Paradox of minority protection
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Transcript Paradox of minority protection
The OSCE HCNM and the
FCNM in the context of other
approaches towards minorities
and indigenous peoples.
Anna Meijknecht ([email protected])
Tilburg University, The Netherlands
16 June 2010, Galway
Outline
OSCE HCNM
STRUGGLE
PARADOX
APPROACHES
EFFECT
---- Extra: COE
The OSCE
High Commissioner on
National Minorities
(HCNM)
http://www.osce.org/hcnm
OSCE Area
56 Participating States
Comprehensive and cooperative approach:
* three dimensions of security →
political/military; economic/environmental;
human dimension
all 56 States enjoy equal status → decisions are
taken by consensus on a politically, not legally
binding basis
OSCE Documents
Helsinki Final Act (1975)
Madrid Concluding Document (1983)
Vienna Concluding Document (1989)
Copenhagen Document (1990)
Charter of Paris for a new Europe (1990)
Moscow Document (1991)
Geneva Expert Meeting on National Minorities
(1991)
Helsinki Document ‘Challenges of Change’
(1992)
High Commissioner on National
Minorities
Mandate
To provide ‘early warning’ and, as appropriate,
‘early action’ at the earliest possible stage in
regard to tensions involving national minority
issues which have not yet developed beyond an
early warning stage, but, in the judgment of the
HCNM, have the potential to develop into a
conflict within the OSCE area
Early warning: two functions
1) To try to contain and de-escalate
tensions;
2) Alerting the OSCE Permanent Council
whenever such tensions threaten to develop
to a level at which he cannot contain them
with the means at his disposal
Characteristics
Independence
and Impartiality
Confidentiality
Cooperative attitude
Non-confrontational
Working Methods
Country visits
Initiating and maintaining dialogue
Project work
Recommendations:
- country specific
- general
HCNM Guidelines
also main themes of HCNM involvement)
Hague Recommendations regarding Educational Rights of National
Minorities (1996)
Oslo Recommendations on the Linguistic Rights of National
Minorities (1998)
Lund Recommendations on the Effective Participation of National
Minorities in Public Life (1999)
Guidelines on the Use of Minority Languages in the Broadcast Media
(2003)
Recommendations on Policing in Multi-Ethnic Societies (2006)
Bolzano/Bozen Recommendations on National Minorities in InterState Relations (2008)
Limitations mandate
HCNM will not consider national minority issues
in the State of which he is a national or involving
a national minority to which he belongs; only if all
parties agree;
HCNM will not consider situations involving
organized acts of terrorism;
HCNM will not consider individual cases.
Future for the OSCE / HCNM?
Influence EU accession / Copenhagen
Criteria
More attention to racism, xenophobia and
anti-Semitism?
Attention for issues of ‘new’ minorities?
Cooperation!!
CONCLUSION?
THE STRUGGLE OF STATES
WITH MINORITIES AND IP
WHO/WHAT?
WHY?
HOW? - approaches
WHO? - paradox - process
RESULT?
HOW?
Diff. Approaches
Assimilation
Integration
Paradox of minority protection
Internationalization (LoN ect. )
- process of minority protection
International standardsetting (how?)
Granting Rights (what kind?)
Protection of language or culture
Paradox of minority protection
Sovereign
states, who themselves
pose the greatest danger to
minorities and indigenous
peoples, are entrusted with their
protection
Internationalization
PROCESS OF MINORITY PROTECTION
1) (LoN, VN, CoE, EU, OSCE, OAS, ASEAN etc.)
Development of standards
Adoption of document
Ratification
2) (States)
Implementation:
Constitution
National legislation
Policy measures
Regional
Local
3) Community
Minority (individuals): “reality”
DIFFERENT APPROACHES
UN : individual
HRC : indivdual +
UNESCO: Diversity
HCNM: prevention
COE: Margin of appreciation
INDIGENOUS PEOPLES: collective
UNITED NATIONS
UN renounced the notion of group rights
and group identity.
No reference to minorities in UDHR
Instead: human rights
Article 27 ICCPR
Other relevant UN Conventions?
Human Rights Committee
HRC monitors the implementation of the ICCPR:
State reports (art. 40 ICCPR)
Inter-State complaints procedure (art. 41 ICCPR)
Optional Protocol to the ICCPR established the
individual complaints procedure
General Comments (e.g. No. 23)
Article 27
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 the group, to enjoy their
own culture, to profess and practice their
own religion, or to use their own language.
UNESCO
Cultural
Diversity
Heritage
Language.
http://www.unesco.org/culture/ich/index.php?pg=00206
The OSCE
High Commissioner on
National Minorities (HCNM)
The Council of Europe and
Minority Rights
The ECHR - Art. 14
The European Charter for Regional or
Minority Languages
(in force 1998)
The Framework Convention for the
Protection of National Minorities
(in force 1998)
Minority Case Law ECHR
Articles
Linguistic minorities
Religious Minorities
Roma
Significance?
The European Charter for
Regional or Minority
Languages
Purpose: cultural
Definitions
Scope: traditionally used within a state’s
territory. No dialects or languages of
migrants
A la carte commitments
Reporting system
Framework Convention
for the protection of National
Minorities
http://www.coe.int/t/dghl/monitoring/minorities/1_AtGlance/PDF_MapMinorities_bil.pdf
Why?: “essential to stability, democratic
security and peace in this continent’’.
Ratifications: also non-COE members!
Specific features of the framework
convention
Relation to Human Rights (Case-law ECHR)
No definition
No collective rights
Difference FC-Convention
Programme-type provisions
Not directly applicable
Margin of appreciation (art. 14)
Framework Convention a
Mockery?
Arguments
pro / contra FC
Success or failure FC depends on
its supervision / monitoring
mechanism
DIFFERENT APPROACHES
UN : individual
HRC : indivdual +
UNESCO: Diversity
HCNM: prevention
COE: Margin of appreciation
INDIGENOUS PEOPLES: collective
WHAT ABOUT INDIGENOUS
PEOPLES?
Approach:
Treaties with Indigenous Peoples
history, terra nullius, colonization, treaties
Treaties on Indigenous Peoples
definitions, international documents
Cooperation with Indigenous Peoples
instruments and fora
Thus: A COME BACK
Representative of the International
Treaty Council:
‘Within our Indigenous Nations, the collective good of the
peoples is paramount over the rights of the individual. That
is not to say that the rights of the individual are not
respected. On the contrary, the rights of the individual are
respected as long as they do not take away from the
collective good of the People. This premise is the very key
to the survival of not only our Peoples, but the survival of
the planet as a whole. The huge problems in this world with
the environment are caused in most part by individuals who
are not respecting the right to life of peoples as a whole.’
Relevant Documents
Article 27 ICCPR
ILO Conv. (107) 169: Convention
Concerning Indigenous and Tribal
Peoples in Independent Countries
http://www.unhchr.ch/html/menu3/b/62.htm
UN Declaration on the Rights of
Indigenous Peoples 2007
http://www.un.org/esa/socdev/unpfii/en/drip.html
III. Cooperation with Indigenous
Peoples
UNDRIP
UN Special Rapporteur on the
Situation of Human Rights and
Fundamental Freedoms of Indigenous
People
UN Permanent Forum on Indigenous
Issues
EFFECT?
PROCESS OF MINORITY PROTECTION
1) (LoN, VN, CoE, EU, OSCE, OAS, ASEAN etc.)
Development of standards
Adoption of document
Ratification
2) (States)
Implementation:
Constitution
National legislation
Policy measures
Regional
Local
3) reality
Community (Ind. Peoples)
Minority (individuals)
Effect?
ASSESSMENT? ANY PROBLEMS?
League of Nations - history
UN- HRC? - pressure
OSCE? – unknown….
COE- FCNM? – definition
EU? - ?? Roma??
UNESCO? – nice work, sophisticated, diversity
ASEAN? - non-interference, diversity
INDIGENOUS PEOPLES – UNPFII, IACHR –
implementation
Vote?
SOLUTION?
UN Special Rapporteur on the Situation of Human
Rights and Fundamental Freedoms of Indigenous
People
Professor Rodolfo Stavenhagen (Mexico) 2001-2008. Now:
James Anaya (USA)
http://airtrust.wordpress.com/dvd/ (chapter 6)
Mandate
The Special Rapporteur's mandate is:
·
To gather information and communications from all relevant sources –
including governments, indigenous peoples and their communities and
organisations – on violations of human rights and fundamental freedoms of
indigenous peoples.
·
To formulate recommendations and proposals on measures and
activities to prevent and remedy violations of the basic human rights and
fundamental freedoms of indigenous peoples.
·
To work in close contact with other special rapporteurs, special
representatives, working groups and independent experts
To investigate specific human rights complaints.
Conclusions?
Struggle solved?
FOR STATES: YES…no….
FOR MINORITIES/ INDIGENOUS
PEOPLES?
3 STAGES….why, who, how.. (answers
known?)
KEYWORDS FOR NEXT STAGE ?
The European
Union and
Minority Rights
EU approach?
(Stick and) Carrot?
Double standards?
External policy: Accession
Copenhagen 1993
Agenda 2000+Annual Reports
Association Agreements
Internal EU policy:
Article 6 par. 2 TEU
Article 12 and 13 TEC
Race-equality Directive 2000/43/EC and
employment Directive 2000/78/EC
Article 151 TEC
Artt. 21 and 22 European Charter of
Fundamental Rights (diversity)
Article 1-a Lissabon Treaty
The Union is founded on the values of respect for
human dignity, freedom, democracy, equality, the
rule of law, respect for human rights, including
the rights of persons beloning to national
minorities. These values are common to the
Member States in a society in which pluralism,
non-discrimination, tolerance, justice, solidarity
and equality between women and men prevail.
Conclusion
EU: refers to standards as developed by
other international organizations: Council of
Europe and OSCE
EU: no instrument on minority protection at
community level: only indirectly: nondiscrimination
Both pre-accession and post-accession
monitoring is required