The United Nations Declaration on Minorities: An Academic Account on the Occasion of its 20th Anniversary (1992–2012)

421 Pages·2015·2.04 MB·English

by  Ugo Caruso

The United Nations Declaration on Minorities
Studies in International Minority
and Group Rights
Series Editors
Gudmundur Alfredsson
Kristin Henrard
Advisory Board
Han Entzinger, Professor of Migration and Integration Studies (Sociology),
Erasmus University Rotterdam, the Netherlands; Baladas Ghoshal, Jawaharlal
Nehru University (Peace and Conflict Studies, South and Southeast Asian Studies),
New Delhi, India; Michelo Hansungule, Professor of Human Rights Law,
University of Pretoria, South Africa; Baogang He, Professor in International
Studies (Politics and International Studies), Deakin University, Australia;
Joost Herman, Director Network on Humanitarian Assistance the Netherlands,
the Netherlands; Will Kymlicka, Professor of Political Philosophy, Queen’s
University, Kingston, Canada; Ranabir Samaddar, Director, Mahanirban Calcutta
Research Group Kolkata, India; Prakash Shah, Senior Lecturer in Law (Legal
Pluralism), Queen Mary, University of London, the United Kingdom; Tove
Skutnabb-Kangas, Åbo Akademi University, Dept. of Education, Vasa, Finland;
Siep Stuurman, Professor of History, Erasmus University Rotterdam, the
Netherlands; Stefan Wolff, Professor in Security Studies, University of
Birmingham, the United Kingdom.
VOLUME 9
The titles published in this series are listed at brill.com/imgr
The United Nations Declaration
on Minorities
An Academic Account on the Occasion of its 20th
Anniversary (1992–2012)
Edited by
Ugo Caruso
Rainer Hofmann
LEIDEN | BOSTON
Library of Congress Cataloging-in-Publication Data
The United Nations declaration on minorities : an academic account on the occasion of its 20th anniversary
(1992-2012) / edited by Ugo Caruso, Rainer Hofmann.
  pages cm -- (Studies in international minority and group rights ; volume 9.)
 ISBN 978-90-04-25155-7 (hardback : alk. paper) -- ISBN 978-90-04-25156-4 (e-book)
1. Minorities--Legal status, laws, etc. 2. International law and human rights. 3. United Nations. General
Assembly. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities. I. Caruso, Ugo, editor. II. Hofmann, Rainer, editor.
 K3242.U558 2015
 342.08'7--dc23
2014044572
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ISSN 2210-2132
ISBN 978-90-04-25155-7 (hardback)
ISBN 978-90-04-25156-4 (e-book)
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Contents
Foreword vii
  Rita Izsák
Selected Abbreviations xi
List of Contributors xiii
Introduction and Acknowledgements xvii
Ugo Caruso and Rainer Hofmann 
PART 1
History and Relevance of the Declaration in the Work
of the United Nations
1 Historical Background on the Declaration 3
Alan Phillips
2 Minority Rights and the United Nations 19
Gudmundur Alfredsson 
3 Article 27 iccpr 46
 A First Point of Reference
Ulrike Barten 
4 An Overview of the UN Declaration and Major Issues Involved 66
Asbjørn Eide
5 The United Nations Forum on Minority Issues and its Role
in Promoting the UN Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic
Minorities 87
Graham Fox 
PART 2
Challenges and Opportunities in the Implementation
of the Declaration 
6 Participation of Minorities in Constitution Building 109
Annelies Verstichel
vi Contents
7 The Enigma of Human Rights Responsibilities
 Religious Minorities and the UN Declaration on Minorities 137
Nazila Ghanea
8 The UN Declaration on Minorities’ Vision on ‘Integration’ 156
Kristin Henrard 
9 ‘New’ Minorities, Integration Policies and the UN Declaration
on Minorities 192
Stephanie E. Berry
PART 3
Regional Perspectives
10 The European Regime and the Applicability of the UN
Declaration 217
Tove H. Malloy
11 The 1992 UN Declaration on Minorities and the African
Human Rights System 253
Solomon A. Dersso
12 The Declaration and Its Guidance
 A View from South Asia 283
Joshua Castellino and Elvira Domínguez-Redondo
13 asean
 Background and Human Rights Mechanisms 306
Arie Bloed and Nicole Girard 
14 The UN Declaration and the Organization of American States 319
Alexandra Tomaselli
15 History Is Not a Destiny
 Minority Rights and Multiculturalism in the Arab World 333
Eva Pföstl
Appendices 351
Index 381
Foreword
In 2012 we marked the twentieth anniversary of the Declaration on the Rights
of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities
(hereinafter ‘the Declaration’). This anniversary offered an important and
timely opportunity for reflection about the challenges that remain in the field
of minority rights that still need to be addressed, but also about the progress
that has been achieved. The Declaration is an important international docu-
ment on minority rights that not only forms an essential part of the vital
catalogue of human rights standards that has informed nations and the inter-
national human rights regime, but has further contributed towards moving the
world, in many respects, in the right direction towards rights, equality and jus-
tice for all. In its Preamble, the Declaration states that the promotion and reali-
sation of the rights of minorities can contribute to the strengthening of
friendship and cooperation among peoples and States, enhance the political
and social stability of States, and is an integral part of the development of
society.
Twenty years after its adoption, in many countries, the principles of the
Declaration have been incorporated into constitutions, legislation, policies
and practice. The result can be seen in societies in which equality and non-
discrimination are considered to be part of the foundation of a just and fair
society and in which strenuous efforts are made to protect those principles for
all and to uphold the rights of minorities. While inevitably challenges remain,
in such countries persons belonging to a different ethnicity or religion and
those who speak a different language as their mother tongue are more likely to
feel secure, to be well integrated and able to take part fully in all aspects of
society, while also being able to practice their faith and use their language
freely and without hindrance.
However, I do believe that far greater attention must be given to the
Declaration in every region and in every country. Sadly, in many countries
across the globe, the situation is far from positive. Members of minorities are
discriminated against and excluded from many aspects of society. They fre-
quently live in the worst housing and living conditions and are poorly repre-
sented or consulted in the political life of the nation or decisions that directly
affect them. The Declaration says that States shall protect the existence and
the national or ethnic, cultural, religious and linguistic identity of minorities
and encourage conditions for the promotion of that identity. However, there
are minorities today that are under physical threat and, as history shows,
minorities are the most frequent victims of mass atrocities, expulsion and
viii Foreword
genocide. Today the rights and security of religious minorities is perhaps of
particular concern. But the existence of minorities can be under threat in other
ways too. Policies of assimilation rather than integration can result in some
minorities being unable to openly use or learn their mother tongue, or freely
practice their religion. Such policies threaten the identity and unique charac-
teristics, cultures and traditions of minorities and are contrary to the
Declaration as well as other human rights standards. The implementation of
the Declaration is therefore as important as ever, but it can seem like a very
distant prospect for the most disadvantaged minorities or those at risk. One of
the objectives in marking the twentieth anniversary is to inspire greater atten-
tion to the Declaration, to promote its implementation and remind ourselves
that each of us and all stakeholders—whether governments, human rights
bodies, non-governmental organisations (ngos) or associations, academia, or
individuals—have an important role to play. I believe that the un system must
also play its part in achieving that goal and has real potential to do so.
Today, we can perhaps claim to have stronger un mechanisms for the protec-
tion of minorities than has previously been the case. As the un’s Special
Rapporteur on Minority Issues, it is my responsibility to promote implementation
of the Declaration in direct consultation with States and through a variety of
activities that I can undertake as a thematic human rights mandate holder, includ-
ing conducting country visits and sending communications to Governments.
These are valuable opportunities to engage directly with States on issues of con-
cern and to seek engagement with them or to provide assistance to them.
I feel honoured to have the responsibility to guide the work of the United
Nations Forum on Minority Issues (hereinafter ‘the Forum’) and prepare its
annual meetings. The Forum is proving to be an extremely valuable mecha-
nism of the un system dedicated to minority rights and for the consideration
of important minority issues since its creation by the Human Rights Council in
2007. The Forum offers an essential platform for dialogue on minority issues
and a space within the un system for minorities to discuss their challenges, and
to also propose solutions. The Forum has gone from strength to strength
and now attracts the participation of more than 400 participants at every ses-
sion, including more than 80 States from all regions and hundreds of minority
representatives and ngos. To date, the Forum has produced valuable recom-
mendations on minorities and the right to education, effective political par-
ticipation, effective participation in economic life, and guaranteeing the rights
of minority women and girls—all issues that minorities themselves have high-
lighted as being of great concern to them. In 2012, the Forum focused on imple-
menting the Declaration in practice with a particular emphasis on identifying
successful and effective practices in its twentieth anniversary year.
Foreword ix
In 2013 the United Nations Secretary-General provided further impetus for
the promotion of minority rights by producing a Guidance Note on racial dis-
crimination and the protection of minorities. This valuable document rein-
forces the principles contained in the Declaration and provides essential
guidance and recommendations for the un system. This clearly demonstrates
the Secretary-General’s commitment to ensuring that the United Nations
remains at the forefront of such efforts and will be an important resource for
the un and others. A un Network on Racial Discrimination and Protection of
Minorities has also been created to enhance dialogue and cooperation between
relevant un bodies and I am confident that the network members will con-
tinue building on the work of my mandate and the many important recom-
mendations that have emerged from the Forum.
Governments ultimately have the greatest responsibility to protect all
human rights and to promote and implement the Declaration. They must be
aware of those obligations and every Government should examine its own per-
formance on minority rights and assess the extent to which it is truly fulfilling
its commitments. Governments should evaluate their legislation and policies
to make sure that they are consistent with the Declaration and that they work
effectively to protect the rights of minorities. They should gather and study
essential disaggregated data on the situation of minorities, which allows for
problems to be identified and targeted policies and programmes to be adopted
and applied, where necessary. This is important in enabling States to recognise
the extent and nature of the problems that minorities face. It also assists them
in their efforts to implement the Declaration and establish effective and sus-
tainable solutions for minorities.
In my report to the General Assembly in 2012 I stated that I believe the posi-
tive requirements of the Declaration are best achieved through a national
institutional and policy framework incorporating targeted attention to minor-
ity rights. Dedicated institutional attention provides necessary impetus for
proactive implementation of minority rights, positive measures, consultative
and participatory mechanisms and processes and activities directed towards
disadvantaged minorities, which are frequently lacking. While strong minority
rights and non-discrimination law is an essential foundation for all countries,
too often an implementation gap exists that must be overcome. Establishing
institutional attention provides the logical next step from legislation to con-
crete action.
In almost every State much more must be done to raise awareness about all
human rights standards, with the Declaration amongst them. I think it is essen-
tial to begin with education. Minorities must know their rights in order to
claim them effectively. We must step up our efforts to promote human rights
x Foreword
education and ensure that it is on the curriculums of schools in all regions,
providing all children and adults alike with a strong basis of knowledge about
what human rights and minority rights are and what are the responsibilities of
Governments. Without such education we will always be hampered in our
efforts to promote the rights of minorities and minorities will be hampered in
claiming their rights.
In our efforts to create awareness of the Declaration we must also embrace
new technology that provides incredible opportunities to reach out to and
connect with vast audiences globally, especially young people. Social network-
ing, for example, offers new and creative possibilities to inform people about
the Declaration and to encourage discussion and sharing of positive initiatives.
I think that we in the human rights community should use such opportunities
to the full extent and, to that end, I have established Facebook and Twitter
pages for my mandate that help me promote the Declaration and connect with
minorities and others interested in minority issues worldwide.
In my report to the Human Rights Council in 2012 I also discussed the role of
minorities themselves in actively advocating for their rights. Minorities and
the non-governmental organisations working with and on behalf of them have
a vital role to play in bringing attention to the Declaration and promoting its
implementation nationally. It is minorities who are active in their own coun-
tries and regions in support of their rights who frequently achieve the greatest
results and the real changes that improve the lives of people in their communi-
ties. So we must be better at putting the Declaration and all of the tools,
resources and recommendations inspired by it into the hands of minorities
themselves and assisting them to use them.
I would like to congratulate the European Centre for Minority Issues (ecmi)
for its important work in expanding our knowledge on minority issues and for
making minority rights function in practice since the establishment of the
organisation in 1996. With their research, advisory services and reliable and
objective documentation, we know more and can do more to protect minority
rights. I believe that this publication will also help various decision-makers
and stakeholders to recognise the potential of the un Declaration on
Minorities and the benefits that it can bring if fulfilled in practice.
Rita Izsák