Generally all countries in the world have national or ethnic, linguistic and religious minorities within their populations. The modern era of globalization increased the character of multi nationality and multicultural countries around the world. However, the issue of recognition and protection of minority rights has recently become regulated under international law. Flywheel of the codification of the rights of national minorities on the European continent were bloody ethnic conflicts in the last decade of the twentieth century. In early 1990s, the international community was obliged to respond to the inter-ethnic conflicts of the time and also to take into account the fact that "we live in a world where extreme nationalism is stronger and where different forms of racial, ethnic and religious intolerance is growing" (Buergethal 1997, 721).
United Nations are dealing with the issue of minorities already for more than 60 years. In the 1948 the General Assembly declared that the United Nations could not remain indifferent to the fate of minorities (OHCHR 2013). Therefore in this article I will pay attention to the instruments that have been adopted in the United Nations containing elements for the protection of national, ethnic, religious and/or linguistic minorities.
System for protection of minorities is based on two pillars. The first includes non-discrimination, which is combined with individual human rights of special relevance for minorities, while the second concerns standards that are specific to minorities aimed at protecting and promoting the right to identity of minorities (Henrard 2007, 6).
Non-discrimination and equality
The principles of equality and non-discrimination are central to the human rights system, but unfortunately racial and ethnic discrimination continues to be a major human rights problem in the world today. The most important document of global application in the filed of combating discrimination based on ethnicity is brought under the auspices of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenants on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Both Covenants contain provision that prohibit discrimination, while the elimination of racial discrimination in broader sense is a special goal of the ICERD. Speaking of important international instruments that prohibit discrimination, it must no be forgotten ILO Convention concerning Discrimination in Employment and Occupation from 1958 (OHCHR 2010).
Rights concerning these persons are listed in the article 5 of the Convention - these are mainly basic human rights: right to equal treatment, right to freedom, right to nationality, the right to security of person etc. ICERD is obligatory for state parties and it is the only instrument that obliges them to adopt positive measures "when the circumstances so warrant" (Aricle 2.2) (Henrard 2011, 407).
The absence of discrimination is clearly insufficient for the development of culture and thus identity of a particular group, therefore specific standards aimed at protecting and promoting the right to identity of minorities are needed.
Special rights
International human rights documents that relate to ethnic, national or religious groups and include so called special rights for persons belonging to minorities include:
The International Covenant on Civil and Political Rights (Art. 27.); the International Covenant on Economic, Social and Cultural Rights (Art. 2.2); Convention on the Rights of the Child (Art. 30); the Convention on the Prevention and Punishment of the Crime of Genocide(Art. 2); the Convention on the Elimination of All Forms of Racial Discrimination (Arts. 2 and 4); ; The ILO Discrimination (Employment and Occupation) Convention (Arts. 1 and 2).; the ILO Declaration on Fundamental principles and Rights at Work; the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage; the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions; the UNESCO Convention against Discrimination in Education (Art. 5)
From our perspective, it is especially important the Article 27 of ICCPR as the obligatory provision on the protection of minorities on an universal level. It states: "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 their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language." It is underlying the principle of right to identity, but on the other hand it is very general, because it does not give any specification as to what does, right to use their own language, religion and culture, might imply. (Henrard 2007, 16). This article relates to the rights of minorities in the States where they exist, even if the minorities are not officially recognized by the State. Person who are protected under this article are individuals who share same culture, a religion or language. Article also indicates that persons under protection of this article does not need to be citizens of the State party or permanent resident (OHCHR 1994).
More detailed provisions are contained in the 1992 United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. UN Minorities Declaration calls states to protect ethnic, cultural, religious and logistic identity of minorities (Art 1.1). In order to achieve this "States shall adopt appropriate legislative and other measures". Rights that are guaranteed to minorities can be used in private and public, without interference and discrimination (Art. 2.1). "Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life" (Art. 2.2.). The UN Minorities Declaration explicitly addresses the right of minorities to participate effectively in decisions on the national and regional level concerning the minority to which they belong (Art. 2.3).
In order to protect and promote these rights, the declaration also determines the measures that need to be taken by states. States need to :
- create favorable condition to enable persons belonging to minorities development of their culture, language, religion, traditions and custom (Art. 4.2)
- to give adequate opportunities for minorities to learn their mother tangue ( Art. 4.3)
- "to encourage knowledge of the history, traditions, language and culture of minorities existing within their territory and ensure that members of such minorities have adequate opportunities to gain knowledge of the society as a whole" (Art. 4.4)
-the declaration also emhasize the importance of the full participation by persons belonging to minorities in the economic progress and development in their country (Art. 4.5)
- to consider the legitimate interests of minorities in developing and implementing national policies and programmes, and international programmes of cooperation and assistance (Art. 5)
- cooperate with other States on questions relating to minorities, including exchanging information and experiences, to promote mutual understanding and confidence (Art. 6)
- promote respect for the rights set forth in the Declaration (Art. 7)
To conclude, we have seen that many international standards for protection of minorities certainly exist, however, a particular importance and responsibility, including the content of these standards still rests on states where minorities live. It is necessary to establish a clear government strategy toward minorities, therefore starting with positive solutions, states must find optimal and functional models of regulating the relations between minorities and the majority.
References:
Buergenthal, Thomas. 1997. The Normative and Institutional Evolution of International. Human Rights. Human Rights Quarterly, 19(4): 703-23. Avaialble at: http://www.jstor.org/stable/762684 (May 5th 2013)
OHCHR. 2010. Minority Rights: International standards and Guidance for Implementation. Available at: http://www.ohchr.org/Documents/Publications/MinorityRights_en.pdf (May 5th 2013).
OHCHR. 2013. Combating Discrimination against Minorities. Available at: http://www.ohchr.org/EN/Issues/Discrimination/Pages/discrimination_minorities.aspx (May 5th 2013).
Henrard, Kristin. 2007. Equal Rights versus Special Rights? - Minority Protection and the Prohibition of Discrimination. Available at: http://www.migpolgroup.org/public/docs/124.EqualRightsVsSpecialRights_EN_06.07.pdf (May 5th 2013).
Henrard, Kristin. 2011. Boosting Positive Action: The Asymetrical Approach towards Non-discrimination and Special Minority Rights. Available at: http://www.zaoerv.de/71_2011/71_2011_2_a_379_418.pdf (May 5th 2013).
HREA. 2013. The Rights of Ethnic and racial Minorities. Available at: http://www.hrea.org/index.php?doc_id=360 (May 5th 2013).
UNHCHR. 1994. General Comment No. 23: The rights of minorities (Art. 27). Available at: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/fb7fb12c2fb8bb21c12563ed004df111?Opendocument (May 5th 2013).
International Convention on the Elimination of All Forms of Racial Discrimination. 1965. Adopted by the General assembly on 21 December 1965, entered into force on 4 January 1969. Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx (May 5th 2013).
International Covenant on Civil and Political Rights. 1966. Adopted by the general Assembly on 16 December 1966 in New York, entered into force on 23 March 1976. Available at: http://cil.nus.edu.sg/rp/il/pdf/1966%20International%20Covenant%20on%20Civil%20and%20Political%20Rights%20(ICCPR)-pdf.pdf (May 5th 2013).
United Nations Declaration on the Rights of persons Belonging to National or Ethnic, Religious and Linguistic Minorities. 1992. Adopted by the General Assembly on 18 December 1992. Available at: http://www.ohchr.org/Documents/Issues/Minorities/Booklet_Minorities_English.pdf (May 5th 2013).
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