Minority Rights A Guide for Advocates - Refworld

185 Pages·2013·1.45 MB·English

Promoting and Protecting
Minority Rights
A Guide for Advocates
Designed and printed by the Publishing Service, United Nations publications
United Nations, Geneva — GE.13-40538 Sales No. E.13.XIV.1
July 2013 — 3,452 — HR/PUB/12/7 ISBN 978-92-1-154197-7
Promoting and Protecting
Minority Rights
A Guide for Advocates
Geneva and New York, 2012
ii PROMOTING AND PROTECTING MINORITY RIGHTS
Note
The designations employed and the presentation of the material in this publication do not imply
the expression of any opinion whatsoever on the part of the Secretariat of the United Nations
concerning the legal status of any country, territory, city or area, or of its authorities, or concerning
the delimitation of its frontiers or boundaries.
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Symbols of United Nations documents are composed of capital letters combined with figures.
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HR/PUB/12/7
Sales No. E.13.XIV.1
ISBN 978-92-1-154197-7
eISBN 978-92-1-056280-5
© 2012 United Nations
All worldwide rights reserved
Minority rights focus in the United Nations iii
Foreword
I am delighted that this publication, Promoting and Protecting Minority Rights: A Guide for
Minority Rights Advocates, comes before you as we celebrate the twentieth anniversary of the
adoption of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious
and Linguistic Minorities.
This anniversary gives us the opportunity to look back on the 20 years of promoting the Declaration
and use that experience to plan and strategize for the future, to decide how best to bring this
Declaration further to the fore of human rights discussions taking place all over the world and
discuss its implementation. It is our hope that the Guide will be a true vade mecum, assisting civil
society to engage even more effectively in this important and immense task.
Whether we are talking about democracy-building following the uprisings in North Africa and
the Middle East or ensuring human rights in the context of the global economic downturn; about
sustainable development in the context of the 2012 United Nations Conference on Sustainable
Development (“Rio+20”) or about guaranteeing effective participation of minorities, including
minority women and girls, in all spheres of life, worldwide; minority issues need to maintain their
rightful place on the agendas of decision makers.
In this anniversary year, my Office is increasing its engagement on minority rights even further. We
are organizing a series of subregional and regional events to address most topical minority issues
and we pursue a range of awareness-raising activities. We are taking the lead in the formation
and coordination of the United Nations Network on Racial Discrimination and Protection of
Minorities, a new platform aiming to enhance cooperation and dialogue on minorities across
the United Nations system. All this is in addition to already established work on minority rights,
which includes field-presence engagement on minority issues, capacity-building for minority
rights activists through the Minorities Fellowship Programme, supporting the mandate of the
Independent Expert on minority issues and the annual Forum on Minority Issues. Please visit our
website to make sure you have all the latest information on these activities.
It is our role as human rights defenders to ensure that the rights of national or ethnic, religious
and linguistic minorities are highlighted and taken into account. We hope that this Guide will
prove to be a valuable tool for minority rights advocates, helping them place minority rights on
the agenda, where this has not yet been done, or make sure they stay there and are adequately
addressed.
In the international, regional and national discussions framed by the “all human rights for all”
principle, we must work together to make sure that minorities are not left out. Towards this end,
the Guide explains, in a reader-friendly way, who are the main actors working on minority
issues in the United Nations and in key regional organizations, and what are the best ways of
engaging them.
Minorities enrich the societies of each and every country in the world. Through working on
guaranteeing their rights, our chief aims must be that no one will be afraid to self-identify as
a member of a minority, fearing disadvantage will come out of that decision; that persons
belonging to minorities will be guaranteed protection of their existence and identity; and that
they will benefit from the principles of effective participation and non-discrimination. Let this
publication guide us in working towards making this a reality for all persons belonging to
minorities, everywhere.
Navi Pillay
United Nations High Commissioner for Human Rights
Acknowledgements
The Office of the United Nations High Commissioner for Human Rights wishes to express its
sincere thanks to Hurst Hannum, Professor of International Law at the Fletcher School of Law and
Diplomacy, for his valuable contribution to the preparation of this Guide. In addition, special
mention and thanks are due to our United Nations partners and regional organizations that have
contributed to the publication.
Minority rights focus in the United Nations v
Contents
Page
Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PART ONE – MINORITY RIGHTS FOCUS IN THE UNITED NATIONS
Chapters
I. Overview: development of minority rights in international law . . . . . . . . . . . . 2
II. The Office of the United Nations High Commissioner for Human Rights . . . . . . 8
III. The United Nations Human Rights Council and its subsidiary bodies . . . . . . . . 21
IV. The United Nations special procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
V. Human rights treaty bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
PART TWO – OTHER RELEVANT BODIES IN THE UNITED NATIONS SYSTEM
VI. The United Nations Development Programme . . . . . . . . . . . . . . . . . . . . . . . . 64
VII. The United Nations High Commissioner for Refugees . . . . . . . . . . . . . . . . . . 67
VIII. The United Nations Children’s Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
IX. The International Labour Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
X. The United Nations Educational, Scientific and Cultural Organization . . . . . . . 80
PART THREE – REGIONAL SYSTEMS
XI. The human rights system of the African Union . . . . . . . . . . . . . . . . . . . . . . . . 90
XII. The Council of Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
XIII. The Organization for Security and Co-operation in Europe . . . . . . . . . . . . . . 123
XIV. The European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
XV. The inter-American human rights system . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Annexes
I. Core documents
Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Commentary to the United Nations Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities of
the Working Group on Minorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
II. Useful websites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

Minority rights focus in the United Nations 1
INTRODUCTION
Today, issues related to the rights of persons belonging to minorities may be found in nearly
every human rights instrument and forum. The United Nations and other intergovernmental
organizations recognize that minority rights are essential to protect those who wish to preserve
and develop values and practices which they share with other members of their community. They
also recognize that members of minorities make significant contributions to the richness and
diversity of society, and that States which take appropriate measures to recognize and promote
minority rights are more likely to remain tolerant and stable.
The present Guide offers information related to norms and mechanisms developed to protect
the rights of persons belonging to national, ethnic, religious or linguistic minorities. It includes
detailed information about procedures and forums in which minority issues may be raised within
the United Nations system and in regional systems. By focusing on the work related to minorities
and by also covering selected specialized agencies and regional mechanisms, the present
Guide complements information contained in Working with the United Nations Human Rights
Programme: A Handbook for Civil Society (OHCHR, 2008), which provides practical guidance
on the United Nations human rights mechanisms in general.1 The information contained in the
Guide is accurate as of 1 January 2012.
It is hoped that this Guide will be useful in assisting minority advocates to make full and effective
use of existing international mechanisms and, ultimately, to promote and protect the rights
guaranteed under international instruments.
1 Available from www.ohchr.org/EN/AboutUs/CivilSociety/Pages/Handbook.aspx (accessed 29 November
2012). The Handbook is available in Arabic, Chinese, English, French, Russian and Spanish; online, it is also
available in Farsi, Georgian and Nepali. An associated DVD was produced in 2011.
1
2 PROMOTING AND PROTECTING MINORITY RIGHTS
PART ONE
MINORITY RIGHTS FOCUS IN THE UNITED NATIONS
CHAPTER I
OVERVIEW:
DEVELOPMENT OF MINORITY RIGHTS IN INTERNATIONAL LAW
Summary: The first significant attempt to identify internationally recognized minority rights was
through a number of “minority treaties” adopted under the auspices of the League of Nations.
With the creation of the United Nations, attention initially shifted to universal human rights
and decolonization. However, the United Nations has gradually developed a number of norms,
procedures and mechanisms concerned with minority issues, and the 1992 United Nations
Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic
Minorities is the fundamental instrument that guides the activities of the United Nations in this
field today.
The concepts of “minority” and “majority” are relatively recent in international law, although
distinctions among communities have obviously existed throughout history. Some political systems
did grant special community rights to their minorities, although this was not generally based on
any recognition of minority “rights” per se. The millet system of the Ottoman Empire, for example,
allowed a degree of cultural and religious autonomy to non-Muslim religious communities, such
as Orthodox Christians, Armenians, Jews and others. The French and American revolutions
in the late eighteenth century proclaimed the free exercise of religion as a fundamental right,
although neither directly addressed the broader issue of minority protection. The 1815 Congress
of Vienna, which dismantled the Napoleonic Empire, recognized minority rights to some extent,
as did the 1878 Treaty of Berlin, which recognized special rights for the religious community of
Mount Athos.
Most international legal-political concerns during the nineteenth century, however, were
directed towards justifying the unification of linguistic “nations” based on the principle of self-
determination, rather than the protection of minority groups as such. As the lure of nationalism
grew, people who did not share the ethnic, linguistic or religious identity of the majority within
their country were increasingly under threat. The consolidation of States along linguistic lines,
expansion of trade and increasing need for literate populations who could work successfully in
the context of the industrial revolution placed pressures on smaller or less powerful communities
to conform to dominant linguistic and cultural norms. By the time of the outbreak of the First
World War in 1914, national or minority concerns were at the forefront of international politics,
at least in Europe.
The League of Nations
Following the end of the First World War, minority issues became a central concern for the
League of Nations. A series of so-called minority treaties was adopted to protect certain specified
groups, addressing many of their key concerns.
Minority rights focus in the United Nations 3
Among the protections commonly included were the rights to equality and non-discrimination; the
right to citizenship if a person commonly resident in a new State (or a State with new borders)
so wished; the right to use one’s own language in public and private; the right of minorities
to establish their own religious, cultural, charitable and educational institutions; an obligation
on the State to provide an “equitable” level of financial support to minority schools, in which
instruction at the primary level would be in the minority’s mother tongue; and entrenchment of
laws protecting minorities so that they could not be changed by subsequent statutes.
Although the supervisory system established by the League was political rather than legal and
did not permit aggrieved minorities to engage States on an equal or adversarial footing, it
did provide certain oversight through the League’s Secretariat. Almost any person or group
could bring a situation to the attention of the League and the Secretariat could also investigate
situations on its own initiative. The ultimate sanction was public discussion in the League Council
and, potentially, the adoption of a resolution calling upon a State to take particular action. Some
treaties, such as that which created the Free City of Danzig, provided for access to the Permanent
Court of International Justice (the predecessor of today’s International Court of Justice), and the
Court delivered a number of important advisory opinions on minority issues.2
Although the scope of minority treaties was limited – they applied only to a small number
of defeated or new States and there was no agreement that minority rights were universally
applicable – their significance should not be underestimated. They had concrete implications
for minorities within the State, and they constituted an important step in the development of
international minority rights and human rights law. In particular, the acceptance of the principle
of international interest in and supervision of the fate of minorities within States was a major
breakthrough in the development of international law, which in some ways presaged the later
promotion of broader human rights by the United Nations.
The United Nations
The Charter of the United Nations makes no mention of minority rights per se, but it does
include several provisions on human rights, including Article 1 (3), which identifies as one of the
purposes of the United Nations the achievement of international cooperation “in promoting and
encouraging respect for human rights and for fundamental freedoms for all without distinction as
to race, sex, language, or religion”.
In 1948, the General Assembly adopted the Universal Declaration of Human Rights, which
articulated the content of human rights in much greater detail and remains one of the most
important international human rights documents: its anti-discrimination provisions and other
articles are of central importance also for persons belonging to minorities. While the General
Assembly was unable to agree on any formulation in the Declaration concerning minority rights
per se, it did note that the United Nations “cannot remain indifferent to the fate of minorities”. It
added, in the same resolution that proclaimed the Universal Declaration, that it was “difficult to
adopt a uniform solution for this complex and delicate question [of minorities], which has special
aspects in each State in which it arises.”3
2 See, in particular, Permanent Court of International Justice, Rights of Minorities in Upper Silesia (Minority
Schools), Germany v. Poland, Judgment No. 12, 26 April 1928; Questions Relating to Settlers of German
Origin in Poland, Advisory Opinion, Series B No. 6, 10 September 1923; The Greco-Bulgarian “Communities”,
Advisory Opinion, Series B No. 17, 31 July 1930; Access to German Minority Schools in Upper Silesia,
Advisory Opinion, Series A./B. No. 40, 15 May 1931; Minority Schools in Albania, Advisory Opinion, Series
A./B. No. 62, 6 April 1935.
3 Resolution 217 C(III).