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


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

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)



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
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

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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
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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?
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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.

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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

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Paradox of minority protection