Scope of Group-specific Norms and Recognising Differencesand Recognising Differences

Specific international norms adopted by states in the area of minorities and in-digenous peoples aim at recognising and protecting the difference of these groups vis-à-vis the general population and even promoting those differences. This ac-knowledgement of differences in these norms has been described as a move away from emphasising “the right to be the same” towards “the right to be different”.⁴⁹³ Characteristic of this recognition is that the differences of minority and indigenous

490. The Beijing Document does touch upon the identity of indigenous women.

491. For the remarks on the question of double or multiple forms of discrimination, see chapter 2.3.1 infra.

492. The OSCE commitments addressing education contain references to the cultural identity of children belonging to national minorities or regional cultures.

493. For the “right to be different”, see e.g. Makkonen (2000), p. 5. The HCNM has also stated that, in essence, minority rights can be described as the right to be different without being discriminated against because of those differences. HCNM’s address at the HDIM (2006), para. 7. “The right to be different” has been expressly mentioned in the case of indigenous peoples in the UN Declaration on Indigenous Peoples.

groups are acknowledged outside the private sphere, i.e. in the public sphere, par-ticularly in the area of education. Specific attention is drawn to these groups also in such areas as participation and relations with public authorities.

Despite the recognition of “the right to be different” for minorities and indige-nous peoples, a closer examination of the norms reveals that states have nevertheless been eager to limit this possibility. The limits are set out, for instance, in the com-patibility clauses inserted in the international instruments. It may also be seen that the pertinent clauses in different documents set somewhat different limits: while the compatibility clauses inserted in the norms on both minorities and indigenous peoples refer to compliance with international standards as well as national legisla-tion, those clauses pertaining to minorities set somewhat stricter standards.⁴⁹⁴

Furthermore, and if one examines the international norms on minorities, many provisions, particularly those of more far-reaching substance, contain numerous for-mulations lessening the committal nature of the obligations for states, thus broad-ening their margin of discretion as to the implementation of the standards at their national levels.⁴⁹⁵ This discretion is often linked to recognition of the possible finan-cial, administrative and technical difficulties associated with the implementation of many entitlements.⁴⁹⁶ For instance, since organising education to accommodate the interests and specific needs of minorities (particularly their linguistic interests) re-quires resources, formulations granting states a wider margin of discretion are often inserted in the provisions concerning language questions. These are most conspicu-ous in the provisions dealing with the possibility to learn minority languages, to have teaching in them and to use the minority language with authorities. Further-more, while the international minority norms allow persons belonging to minori-ties to establish and maintain their own educational institutions, these educational activities are to be carried out within the framework of the education system of the states and are required to conform to the limits set by the authorities.⁴⁹⁷

Whereas the provisions on promoting minority languages contain wordings that lessen the level of commitment they entail, the adoption of a separate instrument on minority and regional languages, i.e. the CoE Language Charter, may be taken to signal greater willingness on the part of states to allow linguistic differences than

494. The international norms dealing with minorities call for conformity with national legislation and international standards, including universally recognised human rights and fundamen-tal freedoms. ILO Convention No. 169 refers to compatibility with the fundamenfundamen-tal rights defined by the national legal system and with internationally recognised human rights. It is noteworthy that the UN Declaration on Indigenous Peoples refers solely to compatibility with international human rights standards.

495. Compared with other international norms on minorities, the OSCE documents appear to include fewer formulations of this kind, and thus use somewhat stronger language.

496. This has been specifically stated in the CoE Language Charter.

497. See the CoE Framework Convention and the UNESCO Convention against Discrimina-tion in EducaDiscrimina-tion.

other differences; that is, it suggests that protecting and even promoting linguistic differences is considered to be “safer” than promoting other characteristics. How-ever, the cautiousness of states with respect to linguistic diversity can be seen even in the CoE Language Charter, since it confines protection to older (historical) “Eu-ropean based” languages that are considered part of a “Eu“Eu-ropean identity”. The pro-tection of these languages is also linked to the idea of compensation to those who speak them. In any event, the provisions of the Charter are drafted so as to allow the states parties a broad measure of discretion in interpretation and application.

The cautiousness of states in recognising differences where minorities are cerned may also be inferred from the fact that the minority-specific provisions con-tain only very few obligations requiring states to promote the interests of minorities, and when these do exist, the provisions include somewhat weak language. It may also be observed that promoting general human rights is expressed in stronger terms than promoting minority-specific entitlements. Additionally, the more far-reach-ing the minority entitlements are, the more limitations states place on the potential number of beneficiaries.⁴⁹⁸ Furthermore, although minority rights have collective dimensions – the existence of a minority group is necessary for the enjoyment of minority rights – the political sensitiveness of minority questions has discouraged states from setting out collective rights for minorities.⁴⁹⁹

An additional signal of cautiousness on the part of states with regard to mi-norities is the form of the international instruments chosen for addressing minor-ity issues. The fact that more far-reaching minorminor-ity-related norms have been laid down in a declaration (the UN Minority Declaration), a framework convention (the CoE Framework Convention), and in politically binding OSCE documents may be read as reflecting the reluctance of states to adopt stronger legal obligations in the area. What is more, the entitlements laid down in treaties, i.e. the CoE Framework Convention and the CoE Language Charter, are not even individually guaranteed rights: they are not rights which individuals can invoke. In general, most minority provisions are drafted essentially to set out obligations for states, not as subjective rights of individuals. As a result, there are no individual complaint mechanisms in either the CoE Framework Convention or the CoE Language Charter; the interna-tional supervision of the implementation of these instruments is carried out solely in

498. This is evident in the area of language rights. The CoE Language Charter, which addresses the most far-reaching language-related entitlements of persons belonging to minorities, concerns only historical minorities whose members are also nationals of the contracting state. In general, the Charter’s provisions leave the states parties a considerable margin of discretion in deciding which groups are relevant under the Charter, and particularly which languages are object of more extensive protection.

499. For the remarks on the historical, structural, and political reasons behind the cautious-ness of states as regards declaring any collective rights of national minorities, see Capotorti (1979), p. 35. For the individual and collective aspects of minority rights, see e.g. Martín Estébanez (1996), pp. 5 and 29–41.

the form of state reporting. It is also noteworthy that the CoE states could not even agree to entrust truly independent bodies with the task of monitoring the imple-mentation of these instruments, but gave the task to the central political body of the CoE, the CoE Committee of Ministers.⁵⁰⁰ In fact, the only treaty-based provision which has been formulated as a subjective right of persons belonging to minorities and whose application can be challenged by individuals before an international body is article 27 of the ICCPR. However, the fact that this provision is very tentatively worded renders it weak protection for minorities.⁵⁰¹

In sum, although states have concluded numerous international norms on minor-ities, they have not been willing to assume very strong obligations in the area. The international minority norms are in fact rather “minimalistic” and lack effectiveness when it comes to preserving minority cultures and identities. Setting up and main-taining private educational institutions or thriving cultural societies or organising festivals to support minority cultures requires financial resources or other assistance, but states have not assumed strong obligations to this end. For instance, the CoE Framework Convention has been characterised as consisting of “weak obligations and weak monitoring” to an extent that renders it “almost worthless as a means of guaranteeing minority rights within the Council of Europe”.⁵⁰² The work carried out so far by the AC set up by the Convention has shown, however, that consistent, well-reasoned and high-quality supervisory work that includes sound views and rec-ommendations may compensate for some of the weaknesses of this Convention. The work of the AC is discussed in detail below in chapter 4.1.

The very same observation that may be made in connection with minority norms – that the entitlements containing more far-reaching substance are expressed in language leaving a greater margin of discretion to states – applies to many of the international norms on indigenous peoples as well.⁵⁰³ However, generally speaking, while international minority norms seem to employ stronger language in their non-discrimination and equality provisions than in their provisions containing the

500. The Committee of Ministers is assisted in this work by the AC with respect to the CoE Framework Convention, and by the Committee of Experts with respect to the Language Charter. For the role of the CoE Committee of Ministers and the AC in the supervision of the implementation of the CoE Framework Convention, see also the remarks infra in chap-ter 4.1.1.

501. While the Child Convention sets out subjective rights of children, including some rights spe-cifically pertaining to minority (and indigenous) children, it does not provide for a complaints procedure for individuals, but only a state reporting mechanism. As regards other minority-relevant international documents, the UN Minority Declaration does not create any kind of a supervisory mechanism, and the OSCE documents set up neither supervisory mechanisms to which individuals could resort nor any kind of a regular state reporting system.

502. Gilbert (1999) p. 63.

503. See particularly the provisions in ILO Convention No. 169.

“added value” elements,⁵⁰⁴ the norms on indigenous peoples use somewhat stronger language in many articles containing this “added value” component as well. For ex-ample, the provisions of ILO Convention No. 169 include weightier obligations on states to promote indigenous peoples’ interests and to provide resources to support indigenous cultures than do international minority norms.⁵⁰⁵ Although the interna-tional norms suggest a willingness to grant indigenous peoples a more far- reaching empowering code than has been given to minorities – meaning that indigenous peoples have a more extensive possibility to “be different” than any other groups specifically considered in international norms – the significance of ILO Conven-tion No. 169 has been vitiated by the low number of ratificaConven-tions among the states in which indigenous peoples live.⁵⁰⁶ The long and often difficult drafting process of the UN Declaration on Indigenous Peoples also reflects difficulties on the part of a great number of states to adopt more far-reaching group-specific norms.

The differences of other groups whose situations are addressed in the international human rights norms have not received the same level of acknowledgement as those of minorities and indigenous peoples. The international norms on children, espe-cially when the Child Convention draws attention to the issues such as the child’s personality, identity and cultural values, do touch upon the question of differences.

So do, to some extent, the international norms on migrant workers and refugees when they call for measures in the public sphere.⁵⁰⁷ It is noteworthy that in its re-cent decisions pertaining to migrants, the OSCE Ministerial Council has drawn attention to respecting cultural and religious diversity. The recently adopted Con-vention on the Rights of Persons with Disabilities deserves particular mention for dealing with the issue of respect for difference and thereby the acceptance of per-sons with disabilities (as part of human diversity and humanity). It may be observed that the international norms on the elderly and women are most hesitant to make any references to specific features or differences of these persons. For instance, the norms on women do not discuss any differences generally pertaining to womanhood

504. See the remarks on the two elements or pillars supra in chapter 2.1.4.1.

505. In general, requirements imposed on the rest of national community to accept customs and traditions of indigenous peoples, and particularly to adjust their own practices to take into account those of indigenous peoples, are not very strong, but are nevertheless more far-reaching than those imposed by the norms on minorities.

506. See the remarks on the ratification status of this convention supra in chapter 2.1.2.1. The fact that even indigenous groups have opposed its ratification signals difficulties relating to this instrument.

507. The norms on migrant workers address e.g. the linguistic needs of migrant workers (and their children) with respect to their mother tongue and call for measures in the area of public education, and the norms on refugees call for e.g. taking the religion of refugees into account in the area of education.

or the like, but rather confine themselves to considering women’s child-bearing role, which is often viewed as requiring protective measures.

2.1.4.3 On Incorporation: From Forced Assimilation