Background and Framework for the Protection of Minorities

The international protection of minorities dates at least from the 1648 Peace of Westphalia whereby special arrangements were agreed for Catholic, Lutheran, and Calvinist minorities. The contemporary corpus of ‘minority rights’ is much broader in scope and in detailed content which, importantly, confer rights for individuals and groups (as opposed to duties upon states to tolerate some minorities).

Minority rights perhaps more than some other human rights, given their collective nature,[1] lack a clear, agreed definition of the beneficiaries of the rights[2] and suffer from a well-known reluctance of states to recognize minority rights for fear that they could threaten the territorial integrity of states. As such, minority rights provide an example of development of an international human rights protection framework that requires enhanced deployment of international cooperation to accomplish the potential of this relatively thin but very important subset. As already noted, the normative framework at the universal level is characterized by a small number of ‘hard law’ treaty obligations embodied in a few articles of the universal human rights treaties dealing with the protection of the existence of a group, the elimination of discrimination and ensuring equality, and the protection of the cultural, linguistic, and religious distinctiveness of minority groups.10 At the universal level there are two key instruments that provide specific protection to ethnic, religious, and linguistic minorities, one of them being Article 27 of the International Covenant on Civil and Political Rights (1966) that guarantees the rights to persons belonging to ethnic, religious, and linguistic minorities in community with other members of the group to enjoy their culture, to profess their religion, and to use their language. These rights are essentially guaranteed to an individual, but the article maintains the collective dimension of protection of the identity of a minority group through the collective enjoyment of the minority culture and distinctiveness. The second instrument is a non-treaty-based text: the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities (the UN Declaration on Minorities), adopted unanimously by the UN General Assembly in 1992. Although the UN Declaration on Minorities (elaborating on Article 27 of the ICCPR, but not necessarily limited to it)n offered a more detailed content of the minority protection that states were ready to follow, including the specification of the positive obligation on the part of the state to realize those rights, the provisions remained general, with some important issues concerning minority claims unresolved (such as the right to autonomy). The 1992 Declaration is a reflection of a compromise attempting to strike a balance between the progressive attitude to provide a set of explicit minority rights and the preference of states to define minority rights sufficiently broadly to allow for wide state discretion. These are perhaps the reasons why the UN Declaration has not received wider attention and is much less used and invoked by its beneficiaries than, for instance, the 2007 UN Declaration on the Rights of Indigenous Peoples that provides more detailed guarantees and confirms the right of indigenous peoples to self-determination, recognizing subsistence rights and rights to land, territories, and resources.

A more progressive approach to minority rights has been taken within the regional context of Europe with the adoption of the legally binding Council of

Definition of Minorities’, in Universal Minority Rights: A Commentary on the Jurisprudence of the International Courts and Treaty Bodies, ed. M. Weller (Oxford: Oxford University Press, 2007): 49—71.

  • 10 As noted in the Introduction to this volume.
  • 11 M. Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary (Kehl: N. P. Engel, 1993): 480—505; A. Eide, ‘The Commentary to the UN Declaration on Minorities’, E/CN.4/Sub.2/ AC.5/2005/2, 4 Apr. 2005.

Europe’s Framework Convention for the Protection of National Minorities (1995) inspired by the OSCE political commitments that were formulated in reaction to the rise of nationalism in Europe in the post-Cold War environment. In this regard, it is not without significance to the discussion on the nature of international minority rights norms and standards that the most comprehensive minority rights standard-setting has taken place within the OSCE, an organization that is evidently political in nature and has consistently advanced the idea of its ‘commitments’ being ‘politically [and not legally] binding’^2 The political process of the OSCE reflects some beneficial attributes when it comes to norm development and respect or conformity (‘compliance’) thereof. For example, looking more specifically into minority rights standards, the OSCE was able to act quickly, not held back by debates about the legal definition of minorities and without being locked into a long period of treaty negotiation which would miss the political moment of, and opportunity at, the end of the Cold War. Indeed, the then Commission on Security and Cooperation in Europe (CSCE) was able to adopt the 1990 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (the Copenhagen Document) in a crucial period—a political opening—when human rights (including minority rights) and democratic governance in Central and Eastern Europe and the former Soviet Union became the major focus of European international relations. The OSCE was able to respond rapidly through a political process of norm-creation and standard-setting resulting in adoption in Copenhagen of a progressive, to-the-point, fairly detailed, and to this day the most comprehensive catalogue of minority rights. The so-called Copenhagen Document was quickly followed by other OSCE documents such as the 1990 Charter of Paris for a New Europe, the 1991 Geneva Report on National Minorities, the 1991 Moscow Document, 1992 Helsinki Document, and eventually the 1994 Budapest Document that formed the basis of the OSCE activities dedicated to protection of national minorities. Together, these instruments—this action—not only rapidly developed the norms and inspired standard-setting in other IGOs (some of it ‘hard law’) notably at the UN and Council of Europe (CoE), but they contributed to propelling the political change in a virtuous cycle which resulted in constitutional, legal, and institutional reforms in numerous states, conclusion of critical bilateral treaties, and ultimately substantially affected peace, stability, and sustainable development across Europe.

The function of ‘soft law’ as a precursor to creation of ‘hard law’ obligations through, for example, a treaty is manifest (as noted above) in how OSCE minority rights standards spurred creation of the FCNM and the European Charter for Regional or Minority Languages.[3] [4] The emergence of the FCNM is directly linked to recognition by states, expressed through their OSCE political undertakings, that protection of and respect for the rights of persons belonging to national minorities contributes to stability and peace within Europe. Specifically and expressly, the Vienna Summit of Heads of State and Government of the Council of Europe in 1993 decided to transform, to the greatest possible extent, these political commitments of the OSCE into legal obligations. The Preamble and the Explanatory Report to the FCNM directly links its provisions to particular paragraphs of the Copenhagen Document. In this regard the Copenhagen Document is, under international law (i.e. the Vienna Convention on the Law of Treaties, Articles 31 and 32) an authoritative source for interpretation of the FCNM. At the same time, by incorporating the normative content of political commitments adopted within the OSCE, the FCNM strengthens their effective implementation and increases the opportunities for their invocation.

Although both the Copenhagen Document and the Framework Convention provide to date the most progressive normative development, their soft nature has been often pointed out as ‘weakness’ or deficiency; in the case of the OSCE Documents, their lack of legally binding force, while in the case of the FCNM, the lack of direct applicability of the substantive provisions of the Convention before the state’s administrative and judicial authorities and the lack of international judicial control. A large number of the Framework Convention provisions are of a programmatic nature, requiring states to adopt their own domestic policies and legislation to implement the provisions. Some formulations are left (relatively) vague and were drafted as a compromise solution. However, they also aim to encompass the complexity of the differing minority situations, where minorities vary substantially in their minority characteristics, needs, and claims, as well as their settlement, numerical strength, or historic circumstances affecting their position within a state.[5] [6] In addition, fulfilment of minority interests and needs is often viewed as a politically charged and sensitive issue impacting majority-minority relations within a state and requiring dedication of the state’s financial and institutional resources (such as delivery of services and education in minority languages). 15 From the positivist point of view, such provisions provide a legal challenge. However, from the perspective of application of minority rights in practice, the programmatic provisions of the FCNM create an opportunity to devise appropriate policies through the political process and enable the diplomatic dialogue of the expert monitoring bodies to consider the fragile balance in majority-minority relations. Perhaps the greatest achievement of these normative developments is that the states are now internationally responsible for proactive realization of minority protection. Reviewing the past twenty-five years of existence and operation of minority rights norms and standards in Europe, the relative (if still far from perfect) success of compliance with the existing norms can be attributed to a number of factors. These include the more detailed elaboration of standards that the soft law norms could deliver in local contexts, and a process of continuous implementation of the commitments encouraged through political dialogue; the creation of expert dedicated bodies is also key, as will be demonstrated in some detail in the following part, focusing on the case of the OSCE HCNM.[7] [8]

  • [1] A. Rosas and M. Scheinin, ‘Categories and Beneficiaries of Human Rights’, in An Introductionto the International Protection of Human Rights: A Textbook, ed. R. Hanski and M. Suksi (Abo: AboAkademi): 49—61.
  • [2] J. Packer, ‘Problems in Defining Minorities’, in Minority and Group Rights in the New Millenium,ed. D. Fottrell and B. Bowring (The Hague: Brill, 1999): 223—73; H. Hannum, ‘The Concept and
  • [3] On the nature of the organization see more in: F. Evers, M. Kahl, and W Zellner, The Cultureof Dialogue: The OSCE Acquis 30 Years after Helsinki (CORE publication, Centre for OSCE ResearchInstitute for Peace Research and Security Policy at the University of Hamburg, 2005).
  • [4] On the nature and the character of the Charter, see: D. О Riagain, European Charterfor Regional orMinority Languages: Legal Challenges and Opportunities (Strasbourg: Council of Europe, 2008): 25—37.
  • [5] For detailed review of the FCNM’s nature, character, and obligations see: The Rights of Minoritiesin Europe: A Commentary on the European Framework Convention for the Protection of NationalMinorities, ed. M. Weller (Oxford: Oxford University Press, 2005).
  • [6] See the Explanatory Report to the FCNM, H(1995)010, paras 65-71.
  • [7] For more on factors affecting compliance with minority norms through the HCNM engagement see: Y. I. Diacofotakis, Expanding Conceptual Boundaries: The High Commissioner on NationalMinorities and the Protection of Minority Rights in the OSCE (Brussels: Bruylant, 2002): 139-42.
  • [8] Since the present incumbent is a woman we use ‘his or her’ and ‘she or he’ when discussing therole, actions, and accumulated experience and practice of the HCNM as an institution. Where thefocus is on actions or developments under previous male Commissioners, the masculine is used.
 
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