THE HUMAN RIGHTS COMMITTEE PROTECTING MINORITIESProf. Michael O’FlahertyJune 2010

The Committee

The ICCPR treaty body 18 independent experts elected by

States Parties Review of periodic reports Consider individual communications Generate General Comments

Members of Minorities and the ICCPR

Entitlement to all Covenant protections – many of which are directly relevant to well-being of minority groups and their members

Entitlement to all article 2, 3 and 26 discrimination protections

The particular protections of article 27

General Comment 23 of 1994

Rights of individuals only

Article 27

‘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 practice their own religion, or to use their own language’.

Background

The tension of the assimilationist and protectionist models

Nothing in UDHR 1948 GA calls on HRComm to detail measures to

protect minorities 1950 - Sub Comm of HRComm instead drafts

article for Covenant 1953 – taken up by HRComm:

Soviet & Yugoslav v. the assimilationist latter prevail

1961 reaches GA: new members tend towards assimilation model

General Comment 23 on article 27 General observations

- Rights distinct from and additional to other Covenant rights

- Rights may not be exercised to deprive other rights of Covenant

- “The protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole”

“Minority”

Prevalence of most elements of Capotorti definition:

1. numerically inferior in State 2. non-dominant position 3. ethno-religious-linguistic difference 4. solidarity inter-se Numeric refers to entire population of State:

Ballantyne and others v. Canada (1989) But need not be citizens (note tension

between GC 23 and Capotorti view) Existence is matter of fact not law or

acknowledgement (GC 23)

“Exist”

What level of stability / establishment required?

GC on Minorities: extreme flexibility – GC’s rather promiscuous approach not reflected in practice

Merits of having some form of “stability” requirement from points of view of protection needs, respect for diverse approaches to minority issues, etc.

Types of minority

EthicReligiousLinguisticClosed list

“Ethnic”

From race to ethnicity Perils of application of notions of

race, culture and ethnicity Indigenous groups (e.g. Lovelace v.

Canada; Lubicon Lake Band v. Canada)

Indigenous groups even when they do not so identify? (Poma v. Peru, 2008)

Who bears the right?

Minority rights as meaningless without acknowledgements of the collective

But clear that the right resides in the individual (consistent with classic theories of human rights law)

Test of membership of the individual in the group has objective and subjective elements for all three categories (ethnicity, religion, language) (Lovelace v. Canada)

Difficulty in practice of application of test: Kitoc v Sweden

“enjoy their own culture”

Capotorti: broad sense HRC and economic elements:

Kitok v. Sweden (1985) – reindeer husbandry

Poma v. Peru (2009) – llama husbandry GC 23: hunting and fishing Limits: Diergaardt et al. v. Namibia (2000)

– the cattle of the Rehoboth community – inconsistent with Poma?

“profess and practice their own religion”

Prince v. South Africa (2007):

Not every interference constitutes a violation.

“use their own language”

Different pronunciation, some dialectical differences may not constitute separate language

No right to have a language made an “official language”

Mavlonov and Sadi v. Uzbekistan: education in minority language/minority language press

Nature of obligation

Negative element is clear Positive element: the conceptual

challenge of ensuring a negatively expressed right

But without it what point to art 27? GC 23: “positive measures by States may

also be necessary to protect identity of a minority”

Positive measures (a) Protective; (b) Promotional

Positive protection elements regarding State and 3rd party action:

Kitok: protect against indigenous group

Lubicon Band: protect against commercial interests (oil & gas)

Mahwika v. New Zealand: protect against commercial interests (fishing)

Compatibility of positive measures with articles 2 and 26 (GC 23)

Promotional positive measures – guidance from reporting procedures.

Consultations

Significance of consultation (Mahwika) Poma:- Opportunity to participate in decision making process

(including by affected individual/author)- Effective participation- Requires the free, prior and informed consent of members

of the community

(UN Declaration on Indigenous Peoples: States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them).

What can report review procedure tell us?

Periodic reporting provision NGO submissions Review by Committee Concluding Observations Follow up

In assessing jurisprudential significance, take note of:

Status of Concluding Observations Clustered approach of the Committee

Minorities and the reporting procedure

Georgia: allow minorities to use own languages at local level; improve Georgian language instruction

Czech Republic/Austria/Macedonia: provide better educational opportunities for Roma children

Croatia: avoid segregation in school for Roma Ireland: recognize Travellers as ethnic minority San Marino: reconsider view that ethnic minorities

don’t exist, given immigration trends Chile: reconsider definition of terrorism that allows

charges against Mapuche community seeking land rights

Japan: increase subsidies for Korean language schools

Reporting and recognition of minorities

Roma Refuting the “national minorities”

approach Not limited to State classifications

- “we have none”: Kuwait, Gabon, Rwanda, Tanzania, Gambia, Greece (except Muslims in Thrace)

- denial of status: travellers in Ireland

Reporting and identifying good practice

Netherlands 2001: workforce incentives for minorities

Finland 2004: role in setting up European Forum for Roma

Hong Kong 2005: establishment of ethnic minorities forum

Costa Rica 2007: prosecutor’s office specializing in indigenous affairs

France 2008: body create to receive individual complaints and suggest legislative changes

Australia 2009: apology for “stolen generation”

Reporting and nature of the positive obligation

Gabon: take positive measures to guarantee rights of people belonging to minorities

Estonia: put road signs in Russian Namibia: why only one official language? (spot the

inconsistency here) Greece: Roma require positive measures regarding

housing, employment, education and social services” Thailand: minorities entitled to effective consultation /

involvement in decisions affecting their welfare Sweden: similar - role of Sami Parliament Tanzania: conduct study to “map” indigenous and minority

groups Italy: need to elaborate national action plan to implement

art 27.

Concluding points

Potential to promote minority rights under CCPR

Limited jurisprudential guidance Unsung significance of the reporting

process Towards better use of that process.