Questions Addressed

While minorities and indigenous peoples have been subject to the most far-reaching international norms pertaining to various groups, acknowledgement in international documents of the need to protect the special features of these groups as an enrich-ing factor in societies is nevertheless a rather recent development. Whilst the adop-tion of the ICCPR in 1966 and the incorporaadop-tion of article 27 thereof constituted an important development in the area of international minority-specific norms, and although the ILO had addressed the situation of indigenous peoples in conclud-ing Convention No. 107 already in 1957, prior to 1989 there were no positive pro-nouncements incorporated in international instruments on the need to protect, let alone take any promotional actions to support, minority and indigenous cultures.

This situation changed when the CSCE states adopted commitments on national minorities in 1989 and 1990 and the ILO adopted the text of Convention No. 169 on Indigenous Peoples in 1989. Subsequently, the UN and the CoE became active in adopting standards for the treatment of minorities, and the pertinent norms en-acted by these organisations came to echo the OSCE norms adopted earlier. This change of policy in the direction of adopting specific norms on minorities and in-digenous peoples – essentially a departure from the earlier attitude of states that did not favour singling out minorities in the texts of international documents – coin-cided with the end of the Cold War.

The international norms on minorities and indigenous peoples combine two ele-ments, or pillars, of protection: they underline ensuring general human rights to persons belonging to minorities and indigenous groups without discrimination and refer to the measures to be taken to protect and even promote the specific charac-teristics of these groups. The first pillar ensures that persons belonging to minorities and indigenous peoples receive all of the other protection without regard to their status as a minority or indigenous peoples and the second constitutes recognition of the insufficiency of the first pillar for the protection of minority and indigenous cul-tures.⁴⁵⁶ The latter is considered necessary, because a pure non-discrimination norm could have the effect of forcing persons belonging to minorities and to indigenous peoples to adhere to the majority culture, effectively denying them their rights to identity by treating them just like members of the majority or the dominant group.

456. The insufficiency of the prohibition of discrimination is most pointedly noted in the CoE Language Charter.

The second pillar also represents real “added value” and a benefit to minority and indigenous rights (going beyond the mere prohibition of discrimination).⁴⁵⁷

The substantive questions raised in the international minority-specific norms focus on culture, language, education, religion, contacts, identity, and participation. The question of tolerance has also been addressed.⁴⁵⁸ Of these issues, language, educa-tion, participaeduca-tion, and identity seem to be particular concerns.

The possibility to use minority languages both in private and public has been un-derlined in most minority-related norms,⁴⁵⁹ and the adoption of the CoE Language Charter may be viewed as a signal of the importance attached to the maintenance of languages. The norms concern the possibility of persons belonging to minorities to learn their mother tongue and receive education in it as well as to use their language with authorities.⁴⁶⁰ The minority norms also contain some differing elements or em-phases. For instance, the OSCE commitments set out the right of persons belong-ing to national minorities to conduct religious educational activities in their mother tongue, and the CoE Framework Convention addresses the use of one’s name, as well as the display in a minority language of signs, inscriptions, other information of a private nature, traditional local names, street names and other topographical indications.⁴⁶¹ The CoE Language Charter enables the states parties to adopt far-reaching obligations with respect to (traditional) regional or minority languages in a number of fields. It is also noteworthy that the OSCE and CoE norms place a considerable emphasis on the need for persons belonging to minorities to learn the state’s official language (or languages).⁴⁶²

457. For the two elements, or pillars, in minority norms, see also the remarks in the HCNM Report on Linguistic Rights (1999), Part III, Section E, paras 1–3.

The nature of the relationship between the two pillars has been an issue debated and char-acterised in various ways by scholars. There are views according to which minority rights are separate from and additional to the rights stipulated in general human rights norms and those that do not view specific minority norms as signifying any separate or additional cat-egory of human rights. For this debate, including a view that specific minority norms entail recognition of and a legal basis for specific forms and measures of protection to universal human rights, see Scheinin (2003).

458. The issues pertaining to tolerance have been brought to the fore particularly in the OSCE commitments and art. 6 of the CoE Framework Convention. For more, see the remarks infra in chapters 2.2.1.2 and 2.2.1.3.1.

459. See the OSCE commitments, the UN Minority Declaration, and the CoE Framework Convention.

460. The OSCE commitments mention the possibility to the use of a minority language before public authorities and the CoE Framework Convention with administrative authorities. The CoE Language Charter specifies the use of minority languages in relations with judicial and administrative authorities and public services.

461. The CoE Framework Convention’s provision on linguistic rights in criminal proceedings also goes beyond the human rights norms of general application.

462. The UN norms on minorities do not contain similar provisions.

The minority-related provisions on education address issues of both the non-discriminatory access of persons belonging to minorities to general educational structures and the right of these persons to set up and manage their own private educational or training establishments.⁴⁶³ States have also committed themselves to taking measures in the field of general education that take account of minorities, in-cluding disseminating information on them.⁴⁶⁴ In this context, the CoE Framework Convention refers to teacher training and facilitating contacts among teachers and students of different communities, thus pointing to the importance of intercultural-ism in this endeavour.

All the documents of relevance for minorities place a considerable emphasis on participation, underscoring the importance of opportunities for persons belonging to minorities to participate in decision-making in general, and particularly when the decisions affect them. The pertinent provisions include references to effective participation, consultation, co-operation and involvement.

The norms on minorities often mention the issue of identity in conjunction with states’ commitments to protect the existence of minorities.⁴⁶⁵ In general, the right to existence is asserted as the core element of minority protection, a necessary prereq-uisite for other rights.⁴⁶⁶ It may be observed that while the minority-related norms adopted within the OSCE and the UN contain provisions on the protection of the identity of minorities, the CoE Framework Convention takes a more individualistic approach to the issue by referring to respect for the identity of persons belonging to national minorities.⁴⁶⁷ The identities that receive protection are national, ethnic, cul-tural, religious and linguistic identities⁴⁶⁸ and thus also reflect the minority groups protected under the international norms. The CoE Framework Convention links

re-463. See the OSCE commitments, the CoE Framework Convention, and the UNESCO Con-vention against Discrimination in Education.

464. See the OSCE commitments, the UN Minority Declaration, and the CoE Framework Convention. The CoE Framework Convention also refers to taking measures in the field of research to foster knowledge of the culture, history, language and religion of national minorities.

465. See the UN Minority Declaration and the CoE Framework Convention.

466. Thornberry (1991), pp. 57–58.

467. The OSCE commitments also contain references to the right of persons belonging to na-tional minorities freely to express, preserve and develop their (ethnic, cultural, linguistic or religious) identity.

468. The UN Minority Declaration refers to protection of the national or ethnic, cultural, reli-gious and linguistic identity of minorities. While art. 27 of the ICCPR is silent on the issue of identity, the HRC has discussed the cultural, religious, and social identity of minorities in its General Comment on art. 27. The OSCE commitments refer to ethnic, cultural, lin-guistic or religious identity of national minorities. The CoE Framework Convention refers to the ethnic, cultural, linguistic and religious identity of persons belonging to national minorities and notes that the elements of identity are linked to religion, language, traditions and cultural heritage.

spect for and promotion of the identity of persons belonging to national minorities to a pluralist and genuinely democratic society. Within the CoE, states have also established a connection between the identity of Europe and the protection of (his-torical) regional or minority languages and of national minorities.⁴⁶⁹ The pertinent OSCE commitments connect a number of elements to the question of identity: the mother tongue; the establishment and maintaining of educational, cultural and re-ligious institutions, organisations or associations; contacts among persons belonging to national minorities; religion; and participation. In general, the OSCE provisions may be viewed as standing out in the protection of the identity of minorities.⁴⁷⁰

While the protection of persons belonging to (national) minorities has been seen as furthering both justice and democracy,⁴⁷¹ a further salient characteristic of the international norms on minorities is the explicit connection established between mi-nority protection and peace, security and stability between as well as within states.

This comes particularly clearly to the fore in the OSCE commitments but can be also seen in the minority norms adopted within the UN and the CoE. Undoubtedly the fact that the OSCE norms were used as models for the UN and CoE minority norms has played a role in the evolvement of this emphasis. This linkage suggests that paying positive attention to minorities, including protecting their identities, enhances and consolidates peace, security and stability. Thus far the protection of minorities has been viewed essentially from the viewpoint of the security of states;

the more recent discussions on the security of individuals revolving around, for in-stance, the concept of human security have not yet taken up the issue of (national) minorities in any substantial way.⁴⁷²

The fact that states have not managed to reach agreement on the definition of

“minority” creates additional challenges in the area of minority protection. Whilst the relevant international norms do provide indications on the kinds of minority groups protected under them when they refer to national, or ethnic, cultural, lin-guistic or religious groups or identities, the norms are nevertheless extremely gen-eral thereby allowing various interpretations of their scope of application. The di-vergent views on this scope are apparent when one examines the views of states and international expert bodies or other actors established to deal with minority ques-tions: they vary, sometimes even drastically.⁴⁷³ Over the years, a number of scholars

469. See the CoE Language Charter and the documents adopted at the CoE summits.

470. See also Martín Estébanez (1999), p. 34. One of the unique aspects of the OSCE commit-ments on national minorities is that they raise the question of various concepts of local or autonomous administrations as constituting ways to protect and promote the (ethnic, cul-tural, linguistic and religious) identity of certain national minorities.

471. This link is evident in both the OSCE commitments and the CoE Framework Convention.

472. See the remarks on the concept of human security supra in chapter 2.1.1.2.1. The CoE has voiced concern for citizens’ security. See e.g. the documents adopted at the CoE summits.

473. See the remarks infra in chapter 4, in particular the views of the AC and the states parties to the CoE Framework Convention in chapter 4.1.2.

have also made suggestions on a definition of “minority” with somewhat differing emphases.⁴⁷⁴

One of the clearest disagreements in the area of minority protection revolves around the question of nationality/citizenship,⁴⁷⁵ i.e. whether nationality/citizenship can be viewed as a criterion for entitlement to minority protection. The only minor-ity-related instrument that is explicit and somewhat clear about this issue is the CoE Language Charter, which contains express references to the languages spo-ken by nationals of the contracting state, i.e. the CoE member states parties to the instrument. The other minority-related norms leave the issue essentially open.

In general, governments have been keen to draw a line between nationals/citizens and non-nationals/non-citizens, whereas some international expert bodies or actors, including the AC of the CoE Framework Convention and the HCNM have clearly stated that nationality/citizenship is not a necessary criterion for the enjoyment of protection under international norms relevant to minorities.⁴⁷⁶ It is also noteworthy that while article 27 of the ICCPR is silent on the issue of nationality/citizenship, the HRC has put forth a view advocating a broad personal scope of application for this provision that would cover the non-permanent residents of a country, including migrant workers and even visitors, thus non-nationals/non-citizens.

In light of the divergent views on the extension of minority protection under the international norms, the situation as it stands regarding both which groups qualify as minorities and what the ensuing concrete minority rights are in various situations may be described as rather confusing at best. It is simply rather unclear what kinds of groups may be entitled to the protection envisaged.⁴⁷⁷ The main definitional

chal-474. Among the most notable attempts is that made by Special Rapporteur Francesco Capotorti in his study on minorities published in 1977. See Caportorti (1979). Subsequently, Jules De-schênes presented a comprehensive analysis on minorities in 1985 including a proposal for the definition of a minority. For these studies and definitions, see Eide (1992), pp. 221–222, and Gayim (2001), pp. 13–16. Lauri Hannikainen has made an attempt to consolidate various elements linked to minorities, and according to him there exists a certain consensus on some criteria which need to be in place in order for a group to be considered a minority at the inter-national level. In Hannikainen’s view, “minorities” are such inter-national, ethnic, religious and lin-guistic groups which (1) differ from the rest of the population, (2) are numerically inferior to the leading nationality or nationalities, (3) are in a non-dominant position, (4) have a mutual sense of solidarity, and (5) are well-established, including having deep roots in their country of residence, and according to the leading view, whose members are citizens of their country of residence. Hannikainen (1996), p. 3. See also remarks in Pentassuglia (2002), pp. 55–72.

475. See also the remarks on the concepts of nationality and citizenship infra in chapter 2.2.2.

476. See the remarks infra in chapter 4.

477. E.g. John Packer has pointed out that the issues involving minorities are characterised by persistent conceptual and terminological confusion in the social sciences, humanities and law, which hampers the elaboration and implementation of mutual understanding, sustain-able policy and effective law in the area. His view is that the need to specify the potential beneficiaries of the protection provided by established minority standards calls for a re-sponse to the definitional problem. Packer (1999), pp. 269–273.

lenges boil down to the general vagueness of many concepts – for instance, ethnic-ity – that are employed in the pertinent norms.⁴⁷⁸ Whilst a linguistic or religious minority may often be defined without major difficulties, pinpointing an ethnic or national minority is a much more complex task.⁴⁷⁹ What can be concluded without difficulty is that the groups not characterised by the features cited in the interna-tional minority norms, i.e. minority groups with no nainterna-tional, ethnic, religious or linguistic features, receive no protection with respect to the preservation – to say nothing of the promotion of their identities and self-realisation under these norms.

As regards international standard setting with regard to indigenous peoples, ILO Convention No. 169 and the recently adopted UN Declaration on Indigenous Peoples lay down the basis for the international protection of these groups in the European context.⁴⁸⁰ In general, these norms articulate concerns for a much broad-er set of issues – for example, those relating to land and the traditional activities and livelihoods of indigenous peoples – than do the international minority norms.

The norms also address the issues of the identity and integrity of the peoples, ac-knowledge the communal nature of indigenous rights, and advocate autonomy for indigenous peoples with respect to certain activities. The question of participation by indigenous peoples, elaborated, for example, through references to consultation and co-operation, receives considerable attention in the norms, far more than in the norms dealing with minorities.⁴⁸¹ In the area of education, and as in the case of the international norms on minorities, the norms pertaining to indigenous peoples deal with the issue of non-discriminatory access of the peoples concerned to general edu-cational structures, their right to set up and manage eduedu-cational or training estab-lishments of their own, and the need to take measures to disseminate information on them. Unlike the minority norms, however, the indigenous norms aim at the

478. Patrick Ireland has commented on the use of the term “ethnicity” in the field of migration by pointing out that it belongs to the set of concepts widely used but seldom defined. Ire-land (2004), p. 2.

479. Manfred Nowak has discussed particular difficulties to define an ethnic minority. He has stated that “ethnic” is broader than “racial”; the latter mainly relates to biological, physically recognisable or genetic features, whilst the former also covers cultural and historical ele-ments. “Ethnic minority” is also broader than the term “national minority”. Manfred Now-ak (2005), pp. 648–652. For the complexities relating to various characteristics linked to groups entitled to protection under the international minority-specific human rights norms, see also Gayim (2006), pp. 85–108 and 131–133.

480. The Vienna Document of the 1993 World Conference on Human Rights contains only some very general remarks on indigenous people(s).

481. In recent years, enabling the participation of indigenous peoples also at the international level has been given an increasing amount of attention, concretised e.g. in the establishment of the Permanent Forum on Indigenous Issues within the UN and in the possibility of in-digenous peoples to participate in the work of the Arctic Council. See the remarks supra in chapter 2.1.2.2.

establishment of educational institutions run by indigenous peoples themselves, and the states parties to ILO Convention No. 169 have committed themselves to provid-ing resources to this end. It is of some interest that while ILO Convention No. 169 underlines the need for indigenous peoples to learn the national/official language, its provisions on language are less broad than those in the minority norms.⁴⁸² One of the stated aims of ILO Convention No. 169 is the elimination of socio-economic gaps between indigenous and other members of a national community.

The UN Declaration on Indigenous Peoples represents an effort to rectify some of the deficiencies in ILO Convention No. 169, for example, by better incorpo-rating the views of indigenous peoples. The Declaration also introduces a number

The UN Declaration on Indigenous Peoples represents an effort to rectify some of the deficiencies in ILO Convention No. 169, for example, by better incorpo-rating the views of indigenous peoples. The Declaration also introduces a number