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SYNERGIES IN MINORITY PROTECTION

There has recently been a remarkable growth in standard-setting with respect to the protection of minorities in international and European law. Layered on top of existing human rights standards relevant to minorities, these developments have resulted in a complex and multifaceted regime, but one which still does not amount to an integrated and coherent system of minority protection. In addition to providing an up-to-date account of the relevant standards and their development in practice, this collection breaks new ground by seeking to identify the extent to which some integration and coherence (synergy) is emerging as a result of the work of treatymonitoring bodies and other international institutions. Leading experts on the main instruments and institutions assess matters such as the application of similar principles, the emergence of common themes, explicit cross-referencing between treaty bodies and international institutions, and the development of similar working methods. k r i s t i n h e n r a r d is Associate Professor in the Department of Constitutional Law at Erasmus University, Rotterdam. r o b e r t d u n b a r is Reader in Law at the University of Aberdeen School of Law.

SYNERGIES IN MINORITY PROTECTIONEuropean and International Law Perspectives

Edited by KRISTIN HENRARD AND R O B E R T D U N B A R

CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, So Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521864831 Cambridge University Press 2008 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2009

ISBN-13 ISBN-13

978-0-511-50819-6 978-0-521-86483-1

eBook (NetLibrary) hardback

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

CONTENTS

Foreword page vii gudmundu r alfredsson Abbreviations 1 ix

Introduction 1 kristin henrard and robert dunbar

part a Minorities-specic instruments, provisions and institutions 21 2 The United Nations International Covenant on Civil and Political Rights: Article 27 and other provisions 23 martin scheinin The United Nations Working Group on Minorities 46 li-an n thio Postscript: The United Nations Independent Expert on Minority Issues 81 gay mcdougall The OSCE High Commissioner on National Minorities arie bl oed and rianne letschert The Council of Europes Framework Convention for the Protection of National Minorities 119 asbjrn eide 88

3

4 5

v

vi

c on te n ts

6

The Council of Europes European Charter for Regional or Minority Languages 155 robert dunbar Non-minorities-specic instruments, provisions and institutions 187 Developments relating to minorities in the law on genocide 189 william a. schabas The United Nations International Covenant on Economic, Social and Cultural Rights 213 mara amor martn est banez i i e The United Nations International Convention on the Elimination of All Forms of Racial Discrimination ivan garvalov The United Nations Convention on the Rights of the Child and Children Belonging to Minority Groups jaap e. doek UNESCOs Convention Against Discrimination in Education 297 fons cooman s A patchwork of successful and missed synergies in the jurisprudence of the ECHR 314 kristin henrard The many faces of minority policy in the European Union 365 bruno de witte and eniko horva th } Developments under the African Charter on Human and Peoples Rights relevant to Minorities 385 tim murithi Regional cooperation and minority issues in the Asia-Pacic region 401 erik friberg Index 425 249

part b 7

8

9

10

278

11

12

13

14

15

FOREWORD

During the last fteen to twenty years, several new instruments and monitoring and dialogue institutions and procedures have been added to the international minority protection regime. It now amounts to more than fty instruments and some dozen monitoring and dialogue institutions with minority-specic provisions. In addition, members of minorities are entitled to the equal enjoyment of all human rights and equal access to all implementation and monitoring procedures designed for human rights in general. Indeed, there has been a steady increase in the application of general human rights instruments for the protection of members of minority groups, and an increasing sensitivity to the needs of such persons. Hence, the reference to a minority protection regime rather than merely minority rights is most appropriate. The expansion of the minority protection regime has occurred relatively quickly, but it has been uneven and unorganised, with a variety of motivations behind the steps taken and with the involvement of several international organisations. Imposing minority rights on third states is distinctly easier than committing to them internally. Double standards appear in the foreign policies of states and these may also impact on international responses. Much of the recent attention has been securityoriented, with a focus on the prevention of violent conict in the short term, but the interest of states in minority rights tends to drop as soon as the threat of serious violence recedes, even when discriminatory patterns and practices persist. With this multitude of instruments and monitoring and dialogue procedures, it is not always clear what mandates are most likely to produce human rights and/or minority rights results benecial to minorities. In this book about minority protection, the editors have designed and produced a thematic volume in which several authors focus on the collaboration and useful overlaps between all these instrumentsvii

viii

foreword

and procedures. The editors have called attention to different types of possible synergies and devote special attention to three of them: express cross-referencing, substantive convergences, and the emergence of similar working methods. Differences in standards and their application have also been explored. And one should not forget the element of competition that certainly plays a role in the interaction, or lack of the same, between the various international institutions. The editors and authors also correctly identify and deal with some of the issues that are likely to characterise the debate and action on minority protection in the years to come. When do immigrant communities emerge as new minorities which merit protection as such? How can the situation of the Roma be improved? What is the interplay between individual and group rights and will the latter receive the emphasis they deserve? How can the mainstreaming of minority rights, for example, in the international development and nancial sectors, enhance the synergies under examination in the book? What role can interagency consultations accomplish? The book is a welcome addition to the human rights and minority rights literature. It contains not only valuable academic presentations but also offers, if sometimes only implicitly, useful guidelines for future work in this eld. gudmun dur alfredsson Chairman/Rapporteur of the UN Working Group on Minorities at its twelfth and nal session in 2006

ABBREVIATIONS

ACFC ACHPR African Charter ARF Article 27 ASEAN CADE CCR CEIWGM CERD/C CESR CHR COE CRC CSCE CT Declaration

Advisory Committee on the Framework Convention African Commission on Human and Peoples Rights African Charter on Human and Peoples Rights ASEAN Regional Forum Article 27 of the International Covenant on Civil and Political Rights Association of Southeast Asian Nations Convention Against Discrimination in Education Committee on Conventions and Recommendations Central European Initiative Working Group on Minorities Committee on the Elimination of Racial Discrimination Centre for Economic and Social Rights Commission on Human Rights Council of Europe Convention on the Rights of the Child Conference on Security and Co-operation in Europe Constitutional Treaty Declaration on Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities Committee of Experts on Issues Relating to the Protection of National Minorities Democratic Republic of Congo European Commission European Convention on Human Rights European Court of Justiceix

DH-MIN DRC EC ECHR ECJ

x

a b b r ev i a t i o ns

ECRI ECtHR EU FCNM Genocide Convention Hague Recs. HCHR HCNM HRC HRCl HRCm HREOC ICC ICCPR ICERD ICESCR ICTR ICTY ILO Languages Charter LN Lund Recs. MDGs MoU NGOs OAS OAU OECD OHCHR OIC

European Commission against Racism and Intolerance European Court of Human Rights European Union Framework Convention for the Protection of Minorities Convention on the Prevention and Punishment of the Crime of Genocide Hague Recommendations on the Education Rights of Ethnic Minorities High Commissioner for Human Rights Ofce of High Commissioner on National Minorities United Nations Human Rights Committee United Nations Human Rights Council United Nations Human Rights Commission Human Rights and Equal Opportunity Commission International Criminal Court International Covenant on Civil and Political Rights International Convention on the Elimination of all Forms of Racial Discrimination Interna

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