INTERNATIONAL
PROTECTION OF
MINORITIES: PAST AND
PRESENT
Julie Ringelheim
15 June 2013
OUTLINE
I.
General Overview of Minority Protection in
International Law
II.
Specific Regimes of Minority Protection :
OSCE, UN, EU
GENERAL OVERVIEW
1. Definition of Minority
2. Evolution of Minority Protection in International
Law
3. Security Approach v. Rights Approach
4. The Content of Minority Rights
1. DEFINITION OF MINORITY
No binding definition of the minority
concept in international law
« I know a minority when I see one » (Max van Der Stoel,
first OSCE HCNM).
But : generally agreed that a minority
required a combination of subjective
and objective elements.
1. DEFINITION OF MINORITY
2 types of Elements:
Objective
•


National, ethnic, cultural, religious and linguistic
characteristics different from the rest of the population
Minority position (numerical)
Subjective
•
•
Will the preserve the group identity.
FR. CAPOTORTI, SPECIAL RAPPORTEUR
« A group, numerically inferior to the rest of the
population of a State, in a non-dominant position,
whose members - being nationals of the State possess ethnic, religious or linguistic
characteristics differing from those of the rest of
the population and show, if only implicitly, a
sense of solidarity, directed towards preserving
their culture. »
Study on the Rights of Persons belonging to Ethnic,
Religious and Linguistic Minorities, 1977, UN Sub
Commission on the Prevention of Discrimination and
Protection of Minorities.
1. DEFINITION OF MINORITY
Contested aspects:





Citizenship (what about non-citizens?)
Durable ties with the territory (« new minorities »,
descendants of recent immigrants)
Regional minority (UN HRC: Ballantyne et al. V.
Canada but ACFC)
Loyalty to the country of residence?
Non-dominant position (what about co-dominant
groups?)
1. DEFINITION OF MINORITY
3 points established by all international
bodies dealing with minority protection:
-
Existence of a minority is a question of fact,
not of law
Label in domestic order is irrelevant:
community, group, indigenous people, etc.
No arbitrary distinctions
2. EVOLUTION MINORITY PROTECTION
IN INTERNATIONAL LAW
A. 1648: Peace of Westphalia


Focus on religious minorities
Non-systematic protection/no complaint mechanism
B. After WWI: League of Nations


Focus on national minorities
Bilateral treaties / int’l complaint mechanism
C. After WWII: United Nations


Focus on individual human rights
Art. 27 ICCPR / art. 30 CRC
D. 1989: End cold war - international codification of
minority rights
2. EVOLUTION MINORITY PROTECTION
A. RELIGIOUS MINORITIES

1648: Peace of Westphalia

Series of peace treaties that end the 30 years war

Principle established by these treaties: cuius regio, eius
religio. Each principe has the right to determine the
religion of his own state (Catholicism, Lutherianism or
Calvinism).

But : Catholics, Lutherians or Calvinist minorities, who
live in a state where their denomination is not the
established church, are granted the right to practice their
faith.
2. EVOLUTION MINORITY:
A. RELIGIOUS MINORITIES

1648: Peace of Westphalia

Other examples of provisions protecting religious
minorities between 17th-19th century.

General objective: to establish a modus vivendi
between Catholic and Protestant states in Europe.
2. EVOLUTION MINORITY PROTECTION:
B. NATIONAL MINORITIES



End of 19th century: rise of ‘national’ minorities
Closely linked to the emergence of the Nation-State
and nationalism
Nationalism : new principle of political legitimacy claims that:


All humanity is divided in distinct nations = groups united
by common language, history and traditions
Each nation is entitled to constitute its own state.
2. EVOLUTION MINORITY PROTECTION:
B. NATIONAL MINORITIES



Consequence: a state is considered legitimate to the
extent that it represents a nation.
=> Nationalism postulates the necessity of a
congruence between political and cultural borders.
End of 19th century: Nation-State model, based on
this principle, had become the dominant paradigm
of political organisation in Europe.
2. EVOLUTION MINORITY PROTECTION:
B. NATIONAL MINORITIES

Problem: in practice, in many places, the reality did
not coincide with the model:
Central and Eastern Europe in particular: vast
multi-ethnic Empires (Ottoman, Austro-Hungarian,
Russian Empires)
 « Appallingly complex patchwork of linguistic and
cultural differences » (E. Gellner)
 In such context, very difficult to assign each territory
to one and only one cultural-linguistic group.

2. EVOLUTION MINORITY PROTECTION:
B. NATIONAL MINORITIES




In practice: the principle of nationalities never accepted
as a principle of international law.
Borders were not drawn merely according to the location
of groups considered as national groups, impossible
anyway.
New states emerging in Europe included groups which
were not considered part of the nation. => groups
termed « national minorities ».
Given influence of nationalist thought : source a
instability.
2. EVOLUTION MINORITY PROTECTION:
B. NATIONAL MINORITIES
-
States could be tempted to realise the homogeneity
that the nation-state model postulates: either
through forced assimilation of through persecution
or expulsion of minorities.
-
This, in turn, could stir secessionist claims from
minorities or intervention of a kin-state. => Could
easily degenerate into war.
-
Solution promoted by Great powers : insertion of
minority provisions in treaties recognising new
states
2. EVOLUTION MINORITY PROTECTION: THE
LEAGUE OF NATIONS SYSTEM (1918)
-
Culminates end WWI (1918): borders of Europe are
reshaped.
-
Minority clauses inserted by the Allies in treaties
concluded with numerous states, newly created or
frontiers modified.
-
Novelty: international supervision mechanism set
up in the framework of the (newly created) League
of Nations.
2. EVOLUTION MINORITY PROTECTION: THE
LEAGUE OF NATIONS SYSTEM (1918)
-
1st International Supervisory Mechanism:
-
Main role: devolved to the Council of the League of
Nations, composed of states’ representatives.
-
But: protected minorities were granted a right of petition
(= complaint) and information with the Secretary of the
LN. The Secretary decided on their admissibility and could
transmit them to the Council.
-
In case of disagreement, the Council could seize the
Permanent Court of International Justice.
2. EVOLUTION MINORITY PROTECTION: THE
LEAGUE OF NATIONS SYSTEM (1918)
-
Importance of the League of Nations Minority
Protection System
-
First international supervisory mechanism of
minority protection
-
First example of an international system designed to
protect the rights (some) individuals. Moreover,
individuals were granted a right of petition before
international institutions.
-
PCIJ issued several opinions on minority protection
which are still referred to today
2. EVOLUTION MINORITY PROTECTION: THE
LEAGUE OF NATIONS SYSTEM (1918)
-
Pitfalls of the League of Nations Minority
Protection System
-
Minority obligations were imposed only on weak or
new states (no great powers, not even Germany or
Italy were concerned)
-
The supervisory mechanism were too dependent on
states
-
The system proved ineffective to protect minorities
from persecution
2. EVOLUTION MINORITY PROTECTION:
C. AFTER WWII
-
League of nations system of minority
protection: totally discredited.
-
Dominant idea in 1945:
- Now necessary to focus on building an
international system of protection of
universal and individual rights.
- Specific Minority protection considered
as an internal problem.
2. EVOLUTION MINORITY PROTECTION:
C. AFTER WWII
-
No minority clause in the Universal Declaratino of
Human Rights (1948)
-
Main achievement in relation to minorities between
1945 and 1989: article 27 of ICCPR
« In those states in which ethnic, religious or linguistic
minorities exist, persons belonging to such minorities shall
not be denied the right, in community with the other
members of their group, to enjoy their own culture, to
profess and practise their own religion or to use their own
language. »
NB : minority provision with universal coverage.
2. EVOLUTION MINORITY PROTECTION:
D. POST-1989
End of cold war
-
-
Fall of communist regimes in Central and Eastern
Europe
Fear of instability linked to national minority
issues
War in Yugoslavia (1991-1995)
Return of the national minority question on the
international agenda
Various initiatives in relation to minority protection
taken on the international scene, especially at the
European level.
2. EVOLUTION MINORITY PROTECTION:
D. POST-1989
1990 CSCE Copenhagen Document
1992
- UN Declaration on the Right of Persons belonging to
National or Ethnic, Religious and Linguistic Minorities
- OSCE High Commissioner on National Minorities
- European Charter for Regional and Minority Languages
1995 Framework Convention on the Protection of
National Minorities
2005 UN Independent Expert on Minority Issues
2007 UN Declaration on Indigenous Peoples
3. SECURITY V. RIGHTS APPROACH


Motivations of states for taking action at international
level to protect minorities have always been mixed: as
much (if not more) linked to security concerns as to
humanitarian or rights concerns
Preamble of Framework Convention
« Considering that the upheavals of European history have
shown that the protection of national minorities is essential to
stability, democratic security and peace in this continent
Considering that a pluralist and genuinely democratic society
should not only respect the ethnic, cultural, linguistic and
religious identity of each person belonging to a national
minority, but also create appropriate conditions enabling them
to express, preserve and develop this identity »
4. CONTENT OF MINORITY RIGHTS
Two pillars:
1. Formal equality and general human rights :
must enjoy general human rights on an equal
footing with the majority
2. Right to identity: right to express and preserve
their distinct identity (language, religion,
cultural traditions). Where necessary, this may
require special measures to ensure substantive
equality with the majority.
PERMANENT COURT OF INTERNATIONAL
JUSTICE, ADVISORY OPINION ON
MINORITY SCHOOLS IN ALBANIA, 1935
« The idea underlying the treaties for the protection of
minorities is to secure for certain elements incorporated
in a State, the population of which differs from them in
race, language or religion, the possibility of living
peaceably alongside that population and cooperating
amicably with it, while at the same time preserving the
characteristics which distinguish them from the majority,
and satisfying the ensuring special needs. In order to attain
this object, two things were regarded as particularly
necessary, and have formed the subject of provisions in
these treaties.
PERMANENT COURT OF INTERNATIONAL
JUSTICE, ADVISORY OPINION ON
MINORITY SCHOOLS IN ALBANIA, 1935
« The first is to ensure that nationals belonging to racial
religious or linguistic minorities shall be placed in every
respect on a footing of perfect equality with other
nationals of the State. The second is to ensure for the
minority elements suitable means for the preservation of
their racial peculiarities, their traditions and their
national characteristics.
These two requirements are indeed closely interlocked, for
there would be no true equality between a majority and
minority if the latter were deprived of its own institutions,
and were consequently compelled to renounce that which
constitutes the very essence of its being as a minority. »
4. CONTENT OF MINORITY RIGHTS:
INDIVIDUAL, COLLECTIVE OR GROUP
RIGHTS?
Rights recognised at international level in
relation to minorities are individual rights
(rights of persons belonging to minorities)
 Collective rights

Rights given to individuals in their capacity of members of
a certain group

Different from Group rights
Rights which are granted to groups as such
Group is the legal subject/bearer of the right
E.g.: autonomy granted to some minorities in domestic
law; UN Declaration on the Rights of Indigenous
Peoples
NB: terminology used not always consistent.