Towards a UN Special Representative on Minority
Issues — drawing upon the experiences of the
OSCE High Commissioner on National Minorities
Rianne Letschert1
Introduction
The need to protect minorities is beyond dispute. The topicality of the issue is
reflected on the international level, where different organisations, such as the
United Nations (hereafter UN), the Council of Europe, the European Union, and the
Organisation for Security and Co-operation in Europe (hereafter OSCE) have
undertaken various initiatives designed to improve the protection of minorities.2
Each organisation is trying its best to devise the most adequate way to protect
minorities, focusing on, among other things, ‘the expansion of the normative
framework; the elaboration of mechanisms; and the promotion of intergroup
accommodation and mutual confidence’.3
Discussions on all these issues are the order of the day, although they
increasingly focus on the elaboration of mechanisms, since the implementation of
and the supervision concerning minority rights remain inferior to the expansion of
the normative framework.4 Moreover, the frequency of existing or simmering
conflicts, attributable to the violation of minority rights not only in Europe but all
over the world, clearly implies that the protection of minorities has to be given
greater attention and that new paths need to be followed.
This growing awareness of the need to further enhance the protection of
minorities has led to discussions within the United Nations on the desirability of
appointing a Special Representative with special responsibility for issues
1
2
3
4
Ph.D. researcher in international law (subject of the Ph.D.: international monitoring
mechanisms on the protection of national minorities; an analysis of aims, strengths and
weaknesses) at the Department of European and International Public Law, Tilburg University
and the T.M.C. Asser Institute, The Hague, The Netherlands. The author wishes to thank
Professor Max van der Stoel, Professor Willem van Genugten and Anne-Marie de Brouwer,
LL.M, for their valuable comments on the first draft of this article.
For an overview of the various initiatives see the recently published United Nations Guide for
Minorities which contains a series of pamphlets. The pamphlets provide information on how
minorities could make use of human rights procedures existing within the United Nations
system and those established by regional mechanisms in Africa, the Americas, and Europe.
See P. Thornberry, & M.A. Martin Estébanèz, The Council of Europe and Minorities,
CoEMIN, September 1994, p. 3, in which they distinguish these three different aspects of
minority protection.
See in this regard also G. Alfredsson & A. de Zayas, ‘Minority Rights Protection by the
United Nations’, Human Rights Law Journal, Vol. 14, No.1-2, 1993, pp. 1-9, p. 4, in which
they state: ‘The value and effectiveness of international standards […] depends on the
supervisory mechanisms set up to monitor state performance’. And: ‘[…] the international
standards are fairly well advanced. They provide for equality and dignity, non-discrimination
and affirmative action. They may need further elaboration in certain instances, but the greatest
opportunities lie in more frequent and more effective use of existing implementation
procedures’, p. 8.
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Rianne Letschert
concerning the protection of minority rights. In these discussions reference is often
made to the work of the OSCE High Commissioner on National Minorities
(hereafter High Commissioner or HCNM).5
In May 2002, the United Nations Working Group on Minorities held its 8th
session in which this issue was again addressed.6 Recommendation I of the final
recommendations adopted at the 8th session provides that the Commission on
Human Rights, through the Sub-Commission, ‘should explore in due time the
possibilities of establishing a special procedure mechanism on the rights of persons
belonging to minorities such as a special rapporteur or special representative’.
It seems very logical to establish a similar instrument to that of the HCNM on a
global level, given the enormous accomplishments of Max van der Stoel, the first
OSCE High Commissioner. However, what might seem logical at first sight could in
practice be unrealistic and perhaps even undesirable.
Firstly, would it be possible to establish such an instrument in a UN context,
given the existing reluctance of States to recognize minorities and, for that matter,
minority rights? Moreover, would it not be even more problematic to create such an
intrusive instrument, which could trespass on the ‘so beloved’ sovereignty of
States? Secondly, would it be possible for such an instrument to operate on a global
level, considering the number of countries this Special Representative will have to
deal with? Finally, what mandate should this instrument have? Should the mandate
of the ‘global’ Special Representative be based on the mandate that was given to
Max van der Stoel in 1992, or should a different mandate be developed, in view of
the fact that the mandate given to Van der Stoel was interpreted and elaborated by
him during his many years in office?
These questions will have to be answered, in order to determine whether it is
possible and desirable to create the post of a UN Special Representative on Minority
Issues, and subsequently, whether it should be created according to, and building
on, the mandate of the OSCE High Commissioner.7
The road towards a UN Special Representative on Minority Issues
The adoption of the Declaration on the Rights of Persons belonging to National or
Ethnic, Religious, and Linguistic Minorities (hereafter Minority Declaration) in
1992 has created a normative framework for the UN approach to minority issues. In
addition, the creation of the Working Group on Minorities by the Commission on
Human Rights in 1995 constitutes the basis for a systematic supervisory approach
5
6
7
The terms ‘High Commissioner’ and ‘HCNM’ are used interchangeably for the sake of
readability, similar to the terms ‘UN Minority Man’ and ‘UN Special Representative’.
I say ‘again’ since it was already recommended at the 7th session, see ‘Report of the Working
Group on Minorities on its seventh session,’ E/CN.4/Sub.2/2001/22, para. 150 and
Recommendation 16 which states that the Commission on Human Rights should ‘consider the
possibility of recommending the appointment of a Special Representative on Minorities’.
The answers to the questions posed will not be dealt with according to the above-described
order, but will be incorporated throughout the text where appropriate.
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Towards a UN Special representative on Minority Issues
159
to minority issues. The core mandate of the Working Group8 is to examine ways
and means to effectively promote and protect the rights of persons belonging to
national or ethnic, religious, and linguistic minorities as set out in the Minority
Declaration.
Within the UN, many human rights instruments have monitoring procedures
that could be of possible use for minorities. For example, in relation to thematic
issues such as religious intolerance and racial discrimination, treaty-monitoring
bodies and special rapporteurs touch upon issues that are of concern for minorities.
However, since their mandate is broader than ‘just’ minority issues, their
engagement with minority matters is limited.9 The same applies to their impact on
providing specific solutions to minority problems. Given this lack of a ‘minority
supervisory body’, the Working Group on Minorities has become the most
important UN minorities’ forum. However, during its term of office the Working
Group understood that its work alone was not enough for an effective system of
minority protection, but that the UN needed ‘an international mechanism for rapid,
responsible and constructive handling of minority questions’.10 Consequently, the
call for a Special Representative on Minorities grew increasingly stronger.
Therefore it did not come as a surprise that the Working Group at its 8th
session received recommendations from representatives of NGOs and scholars on
the establishment of a Special Representative for Minority Issues (hereafter Special
Representative) under the Secretary General. Ultimately, as at the previous session,
the Working Group adopted a recommendation, urging the Commission on Human
Rights to study the possibilities of establishing a special procedure mechanism on
the rights of minorities. The recommendation also contains a possible mandate,
viz., ‘the monitoring of the implementation of the Declaration [Minority
Declaration 1992], facilitating the provision of technical cooperation on issues
relating to conflict prevention and assisting the Working Group in drawing up a
code of conduct’.
A UN Minority Man?11
Minority Rights Group International (hereafter MRG) argues that ‘there is a clear
need to introduce an effective minority-oriented conflict prevention mechanism
8
9
10
11
The Working Group on Minorities is a subsidiary organ of the Sub-Commission on the
Promotion and Protection of Human Rights from which it draws its five expert members, each
representing the five geographic regions which the UN uses to divide seats on UN bodies. The
current members of the Working Group are: Mr. Asbjørn Eide (Chairman, Norway), Mr. José
Bengoa (Chile), Mr. Vladimir Kartashkin (Russian Federation), Mr. Soli Sorabjee (India) and
Ms. Leïla Zerrougui (Algeria). Since 1995, the Working Group has convened annually for
one week in Geneva.
See Minority Rights Group Briefing Series, Minorities and Conflict Prevention: the Case for a
Special Representative, March 2002, p. 2.
Ibid.
See in similar terms: ‘Max van der Stoel, Minority Man’, The Economist, 9 September 1999.
When the term ‘UN Minority Man’ is used, it should of course also be read as ‘UN Minority
Woman.’
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Rianne Letschert
into the UN human rights system.12 The appointment of a UN Special Representative
of the Secretary-General on Minorities would provide the best institutional
response to existing or potential situations involving minorities’.13
An International Peace Academy report refers in this regard to the work of the
HCNM and mentions that ‘while it [the High Commissioner’s approach] has
emerged from a particular historical context of regional integration, the similarity
of challenges around the world posed by the necessity to reconcile the competing
needs, aspirations and interests of various ethnic groups, involving complex and
sensitive minority-majority relations, means that its practices may be of use
elsewhere’.14
However, a preliminary question immediately arises when discussing the
creation of a UN Minority Man: Would it be feasible to create a special instrument
for minority issues within the UN, given the reluctance of States to allow other
parties to become engaged in their internal ‘minority matters’? When the mandate
of the High Commissioner was being negotiated in 1992, the political climate was
at is best to achieve consensus regarding the mandate. Max van der Stoel has stated
many times that, if the mandate should have to be renegotiated at this stage,
consensus would probably never have been reached. However, even at that time it
was not easy to reach consensus. On the contrary, many doubts were expressed at
the beginning of the negotiations as to the desirability of establishing such an
instrument. These doubts could, in some cases, only be removed by amending the
draft mandate. The final result is therefore the product of a compromise between
the various opinions of all the participating states.15 Ultimately consensus was
reached; ‘the mandate is therefore, in theory at least, politically supported by all the
participating States’.16
Within the UN, it will probably be as difficult as it was for the OSCE Member
States to reach agreement on the establishment of a Special Representative on
Minority Issues. When it was discussed at the 8th session, there were many
government observers who wanted to intervene, and the reactions were not too
positive. A similar trend can be observed within the Council of Europe and, for that
12
13
14
15
16
‘With regard to conflict, the Secretary-General has called on the UN to move from a culture of
reaction to a culture of prevention,’ see the report of the Secretary-General to the Commission
on Human Rights on the Rights of Persons Belonging to … Minorities (E/CN.4/2002/91), and
his statement that ‘the need for effective mechanisms to protect minorities and other
vulnerable groups is as great now as it has ever been’, delivered to the Commission on
Human Rights on 12 April 2002, cited in the joint statement of MRG and NGOs (annex 1),
under agenda item 4, presented at the 8th session of the UN Working Group.
MRG Briefing, p. 1.
IPA Workshop Report, Sharing Best Practices on Conflict Prevention: the UN, Regional and
Subregional Organizations, National and Local Actors, 8-10 April 2002, Alexandria,
rapporteur: S.J. Lodge, p. 6.
See R. Zaagman & H. Zaal, ‘The CSCE High Commissioner on National Minorities:
Prehistory and Negotiations’ in: A. Bloed, The Challenges of Change, the Helsinki Summit
and its Aftermath, Martinus Nijhoff Publishers, 1994, pp. 95- 113, p. 105.
Ibid, p. 98.
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Towards a UN Special representative on Minority Issues
161
matter, the OSCE. The various declarations or reservations submitted upon the
signature or ratification of the Council of Europe’s Framework Convention for the
Protection of National Minorities, explaining which groups they will consider to be
national minorities, confirm this.
A next question that should be raised is whether it would be possible for an
instrument like the HCNM to operate on a global level. According to Chigas, the fact
that there is only one High Commissioner is one of the most serious limitations of
the HCNM’s mandate.17 A one-man show in the field of minority protection where
difficult ethnic issues play an important role, in a region so outstretched,
characterised by different peoples, cultures, languages, religions, political and
economic structures would seem to be a challenging yet impossible role to fulfil.
This would even be worse for an ‘instrument’ that has to tackle the entire world.
Moreover, the High Commissioner has a small staff at his disposal, while the
complex and threatening situations that have to be dealt with are enormous. And, to
make matters worse, he has limited resources due to his low budget.
This could have a substantial impact on the follow-up to several opportunities
for conflict prevention. Max van der Stoel expressed many times his disbelief that
the international community is willing to pay millions of dollars to solve
international conflicts, while the amount of money available to conflict prevention
is stunningly small. In this regard, he also criticised the fact that, ‘alone among the
various dimensions of the CSCE, the economic dimension is virtually lacking from
the range of CSCE conflict prevention tools’.18 This dimension is, however, of the
utmost importance for the realisation of minority rights since a marginalization of
minority groups in the economic sense often leads to tensions whereby ethnicity
issues become more apparent than would otherwise have been the case. Within the
UN, this issue would even be more significant, given the number of countries with
minority problems and, consequently, the enormous amounts of financial resources
needed.
Imagine, however, that prior consensus could be reached on the establishment
of a UN Special Representative. Subsequently the negotiations on the mandate
could begin, in the course of which the following consideration must be made:
Should the mandate of the ‘global’ Special Representative be based on the mandate
that was given to Max van der Stoel in 1992, or should a different mandate be
developed, in view of the fact that the mandate given to Van der Stoel was
interpreted and elaborated by him during his many years in office. A few important
and controversial elements in the mandate of the High Commissioner as such, and
as interpreted by the HCNM, will be shortly highlighted in the next section.19
17
18
19
D. Chigas, ‘Preventive Diplomacy and the OSCE’, in: A. Chayes & A. Handler Chayes (eds),
Preventing Conflict in the Post-Communist World, Mobilizing International and Regional
Organizations, Brookings Occasional Papers, Washington 1996, p. 40.
‘The Role of the CSCE High Commissioner on National Minorities in CSCE Conflict
Prevention’, address by Max van der Stoel to the Seminar entitled ‘The CSCE as a Security
Tool in Europe: Which Role for the CSCE?’, Brussels, 4 June 1994.
For a thorough discussion of the mandate I refer to R. Zaagman, ‘The CSCE High
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The search for a mandate for the UN Special Representative
The office of the High Commissioner on National Minorities has been installed to
identify and seek early resolution of ethnic tensions that might endanger peace,
stability, or friendly relations between OSCE participating states. The OSCE has
conceived the High Commissioner as an instrument of strictly preventive
diplomacy. This is clearly reflected in its functions. The High Commissioner is
basically charged not with the promotion and protection of the rights of national
minorities, but with early warning, and if needed, early action.
Hence, the mandate contains no provision stating that the High Commissioner
should promote the application of OSCE commitments, either those regarding
national minorities or other OSCE norms. From this perspective, it means that he is
not an actual implementation instrument. However, his work should be based on
OSCE principles and commitments, as well as on other international minority
standards. In this way the High Commissioner has made ‘norm compliance a
necessary element of his problem-solving approach’.20 Consequently, Ratner
contends that ‘although the OSCE created the position of the High Commissioner as
part of its mission of preventing conflict rather than explicitly as a mechanism to
implement OSCE norms of minorities or human rights, his work in practice has
shown the inseparability of norm implementation and conflict prevention’.21
What does this mean for a UN Special Representative, considering the fact
that the UN approach to minority issues comes more out of the human rights angle?
According to MRG, the tasks of the UN Special Representative would be the
following:
The proximity of the Special Representative to the UN Secretariat would
ensure effective early warning in situations involving minorities and proper followup to such situations within the core activities of the UN organization. Preventive
activities would be pursued by the Special Representative in cooperation with
relevant UN bodies and agencies, as well as regional institutions and mechanisms.
The Special Representative’s task would be to ensure adequate solutions to specific
problems that are both politically viable and in line with international minority
standards. The nature of this expert’s involvement would also enhance the focus on
technical assistance to address the problems that lie at the root of tensions and
conflicts involving minorities22 (emphasis added).
The Special Representative would report directly to the office of the
Secretary-General in order to provide the Secretariat with ‘accurate, timely and
20
21
22
Commissioner on National Minorities: An Analysis of the Mandate and the Institutional
Context’ in: A. Bloed, The Challenges of Change, the Helsinki Summit and its Aftermath,
Martinus Nijhoff Publishers, 1994, pp. 113-177.
In S. Ratner, ‘Does International Law Matter in Preventing Ethnic Conflict?’ New York
University Journal of International Law and Politics, Spring 2000, Colloquy, Minority
Disputes in Europe: Towards New Roles for International Law, p. 622.
Ratner, 2000, op. cit., p. 607.
MRG Briefing, p. 1.
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Towards a UN Special representative on Minority Issues
163
unfiltered information on developing conflicts’.23 Upon such an early warning, the
Secretariat should immediately bring the situation to the Security Council, based on
Article 99 of the UN Charter.24 Besides the early warning function, the Special
Representative would also have to fulfil an early action function to de-escalate
emerging tensions.25
Thus, according to MRG, the UN Special Representative, like the OSCE High
Commissioner, would not be charged with the promotion and protection of the
rights of national minorities, but with early warning, and if needed, early action.26
In other words, his role is not to monitor human/minority rights per se, but to find
solutions which satisfy both the minority group and the government and which
provide for peace and cooperation.27 However, as is the case for the High
Commissioner: ‘international standards on minorities should constitute the
principal framework of analysis and the foundation of specific recommendations
that will follow the Special Representative’s involvement’.28 In this way, one
element of the mandate as described in Recommendation 1,29 namely, ‘to monitor
the implementation of the Declaration’, will be fulfilled.30
If one follows Ratner’s interpretation, this would not affect the relationship
between norm implementation and conflict prevention. On the contrary, the human
rights/minority rights angle (as used in the UN minorities concept) would interrelate
with the conflict prevention model (as used in the OSCE’s minorities concept).
A rather unique element in the High Commissioner’s mandate is the fact that
an external third party, a non-state entity, can become involved at the earliest
23
24
25
26
27
28
29
30
Ibid, p. 3.
Article 99 UN Charter: ‘The Secretary-General may bring to the attention of the Security
Council any matter which in his opinion may threaten the maintenance of peace and security’.
According to MRG, these actions should be pursued in cooperation with relevant UN agencies
and bodies, as well as regional institutions, see MRG Briefing, p. 3.
Given that the failure of the early warning capacity of the UN was seriously revealed since the
incident in which a Special Rapporteur of the Commission on Human Rights had predicted a
year in advance the genocide in Rwanda without any subsequent action, an instrument of
conflict prevention would not be superfluous. See for more information the ‘Report on the
independent inquiry into the actions of the UN during the 1994 genocide in Rwanda’, 15
December 1999, in which the Secretary-General found, among other things, that ‘At
Headquarters there was not sufficient focus or institutional resources for early warning and
risk analysis. Much could have been gained by a more active preventive policy aimed at
identifying the risk for conflict or tension …’, cited in MRG Briefing, p. 2. In a way the
Secretary-General has a conflict prevention role, provided for in art. 99 of the UN Charter.
In K. Birmingham, The OSCE and Minority Issues, The Foundation on Inter-Ethnic Relations,
November 1995, p. 25.
See MRG Briefing, p. 3.
See Recommendation 1 adopted at the Working Group’s 8th session. As indicated before, this
element has not been taken up in the High Commissioner’s mandate.
The other elements of the mandate mentioned in Recommendation 1, viz., ‘facilitating the
provision of technical cooperation on issues relating to conflict prevention and assisting the
Working Group in drawing up a code of conduct’ will not be further examined in this article.
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Rianne Letschert
possible stage of a possible conflict. And, moreover, he can become involved at his
own discretion; even the approval of the OSCE’s Permanent Council is not needed.
Secondly, this non-state entity has the right to enter a participating state even
without that state’s formal consent or the explicit support of other participating
states.31 The mandate also explicitly states that the HCNM should work
‘independently of all parties directly involved’.32 Zaagman considers these
elements in relation with the principle of state sovereignty as two conflicting
requirements in the mandate:
On the one hand, it was deemed necessary to give the High Commissioner a
considerable measure of independence and flexibility of action and the requirement
that he be able to maintain a low profile. On the other hand, there was a reluctance
and unease on the part of many participating states regarding an independent
international official roaming a very sensitive area who might trespass on state
sovereignty and who might become involved in situations which one participating
state or another would rather close off from outside scrutiny.33 This tension colours
the entire mandate and may in certain situations impair the effectiveness of the
High Commissioner. Apart from excluding certain situations, the text of the
mandate may give rise to misunderstandings, conflicting interpretations or even
conflicts over competences, with the risk that the High Commissioner becomes
bogged down in procedural quicksand or even worse.34
Van der Stoel has on several occasions declared that if the mandate would
have had to be negotiated at this moment, he would probably not have been given
such a degree of freedom.35 However, a ‘global’ Special Representative on
Minority Issues should have the same powers since these conditions clearly
enhance the promptness and flexibility of the High Commissioner’s actions, which
is imperative in order to safeguard the effectiveness of the instrument.
That this will be difficult to achieve was already acknowledged in the
introduction, since the ‘so beloved state sovereignty’ could be trespassed upon by
this ‘independent international official roaming a very sensitive area’, which could,
and probably would, affect the willingness of States to agree to the establishment of
a UN Special Representative. In particular when one bears in mind the existing
reluctance of States to react upon the interventions made by NGOs at Working
Group sessions, or worse, to attend the meetings.
31
32
33
34
35
There have been a few instances in which Max van der Stoel was denied access to the
country, for example in Yugoslavia and Turkey.
Chapter II, paragraph 4, Helsinki Decisions.
This is what is often referred to as the ‘increasing intrusiveness’ of the OSCE, a development
whereby the OSCE is increasingly penetrating in the internal affairs of participating states. This
development is a reflection of the already mentioned principle that issues concerning national
minorities belong to the legitimate concern of all OSCE participating States. However, the UN
has not yet reached this stage when discussing minority issues. The reactions of some of the
Government observers during the 8th session make this unfortunately clear.
Zaagman, 1994, op. cit., p. 117.
That also explains why Max van der Stoel never wanted to start discussions on the reform of
his mandate, out of fear of a more restrictive mandate.
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Concluding remarks
Suppose that the obstacles mentioned in this article (viz., the reluctance of states to
accept such an intrusive instrument, trespassing on state sovereignty, operating on a
global level) are overcome. Consequently, the Commission on Human Rights will
follow up on the recommendations made by the Working Group in its 7th and 8th
sessions to create the post of a ‘UN Minority Man,’ as a result of which the
discussions on the mandate begin. One possible option would be to establish a
completely new mandate. Another option could be for the UN instrument to take
over the mandate as applicable to and interpreted by the OSCE High Commissioner
on Minorities. The work of the former High Commissioner, Max van der Stoel, was
praised more than once during the 8th session, and the creation of a similar
instrument was seen by many as the best way to further develop the protection of
minorities within the UN. However, some critical comments should be made.
A first point of criticism concerns the restriction in the mandate relating to
terrorism, viz., the High Commissioner cannot become involved in situations
involving organised acts of terrorism (para. II.5b).36 Should the HCNM be impeded
from becoming engaged in urgent matters where violent groups are trying to take
control of the state? Would this not be the ultimate situation whereby a mechanism
such as a High Commissioner or a Special Representative could play a significant
role in bringing parties together in a constructive dialogue? I would argue in favour
of this. This exception could limit the effectiveness of preventive diplomacy. In
addition to the difficulty of defining a terrorist, the exclusion of people who
condone violence from the engagement of the HCNM might in fact enhance the
influence of such groups, as well as their ability to disrupt society.37 It should at
least be accepted to consider minority issues within a country where terrorists are
active, without entering into a dialogue with terrorists.
A second point of concern is the follow-up of the recommendations made by
the HCNM.38 Some scholars claim that the (former) HCNM’s involvement has had a
positive impact, but that at the same time, his involvement has not brought any
lasting resolutions. The follow-up of his recommendations has still not become
36
37
38
The mandate contains certain other limitations, e.g. ‘the High Commissioner will not consider
national minority issues occurring in the state of which the High Commissioner is a national
or a resident, or involving a national minority to which the High Commissioner belongs, only
if all parties directly involved agree, including the State concerned (para. II.5a)’.
See Chigas, op. cit., p. 38.
Throughout the years, Van der Stoel has issued many recommendations. The mandate does
not contain a provision regarding the issuance of recommendations and yet they have evolved
into one of the specific working methods of the HCNM. He decided to write down his
recommendations when he realized that he could gain greater backing from the participating
states if his suggestions were written down. The practice developed that the High
Commissioner would also submit his recommendations to the Permanent Council. In this way
the OSCE participating states were always informed about the activities of the HCNM. See W.
Kemp, Quiet Diplomacy in Action, The OSCE High Commissioner on National Minorities,
Kluwer Law International (The Hague, London, Boston, 2001), p. 57-59.
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Rianne Letschert
systematic. Regarding the implementation of the recommendations, a great deal
must still be done. It is necessary to subject this implementation to a more structural
review than is currently the case. This review could take place at the biannual
Human Dimension Implementation Meeting, where the activities of the HCNM are
being discussed. However, this meeting only takes place once every two years and
only addresses his activities in general. What is needed is a more detailed review of
his recommendations to specific countries.39 Within the UN, this review could take
place during the sessions of the Working Group on Minorities, a body that has
already proven its great knowledge on the complex issues it has to deal with.
As indicated before, many states are reluctant to allow international
organisations to intervene in their internal affairs when it concerns minority issues
(or other human rights issues for that matter). Therefore, if consensus could
ultimately be reached concerning the mandate of a UN special representative, it
would probably come out the worse for wear. This immediately raises the question
whether it would then still be useful to have such an instrument. Therefore it might
be better to opt for a different instrument. A solution could be found in appointing a
special rapporteur for minority issues instead of a special representative.40 The
rapporteur would work under the authority of the Secretary-General and would
base its activities on reports submitted under the human rights conventions or
reports written by NGOs. The Secretary-General would be able to send the
rapporteur on a field mission whenever he thinks that a certain situation deserves
the input of the rapporteur, thereby making use of his authority under article 99 of
the UN Charter.
This special rapporteur would strongly rely on the authority of the SecretaryGeneral instead of a specific mandate. An advantage lies in the fact that a mandate
is difficult to change, while the instrument of a special rapporteur could be
strengthened over time. Moreover, at present the establishment of a special
rapporteur would probably be easier to realise than the establishment of a UN
Special Representative.41
39
40
41
Zellner suggests that, ‘at a minimum, it would be necessary to give the activities of the HCNM
and the issue of implementation of his recommendations a working group of their own’. This
would indeed give more attention to the work of the HCNM. Ultimately, it could lead to a
greater awareness among the OSCE states that it is insurmountable for stability in Europe that
this institution is strengthened, on the financial level as well as on the capacity level, see W.
Zellner, ‘The High Commissioner on National Minorities: His Work, Effectiveness, and
Recommendations to Strengthen the High Commissioner as an Institution’, in: H. Gärtner, A.
Hyde-Price & E. Reiter (eds.), Europe’s New Security Challenges, Lynne Rienner Publishers,
2001, p. 286.
The choice between a special rapporteur or a special representative was also mentioned in
Recommendation I of the final recommendations adopted at the 8th session; the Commission
on Human Rights should consider ‘the possibilities of establishing a special procedure
mechanism on the rights … of minorities such as a special rapporteur or special
representative’.
Cassese writes the following on the instrument of a special rapporteur: ‘The system of country
or thematic special rapporteurs has gradually evolved to take account of special needs. Under
this procedure, the Commission on Human Rights entrusts either working groups of experts,
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Imagine, however, that the discussions on the mandate of a UN Special
Representative have been satisfactorily concluded. Subsequently, how should the
offices of the UN and the OSCE relate to each other? This is an interesting topic
which will not be examined at great length. However, some brief comments can
already be made.42 A duplication of work should be avoided at all costs in order to
maintain good relations with the States concerned, which obviously are not waiting
to be visited by a similar ‘quiet diplomat’ from a different organisation. However,
in a world of matured international organisations it should not be too difficult to
adapt the work of two important players in the field of minority rights in an
effective, constructive way.
In practice it would probably lead to the UN special representative staying out
of matters that are already being dealt with by his European counterpart.43
However, this could lead to the UN Special Representative being perceived as the
‘non-European minority man,’ a situation which is not enviable.
A possible solution could be to appoint regional High Commissioners for
each geographic region, with a UN instrument (albeit it a ‘Super High
Commissioner’ or a Secretariat) as the coordinating and/or supporting body.44
Recommendation 5 adopted at the Working Group 7th session already suggested
that ‘regional organizations should explore the possibility of establishing similar
institutions to that of the OSCE’s High Commissioner’. One advantage would be
that the lack of cultural notions (which need to be understood when tackling the
complex minority issues that come along the way) would not hamper the work of a
‘Minority Man,’ since each region would have its own representative.
Unfortunately, this scenario would probably only be realistic in an ideal world. The
42
43
44
or individual experts (variously designated as special rapporteurs, representatives, experts), or
even the UN Secretary-General or the UN High Commissioner for human rights, with the task
of examining, monitoring, and publicly reporting on the human rights situation in a certain
country, or on major human rights themes, wherever the relevant problems might occur. The
relevant rapporteurs may not only use information from any reliable source, but also make onsite country visits (provided the states concerned are agreeable).’ Especially these last words
would make it easier to agree upon the establishment of a special rapporteur instead of a
special representative. See A. Cassese, International Law, Oxford University Press 2001, p.
364.
In this regard it would be interesting to look into the work of both the OSCE Representative on
Freedom of the Media (who operates as an early-warning instrument on violations of freedom
of expression) and the UN Special Rapporteur on Freedom of Opinion and Expression. It goes
beyond the scope of this article to go into their work, although it seems that they work well
together, see in this regard the ‘Statement Regarding Key Issues and Challenges in Freedom
of Expression, Agreed by: Santiago Canton, OAS Special Rapporteur on Freedom of
Expression, Freimut Duve, OSCE Representative on Freedom of the Media, Abid Hussain, UN
Special Rapporteur on Freedom of Opinion and Expression, February 2000, issued by NGO
ARTICLE 19, for more information see http://www.article19.org/.
Van der Stoel once said that when other international actors were already engaged in a certain
situation, the usefulness of the involvement of the High Commissioner would be limited.
MRG also referred to the need to work in a cooperative manner; ‘The preventive activities
would be pursued by the Special Representative in cooperation with relevant UN bodies and
agencies, as well as regional institutions and mechanisms’.
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Rianne Letschert
would presumably not want to subject its ‘showpiece’ to a UN body (nor
would the Council of Europe like to be put out of action) nor, for that matter, would
an organisation like the Organisation for African Unity or the Organisation of
American States be willing to give up its ‘sovereignty’ in this matter or to allow an
‘outsider’ to intervene in their internal affairs.
Finally, the last question that needs to be answered, which is actually the first
question that should have been answered, has been saved to the end. Leaving aside
all the ‘obstacles’ indicated above concerning the discussions on the mandate, and
coordination and cooperation problems, should the UN in fact take steps ‘towards a
UN Minority Man’, in other words, is it desirable to have a UN instrument in this
field?
Given the enormous number of countries that are dealing with minority
issues, it would not be a bad idea if the UN entered into the field and took its
responsibility in this sensitive area.45 This UN Minority Man should have a
workable mandate, with the same freedom and power as the OSCE High
Commissioner, but bearing in mind the gaps and weaknesses in the latter’s mandate
and functioning. Key elements that should be incorporated in the mandate are,
among other things, the early-warning and early-action function, independence,
impartiality, confidentiality, and co-operation.
Moreover, the office should have enough resources and staff to perform its
task, and, more importantly, it should gain all possible support from States,
recognizing that it is in their power to make the world a better place in which to
live, for both majorities and minorities.
OSCE
45
Like John Packer mentions ‘there would seem to be scope to at least attempt to adapt this
experience [of the HCNM] and approach elsewhere in the world to the benefit of many’, p. 14,
J. Packer, ‘The Role and Work of the OSCE High Commissioner on National Minorities as an
Instrument of Conflict Prevention’, IPA Policy Report, Sharing Best Practices on Conflict
Prevention: The UN, Regional and Subregional Organizations, National and Local Actors.
Helsinki Monitor 2002 no. 4