The Rights of National Minorities

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The Rights of National Minorities

• May 13th, 2008
• (Lidija Basta Fleiner)

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Outline

• International Legal Standards
• At the UN level
• At the regional level (FCNM)
• 3. Another Two Examples EU and China

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1. The nature of minority problems

• legitimacy/nation-concept -gt state-building/consti
  tutive level
• state organization and governmental system -gt
  constitutional level
• identity (culture, language, religion) -gt human
  rights aspect
• economic resources constitutional issue
• historical and political context post-conflict
  and transitory situation
• - neighbour states as kin-states
  international legal aspects

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Minority problem is often the problem of
contested states

• the conflict over territory power issue
• it may well be that no democratic solution is
  viable within the state
• regional and international aspects (kin-state and
  international mediation)

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Definition is not the main problem!

• The Definition of Minorities
• elements
• the key-problem of a definition the legal
  nature of minority protection individual and/or
  collective rights
• Art. 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 other members of
  their group, to enjoy their own culture, to
  profess and practice their own religion, or to
  use their own language.

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2. Basic International Standards of Minority
Protection

• 1. In General Democracy and the Rule of Law
• 2. Minorities in Particular (Individual) Human
  Rights Approach

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2.1.1. Ius cogens principles - UN Declaration
1992

• Declaration on the Rights of Persons Belonging to
  National or Ethnic, Religious and Linguistic
  Minorities ( resolution of 18 December 1992)
• existence protection
• non-exclusion
• non-discrimination
• non -assimilation

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2.1.2. Positive Measures/Additional Rights

• The right to identity
• Linguistic Rights
• Education Rights
• Media
• The right to establish organisations
• Participation rights
• The right to establish and maintain undisturbed
  contacts across the border (kin-state)
• protection of minorities without a kin state
  (Roma)

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2.2. The Framework Convention on the Protection
of National Minorities (FCNM)2.2..1. In General

• MR are integral part of fundamental HR and should
  be implemented without discrimination
• MR are understood as individual and can be
  enjoyed in community with other individuals
• MR are complementary to the anti-discrimination
  principle second level of non- discrimination
  legislation (positive measures)

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• As a legal treaty, the FCNM is a document of
  legal principles, aimed at achieving full and
  effective (not only equal protection of laws)
  equality differential treatment needed
• the key aspect and a foundational right
  participation rights coming out of the principle
  of effective participation in public and economic
  life
• political dimension in minority rights introduced
  by FCNM is a key challenge

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2.2. 2. Participation Rights

• Art. 15The Parties shall create conditions
  necessary for the effective participation of
  persons belonging to minorities in cultural,
  social and economic life and in public affairs,
  in particular those affecting them.
• Can decentralisation/participation rights deliver
  what federalism promises? (the ambivalence of
  Art. 15)

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Facit

• FCNM helps for small dispersed minorities,
  already on the road for assimilation. FCNM is
  good for the minorities that are not capable of
  exercising regional autonomy or of sustaining a
  high degree of institutional completeness.
  (Kymlicka)

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The Limits of EU Engagement in Minority
Protection

• EU definition of minority applicable on EU
  territory?! (States decide on ratio personae!)
• Constitutional arguments/concerns against a full
  fledged EU system of minority protection
• The lack of EU competence (political consensus)
  in minority protection
• A subsidiarity principle as relevant legal
  argument? (Subsidiarity relates to execution!)
• A proper EU supranational system would unify
  solutions and bring more legal security and
  equality.
• Argument against a constitutional nature of EU
  
• a/ EU is not a state, and minority protection
  should remain within states constitutional
  competence
• b/) EU has no unified nationality and citizenship
  law

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EU nonetheless offers to minorities

• regionalism on the European scene
• EU law principles of direct effect and the
  supremacy of the Union law
• Financials resources to a vast variety of policy
  fields cultural policy, social policy, regional
  policy, language
• Anti discrimination (Art. 21 of the Charter!)
  legislation in EU countries
• the rights of immigrant minorities by providing
  an additional set of rights to nationals of
  member states, the Union augmented the
  differences between EU from non-EU citizens
  (Italy on Roma)

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Also under UN regime, but a different Case China

• Tradition and communism two major underpinnings
  of minority policy
• Comprehensive constitutional and legal basis for
  minority protection
• MR are context-related rule by law and no civil
  society
• No place for political dimension in MAR
• Autonomy is the most striking aspect of minority
  rights but its aim is to appease instead of
  accommodating minorities