because it leaves the
decision to the respective state.
Protection of non territorial
languages
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The Charter also provides for the protection
of non territorial languages, which are
languages that cannot be attached to a
certain territory. These are languages such
as Yiddish and Romani languages. However,
in some states such as Finland, there are
two official languages, Finnish and Swedish.
Swedish is protected under the Charter as
the lesser widely used official language. In
these circumstances, where an official
language is less widely used on the whole or
parts of a territory of a state, the Charter
can be very useful because a particular state
language can profit from the protection
mechanism of the Charter.
The part II of the Charter
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The part II of the Charter sets out the objectives
and principles to all regional or minority
languages, spoken in a particular territory and
provides long-term goals of language policy.
These objectives and principles include in
particular the principle of recognition of regional
and minority languages, as a value for the whole
country and community, promotion of oral and
written use of language in public, social and
economic life and teaching and study of these
languages at all appropriate levels. Promotion of
mutual respect for all regional or minority
languages and encouragement for contacts
among them is linked to idea of linguistic
pluralism in multicultural societies.
The third part
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The third part of the Charter contains specific provisions to
encourage the use of languages, indicated in the
instrument upon ratification. This section imposes an
obligation on states to take positive measures to protect
and promote regional or minority languages in several
areas, namely: education, the right use of language in
relation to administrative and judicial authorities, the
media, cultural activities, economic and social life and in
cross-border cooperation. The scope of protection may vary
depending on the situation of each language (the number
of speakers, historical circumstances, the importance of the
total geographical area, etc..), But any State Party has to
establish a minimum of 35 measures for each language
that is chosen and indicated in the instrument on
ratification .
Monitoring mechanism
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As for the implementation mechanism, the
Parties must present every three years to
the Secretary General of the Council of
Europe a report on the policy and measures
adopted to implement the provisions they
have undertaken. A Committee of
independent Experts, composed of
individuals of recognized competence in the
matters dealt with in the Charter, examines
these reports, which are made public by the
State Party and of course by the Council of
Europe.
The MINLANG Committee
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The Committee’s role is to evaluate
the existing legal acts, regulations
and real practice applied in each State
for its regional or minority languages.
It has established its working
methods accordingly. The Committee
gathers information from the
respective authorities and from
independent sources within the State,
so as to attempt to obtain a just and
fair overview of the real language
situation.
Protection of Roma in international
documents
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Having been subject to unfavourable
historical situation and negative attitudes
on the part of majority populations, Roma
continue to live in unfavourable social
conditions and are still victims of
marginalization and prejudice. That is why
the documents treat them as a
threatened/vulnerable community which
has to be given the chance of social
integration. In 2004 legal experts in EU
even proposed a special Directive on social
integration of Roma.
Segregation of Roma children
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The problem of segregation of Roma children has
been taken up by the European Court of Human
Rights (ECHR) in several cases. ECHR stated in
recent judgments that segregation of Roma
children is violation of the provisions on
prohibition of discrimination in connection
with the right to education. However,
practices that Roma children are placed in special
classes or institutions still exist in several
countries. Education in segregated schools leaves
them poor chances for further education and
extremely limited options of finding work.
General remarks
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In the context of integration in the field of
education, the importance of equal access to
education is singled out in international
instruments and in the process of monitoring.
States Parties shall encourage a spirit of
tolerance and intercultural dialogue and take
effective measures to promote mutual respect
and understanding and co-operation among all
persons living on their territory
International instruments do not give a single
answer about the language in which the
instruction should be conducted.
Implementation of international
standards
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In the first instance, the aim is to protect
members of minority or vulnerable groups
against discriminatory treatment.
The Parties are obliged to undertake appropriate
measures to protect persons who may be subject
to threats or acts of discrimination, hostility or
violence as a result of their ethnic, cultural,
linguistic or religious identity.
However, legal regulation and implementation of
international standards in individual states is
doubtless strongly influenced by diverse factors
deriving from concrete political, geographical,
historical, economic and other circumstances.
Thank you
Thank you for your attention!
HVALA