THE INTERNATIONAL JUDICIAL PROTECTION OF THE

RIGHTS OF PEOPLES AND MINORITIES

by Alfred de Zayas*

The international judicial protection of the rights of peoples and minorities is only very gradually developing. Although progress is noticeable in standard setting and there is an increased awareness of the existence of peoples' and minorities' rights, the International Court of Justice (ICJ) has not been seised of any minority rights cases and has considered aspects of the rights of peoples only in the context of decolonisation and the administration of mandates. Moreover, it should be recalled that peoples and minorities have no standing to appear before the ICJ, and that they have not made full use of those international judicial or quasi-judicial instances open to them, such as the United Nations Human Rights Committee and the European Commission and Court of Human Rights.

Moreover, much standard-setting remains to be completed. The International Covenant on Civil and Political Rights only mentions self-determination in Article 1 and provides limited protection of minority rights in Article 27. The European and American Conventions on Human Rights lack any specific provision on the protection of minority rights and have only general non-discrimination articles. It should also be noted that the rights of peoples and of minorities are not the same, and that peoples, in particular indigenous populations, perceive themselves as nations and very much object to being considered "minorities".

Important recent developments include the adoption by the United Nations Commission on Human Rights of a Draft Declaration on the Rights of Persons belonging to national, ethnic, religious and linguistic minorities (Resolution 1992/16 of 21 February 1992, E/CN.4/1992/48 and Corr.1; approved by ECOSOC on 11 July 1992), the drafting by a Committee of Experts of the Council of Europe of a Draft European Charter for Regional or Minority Languages (1991), and the consideration by the Conference on Security and Cooperation in Europe (CSCE) of a Draft European Convention for the Protection of Minorities (1991).

But, who can claim to be a "people" or a member of a "minority" for purposes of these international instruments? Interestingly enough, in spite of many efforts over several decades, there is still no generally accepted definition of the concepts of "peoples" ⁽¹⁾ and "minorities" ⁽²⁾.

Whereas the Permanent Court of International Justice at the Hague rendered a good definition of the concept of "communities" as early as 1930 in its Advisory Opinion in the Greco-Bulgarian Communities Case (PCIJ, Series B, No. 17), the International Court of Justice, the European Commission and Court of Human Rights, the American Commission and Court on Human Rights, the African Commission on Human and Peoples' Rights, and the United Nations Human Rights Committee are yet to produce pertinent definitions. To express the problem quite concretely, it is not clear how large an Indian Band must be before it can be considered a "people" entitled to aspire to the exercise of the right of self-determination, enshrined in Article 1 of the International Covenant on Civil and Political Rights (in force 23 March 1976) and in Aticle 1 of the International Covenant on Economic, Social and Cultural Rights (in force 3 January 1976). As far as the concept of "minorities", most international instruments refer to ethnic, national, religious and linguistic minorities, without, however, defining them; other possible minority groupings such as minorities based on ideological opinion, age, handicap, sexual orientation, ex-convict status, migrant worker status etc. are usually left out.

PROTECTION OF MINORITIES PRIOR TO WORLD WAR II

It is interesting to note that international judicial protection of minority rights was far more common in the years between the two world wars, and that the Permanent Court of International Justice issued many judgments and advisory opinions in this field. By contrast, the International Court of Justice has not been seised of cases concerning the rights of minorities.

Following the First World War, minority rights in Europe were guaranteed by the system of minority protection treaties that were part of the Paris Peace Settlement. For instance, the Treaty concerning the Recognition of the Independence of Poland and the Protection of Minorities ⁽³⁾, which was concluded between the Principal Allied and Associated Powers and Poland on 28 June 1919, contained important provisions for the protection of German, Czech, Ukrainian and other minorities. Article 4 of this treaty corresponds to the Polish pledge contained in Art. 93 of the Versailles Peace Treaty (1919) to protect the interests of minorities. Article 12 places the protection of the rights of minorities under the guarantee of the League of Nations. Any member of the Council of the League of Nations had the right to bring to the attention of the Council any infraction, or any danger of infraction, of the stipulations of this Treaty. The Council was empowered to take such action and give such direction as it deemed proper and effective. Furthermore, members of the Council could refer any difference of opinion as to questions of law or fact stemming from the provisions of the Treaty to the Permanent Court of International Justice. On several occasions, the Council of the League of Nations requested the Permanent Court to give advisory opinions.

Minorities themselves could address complaints to the League of Nations, which in the inter-war years received hundreds of such complaints, primarily from the Hungarian minorities in Romania and the German minorities in Poland and Czechoslovakia. Members of the minorities did not themselves have standing to bring their complaints before the Permanent Court of International Justice, but sovereign States could and did take up their petitions.

The procedural steps within the League for addressing complaints were as follows: petitions received by the League Secretariat were first examined with regard to admissibility, and if accepted passed to a committee of the Council, which together with the minorities section of the Secretariat conducted an investigation and sought responses of the accused State; if no friendly settlement was reached, the matter was placed on the Council agenda. The minority, however, had no locus standi to appear before the Council. If no solution was reached, the Council could refer the matter to the Permanent Court.

Thus, for instance, in the Greco-Bulgarian Communities Case, Greece and Bulgaria appeared before the Court. In an Advisory Opinion, the Permanent Court first clarified the concepts, holding that

"[a community] is a group of persons living in a given country or locality having a race, religion, language and tradition of their own and united by this identity of race, religion, language and tradition in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship, ensuring the instruction and upbringing of their children in accordance with the spirit and tradition of their race and rendering mutual assistance to each other."

Moreover, the Court held, contrary to the view of the two governments, that the dividing up of the immovable property of the communities was a privilege reserved to the members of such communities and should not be turned over to the respective governments. (PCIJ, Series B, No. 17 (1930)).

In its Advisory Opinion in the Minority Schools in Albania Case, the Court referred to the Albanian declaration of 2 October 1921, Article 5 of which provided:

"Albanian nationals who belong to racial, religious or linguistic minorities will enjoy the same treatment and security in law and in fact as other Albanian nationals. In particular, they shall have an equal right to maintain, manage and control at their own expense ... charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein."

In 1933 an amendment to the Albanian constitution required the closing of all private schools. The Albanian Government contended that the abolition of private schools was not incompatible with its declaration of 2 October 1921, since the measure applied to the majority as well as to the minority. In its opinion of 6 April 1935 (PCIJ A/B 64), the Court concluded that the view of the Albanian Government was not well founded, since Art. 5 of the Declaration provided for equality both in law and in fact. Equality in law precludes discrimination of any kind, whereas equality in fact may involve the necessity to accord different treatment in order to attain a result which establishes an equilibrium between different sections of the community. In the opinion of the Court, the abolition of charitable religious and social institutions, schools and other educational establishments would destroy this equality of treatment, for its effect would be that the minority would lose the institutions appropriate to its needs, whereas the majority would not be affected to the same extent. The Court therefore found that Art. 5 of the declaration was a guarantee for the minorities' right to maintain or to establish in the future schools and other institutions, with the additional right to use their own language. Here the Court vindicated the principle of "affirmative action" for minorities, long before it became "fashionable" in the United States in the 1960's and 1970's. This also contrasts with the European Court's decision in the Belgian Linguistic Case, which does not countenance affirmative action at all (see infra).

In another case before the Court, Germany took up the cause of German minorities in Poland, who had been evicted from their land. On 10 September 1923, the Permanent Court delivered an Advisory Opinion holding unanimously:

"that the measures complained of were a virtual annulment of legal rights possessed by the farmers under their contracts, and, being directed in fact against a minority and subjecting it to discriminating and injurious treatment to which other citizens holding contracts of sale or lease were not subject, were a breach of Poland's obligations under the Minorities Treaty." (German Settlers in Poland Case, PCIJ, Series B, No. 6 (1923), Series C. No. 3)

Other celebrated cases concerning the rights and property of German minorities are: The Advisory Opinion concerning Acquisition of Polish Nationality, PCIJ, Series B., No. 7 (1923); Chorzow Factory Case, Merits, Judgment No. 13, PCIJ, Series A No. 17 (1928), Order of 25 May 1929, PCIJ, Series A. No. 19 (1929); Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6 PCIJ, Series A, No. 6 (1925); Merits, PCIJ, Series A No. 7 (1926), PCIJ, Series C. No. 9(I); No. 11, Vols. I-III; German minority schools in Upper Silesia, Judgment of 26 April 1928, PCIJ, A 15, Advisory Opinion of 15 May 1931, PCIJ A/B 40. Up to 1938 about one hundred complaints by the German minorities were submitted to a special Committee of Three of the League of Nations, which referred only six to the Council. As to the situation in Upper Silesia the German minorities had more effective protection, since the Council was bound under articles 147 and 149 of the German-Polish Convention relating to Upper Silesia, signed at Geneva on 15 May 1922 ⁽⁴⁾, to concern itself both with individual and collective petitions addressed directly to it. As a rule, however, the complaints had to be brought before the Minorities Office and the President of the Upper Silesian Mixed Commissions first. In all, 54 complaints by the Upper Silesian German minority were referred to the Council.

Gradually, however, such international intercession on behalf of minorities was perceived as incompatible with the national sovereignty of the States concerned, and thus, in 1934, Poland unilaterally declared that it would no longer participate in the League of Nations' system of minority protection. Its denunciation of the Minority Treaty went largely unchallenged. Meanwhile Germany had left the League of Nations in 1933, and what could have developed into customary international law regarding the rights of minorities remained mostly a political precedent. In this connection it should be recalled that the League system of minority treaties was limited in scope both in practice and intention. Proposals to extend the system by a General International Convention on minorities were rebuffed, and thus minorities treaties were imposed only on defeated nations which were obliged to participate as a result of wartime defeat or as a condition for receiving additions of territory or recognition of independence. Moreover, the League itself was not a supreme State organization, but merely an international body. As Patrick Thornberry observes: "Ultimately, what could not be achieved by persuasion and mediation could not be achieved at all." ⁽⁵⁾

THE POST WORLD WAR II PERIOD

Following World War II, probably because of the Nazi misuse of some German minorities as "fifth columns", minority rights seemed to be out of fashion, and the victorious Allies chose to try to solve possible minority conflicts by physically uprooting the minorities or even whole populations, instead of trying to guarantee them their human rights in their homelands, where their ancestors had settled hundreds of years earlier.

Thus, some 14 million Germans were "transferred" from Poland, Czechoslovakia, and Hungary, partly on the basis of article XIII of the Potsdam Protocol, mostly under inhuman conditions and complete despoliation of their property. Over two million Germans perished in the process, precisely at the same time as the Allies were prosecuting the Nazis at Nuremberg on the specific charge of forcibly deporting Frenchmen and Poles out of ostensibly annexed territories. The Nuremberg judgment held that the Nazi expulsions constituted crimes against humanity as defined in Article 6(c) of the Charter of the International Military Tribunal. ⁽⁶⁾

By contrast, the Allied policy of expelling peoples and minorities suddenly seemed acceptable, as long as it was carried out by or with the approval of the victorious powers. Thus, pursuant to specific population-exchange agreements, 200,000 Magyars were forcibly transferred out of Czechoslovakia, while 200,000 Slovaks were deported from Hungary to Czechoslovakia. 40,000 Magyars were similarly exchanged, like cattle, for an equal number of Serbs and Croats, without ever asking whether the persons concerned wanted to continue living in their places of residence, where their ancestors had lived for generations. All this happened ostensibly as a precautionary measure in the name of peace. The international community did not protest, and no State brought any claim on behalf of the affected peoples and minorities before the renamed International Court of Justice at the Hague.

I. United Nations Action

When on 10 December 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights, it made no mention of peoples' and minorities' rights. As human beings, peoples and members of minorities could, of course, demand their human rights as provided for in the Declaration. Thus, they could demand at least the universally recognized human rights in equality and non-discrimination.

Peoples rights received a measure of recognition in the political process of decolonization. In this context the decisions of the International Court of Justice in the South West Africa/Namibia Advisory Opinions and Judgments (ICJ Reports 195O, 1955, 1956, 1962, 1966, 1971) and in the Western Sahara Advisory Opinion (ICJ Reports l975) deserve mention. They will not, however, be analyzed in this paper.

With regard to minority rights, a measure of international recognition and protection was finally achieved in Article 27 of the International Covenant on Civil and Political Rights, which provides:

"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 practise their own religion, or to use their own language."

Although drafted in a negative way ("persons ... shall not be denied"), many scholars like Christian Tomuschat have argued that Article 27 goes beyond protection from non-discrimination and envisages some positive action, ("is well suited to give rise to derivative rights to positive State action") ⁽⁷⁾. Thus, Article 27 can be seen as guaranteeing both aspects of equality: non-discrimination (equality in law) and special protection (equality in fact). Nor is Article 27 superfluous or redundant in outlawing discrimination, which is already prohibited in Article 26 of the Covenant. It cannot be overlooked that specific collective goods, viz. minority cultures and languages, have now been expressly brought within the ambit of the Covenant. Thus a definite, though modest step has been taken with a view to ensuring equality in fact as defined by the Permanent Court of International Justice in its Minority Schools in Albania Advisory Opinion of 6 April 1935.

The Covenant was adopted by the General Assembly on 16 December 1966 and entered into force on 23 March 1976. At present 117 States have become parties to it. Compliance with the provisions of the Covenant is monitored by the Human Rights Committee through a procedure of examination of States reports and through an individual complaints procedure under the Optional Protocol to the Covenant.

Early on the United Nations did not have any general machinery for the investigation of complaints concerning human rights violations, other than the monitoring possibilities of the Trusteeship Council, which provided a measure of protection of peoples' rights in non-self-governing territories (UN Charter, Article 87b). Petitions thereunder were examined by a Committee on Petitions, which circulated the petitions and the observations of the administering authority to the Council members. Beyond that the General Assembly established a Decolonization Committee (Special Committee on the Situation with regard to the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples), which also examines information submitted by Governments under article 73e of the UN Charter, and petitions by persons in non self-governing territories, including United States Dependent Territories like American Samoa and the Virgin Islands (e.g. A/AC.lO9/953 of April l988). Moreover, the UN Committee on the Elimination of Racial Discrimination considers petitions, reports and other information relating to Trust and Non-Self-Governing Territories.

It was not until 1970 that the Economic and Social Council adopted Resolution 1503, pursuant to which the Sub-Commission on Prevention of Discrimination and Protection of Minorities, and subsequently the Commission on Human Rights, could investigate, in confidential procedure, complaints received from individuals or groups concerning "a consistent pattern of gross and reliably attested violations of human rights." At last, peoples and minorities had access to a general procedure under which they could submit their "situation" to the attention of international bodies, even if the examination carried out pursuant to the 1503 procedure did not constitute international judicial protection.

On 23 March 1976 the Optional Protocol to the International Covenant on Civil and Political Rights entered into force. At present 67 States have ratified or acceded to it, thus giving the United Nations Human Rights Committee, an independent body composed of 18 experts (not government representatives), competence to examine individual complaints, and issue final decisions on the merits. These decisions are quasi-judicial in nature and read like judgments, even if they are not legally binding.

The procedure before the Committee is simple. Individuals who claim to be victims of violations of their Covenant rights by a State party to the Optional Protocol may submit complaints to the Committee, which must first decide whether the claims are admissible. Besides the ratione materiae and ratione temporis criteria, authors (applicants) must show that they have exhausted domestic remedies and that the same matter is not simultaneously being examined under another procedure of international investigation or settlement (Article 5, paragraph 2 of the Optional Protocol). If a communication is declared admissible, the State party has six months to address the merits, and the author(s) get an opportunity to comment thereon. The Committee's conclusions or "Views under article 5, paragraph 4, of the Optional Protocol" are published in the Committee's annual report to the General Assembly and in a running series entitled "Selected Decisions of the Human Rights Committee". Proceedings, however, remain confidential and in writing. Although the Optional Protocol does not exclude hearings, it does not envisage them either, and thus far there have been none. ⁽⁸⁾

According to the Optional Protocol, only individuals have standing before the Committee. "Peoples" or organizations cannot submit communications as collective entities, but individual members of a "people" (e.g. Canadian Indians), of a minority (e.g. Basques in Spain) or group may submit communications alleging violations of their individual and collective rights.

The Committee has yet to develop its jurisprudence concerning peoples and minorities. Hitherto it has approached their rights from the non-discrimination aspect (Article 26 of the Covenant), and from the identity rights aspect (Article 27). Beyond its jurisprudence, the Committee pronounces itself on issues of peoples and minority rights when it examines the reports submitted to it by States parties pursuant to Article 40 of the Covenant. Furthermore, it renders interpretations of the content and implications of articles in its "general comments"; it is to be expected that the Committee will soon issue a "general comment" on Article 27, elucidating the implications of the article in concrete situations.

Since the Covenant does not provide a definition of the terms "peoples" or "minorities", it is useful to consult the drafting history of Article 27 in order to determine at least what the article was not intended to cover. For instance, it is apparent that it was not intended to cover aliens, migrant workers, refugees or immigrants. The concept of minorities, as discussed in the travaux preparatoires was intended to provide special protection only to nationals of a State, who can be deemed to be different by virtue of "ethnic, religious or linguistic" characteristics. Thus, not every group that is different from the majority can invoke special protection under Article 27. The disabled, for instance, are factually a minority when compared with the rest of the population, but they do not constitute a "minority" for purposes of Article 27.

Whereas the Committee is yet to formulate a "general comment" on Article 27, it has issued general comments on non-discrimination, including Article 26 of the Covenant, and on the position of aliens under the Covenant, focussing inter alia on matters of expulsion or deportation, dealt with in Article 13.

De lege lata it is apparent that "new minorities" such as migrants are not covered by Article 27. Yet, it is not excluded that a general comment of the Human Rights Committee will take into account the evolution of international law in the field since the drafting of the Covenant in the 1940's, 50's and 6O's. Thus, de lege ferenda, it may happen that through the Committee's developing jurisprudence and through the adoption of pertinent language in a general comment, the protection of minority rights in Article 27 may be extended to "new minorities", especially to second and third generation immigrants who do not wish to be totally assimilated into the majority and would prefer to retain their cultural identity.

In a UN debate on Article 27 of the Covenant ⁽⁹⁾, the difference between the concepts of "equality and non-dicrimination" and "protection of minorities" was emphasized. The following distinction was made:

"The prevention of discrimination means impeding any conduct which denies or restrains the right of a person to equality. The protection of minorities, on the other hand, although also based on the principles of equal treatment of all peoples, requires a positive action: a concrete service is offered to a minority group, such as the establishment of schools in which education is given in the native language of the membes of the group. Such measures, clearly, are also based on the principle of equality: for example, if a child is educated in a language which is not his native language, this can mean that the child is not treated on an equal basis with other children who are educated in their native language. The protection of minorities, therefore, requires affirmative action to safeguard the rights of minorities whenever the people in question (the parents in the case of minors) wish to maintain their distinction of language and culture."

The cases that have hitherto come before the Human Rights Committee have been submitted primarily by ethnic minorities (Canadian Indians, Sami in Sweden and Finland), and linguistic minorities (Bretons in France). Religious minorities are yet to submit cases to the Committee; in a case submitted by a Sikh in Canada, the author did not submit it as a member of a minority, nor did he invoke Article 27. The Committee examined the case from the perspective of his freedom of religion, protected under Article 18, and his right to non-discrimination, protected under Article 26, but, in the specific circumstances of the case, did not find any violation of these rights (No. 208/1986, Bhinder v. Canada) ⁽¹⁰⁾.

The first important case concerning a Canadian Indian was No. 24/1977, Sandra Lovelace v. Canada. ⁽¹¹⁾ Ms. Lovelace, a Maliseet Indian who had married and then divorced a non-Indian Canadian, complained that pursuant to the then applicable Indian Act, she had lost her Indian status and did not have a right to live in her reserve. In its Views, adopted on 30 July 1981, the Committee made a finding of a violation of Article 27 of the Covenant and observed:

"The rights under article 27 of the Covenant have to be secured to 'persons belonging' to the minority. At present Sandra Lovelace does not qualify as an Indian under Canadian legislation ... Persons who are born and brought up on a reserve, who have kept ties with their community and wish to maintain these ties must normally be considered as belonging to that minority within the meaning of the Covenant... The right to live on a reserve is not as such guaranteed by article 27 of the Covenant... However, in the opinion of the Committee the right of Sandra Lovelace to access to her native culture and language 'in community with the other members' of her group, has in fact been, and continues to be interfered with, because there is no place outside the Tobique Reserve where such a community exists. On the other hand, not every interference can be regarded as a denial of rights within the meaning of article 27... The Committee recognizes the need to define the category of persons entitled to live on a reserve, for such purposes as those explained by the Government regarding protection of its resources and preservation of the identity of its people... the Committee is of the view that statutory restrictions affecting the right to residence on a reserve of a person belonging to the minority concerned, must have both a reasonable and objective justification and be consistent with the other provisions of the Covenant, read as a whole. Article 27 must be construed and applied in the light of the other provisions mentioned above, such as articles 12, 17 and 23 in so far as they may be relevant to the particular case, and also the provisions against discrimination, such as articles 2, 3 and 26. The case of Sandra Lovelace should be considered in the light of the fact that her marriage to a non-Indian has broken up. It is natural that in such a situation she wishes to return to the environment in which she was born, particularly as after the dissolution of her marriage her main cultural attachment again was to the Maliseet band. Whatever may be the merits of the Indian Act in other respects, it does not seem to the Committee that to deny Sandra Lovelace the right to reside on the reserve is reasonable, or necessary to preserve the identity of the tribe." ⁽¹²⁾

The direct result of the Committee's Views was Canada's amendment of section 12(1)(b) of the Indian Act and the recognition of Sandra Lovelace's right to continue residing in the Tobique Reserve. ⁽¹³⁾

Another case concerning Canadian Indians (No. 167/1984, Chief Ominayak and the Lubicon Lake Band v. Canada) ⁽¹⁴⁾ raised issues under Article 27 with respect to the traditional rights to fishing and hunting, as well as issues of self-determination under Article 1 of the Covenant. With regard to the latter, the Committee observed:

"While all peoples have the right of self-determination and the right freely to determine their political status, pursue their economic, social and cultural development and dispose of their natural wealth and resources, as stipulated in article 1 of the Covenant, the question whether the Lubicon Lake Band constitutes a "people" is not an issue for the Committee to address under the Optional Protocol to the Covenant. The Optional Protocol provides a procedure under which individuals can claim that their individual rights have been violated. These rights are set out in part III of the Covenant, articles 6 to 27, inclusive. There is, however, no objection to a group of individuals, who claim to be similarly affected, collectively to submit a communication about alleged breaches of their rights." ⁽¹⁵⁾

In its Views, adopted on 26 March 1990, the Committee did make a finding of a violation of Article 27. It recognized "that the rights protected by article 27, include the right of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong." ⁽¹⁶⁾ It concluded that "historical inequities, to which the State party refers, and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of article 27 so long as they continue. The State party proposes to rectify the situation by a remedy that the Committee deems appropriate within the meaning of article 2 of the Covenant." ⁽¹⁷⁾

Negotiations between the Government of Canada and the Lubicon Lake Band are still in progress.

Yet another Canadian Indian case concerned the Mikmaq Tribal Society, which claimed a violation of Article 25 of the Covenant, because it was not invited to participate in a Constitutional Conference on the rights of Canadian Indian communities. In its Views on communication No. 205/1986, adopted on 4 November 1991, the Committee found no violation of Article 25, and observed:

"Notwithstanding the right of every citizen to take part in the conduct of public affairs without discrimination and without unreasonable restrictions, the Committee concludes that, in the specific circumstances of the present case, the failure of the State party to invite representatives of the Mikmaq Tribal Society to the constitutional conferences on aboriginal matters, which constituted conduct of public affairs, did not infringe that right of the authors or other members of the Mikmaq tribal society. Moreover, in he view of the Committee, the participation and representation at these conferences have not been subjected to unreasonable restrictions." ⁽¹⁸⁾

This decision has been the object of considerable criticism by academia, including an article by a former member of the Human Rights Committee and of the International Law Commission, Professor Bernhard Graefrath ⁽¹⁹⁾. At the forty-eighth session of the Commission on Human Rights in l992, the Four Directions Council, a non-governmental organization in consultative status, submitted a pertinent criticism under the title "The Right to participate in public affairs-- a confusing Human Rights Committee Decision on Article 25" (E/CN.4/1992/NGO/7), reaffirming that the rights of the Mikmaqs as a "people" had been violated.

In Ivan Kitok v. Sweden (No. 197/1985), the Committee did not find a violation of Article 27, but it had the opportunity of further elucidating the scope of this provision. "The regulation of an economic activity is normally a matter for the State alone. However, where that activity is an essential element in the culture of an ethnic community, its application to an individual may fall under Article 27 of the Covenant." ⁽²⁰⁾ It thus affirmed that a traditional economic activity and way of life, such as reindeer husbandry, falls within the scope of protection of Article 27, since it belongs to the culture of the Sami.

At present another Sami case concerning a different Scandinavian country is before the Committee. It was declared admissible in July 1991 and the merits are now under examination. Since irreparable damage to the group might have been caused by continued construction and exploitation in the area, the Committee requested the State party to forgo further road-building and logging activities in the area while the Committee is considering the matter.

The Breton community in France has submitted numerous cases to the Committee under Article 27. However, upon accession to the Covenant, the Government of France declared that "in the light of article 2 of the Constitution of the French Republic,... article 27 [of the Covenant] is not applicable so far as the Republic is concerned." Article 2 of the French Constitution provides "France is a Republic, indivisible, secular, democratic and social. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs." The rationale for the declaration was given in France's initial and second periodic reports to the Human Rights Committee under Article 40 of the Covenant as follows: "Since the basic principles of public law prohibit distinctions between citizens on grounds of origin, race or religion, France is a country in which there are no minorities and, as stated in the declaration made by France, article 27 is not applicable as far as the Republic is concerned" ⁽²¹⁾. On the basis of the declaration, the Committee has declared several Breton communications inadmissible, observing inter alia that regardless of the term used, the language of the declaration indicated that it should be treated as a reservation ⁽²²⁾.

With respect to French citizens who factually happen to belong to an ethnic minority, France only recognizes their right to equality and non-discrimination under Article 26 of the Covenant. It does not assume any affirmative action obligations to ensure equality in law and in fact by appropriate positive measures.

The Committee has been able to examine certain Breton cases concerning allegations of violations of other articles of the Covenant, particularly articles 14 (fair trial guarantees) and 26 (non-discrimination). In its Views, adopted on 25 July 1990, concerning communication No. 219/1986, Dominique Guesdon v. France, the Committee examined the question whether a French-speaking Breton is entitled to an interpreter from French into Breton in a criminal proceeding against him. The Committee found no violation of Mr. Guesdon's rights, and observed:

"The Committee finds that the French courts complied with their obligations under article 14, paragraph l, in conjunction with paragraph 3(e) and (f). The author has not shown that he, or the witnesses called on his behalf, were unable to address the tribunal in simple but adequate French. In this context, the Committee notes that the notion of a fair trial in article 14, paragraph 1, juncto paragraph 3(f), does not imply that the accused be afforded the possibility to express himself in the language which he normally speaks or speaks with a maximum of ease. If the court is certain, as it follows from the decision of the Tribunal Correctionnel and of the Court of Appeal of Rennes, that the accused is sufficiently proficient in the court's language, it is not required to ascertain whether it would be preferable for the accused to express himself in a language other than the court language. French law does not, as such, give everyone a right to speak his own language in court Those unable to speak or understand French are provided with the services of an interpreter. This service would have been available to the author had the facts required it; as they did not, he suffered no discrimination under article 26 on the ground of his language." ⁽²³⁾

In cases Nos. 347/l988 (S.G. v. France) and 348/l989 (G.B. v. France), the complainants had been convicted by a French court of defacing roadsigns as part of a campaign to promote the Breton language. They claimed, inter alia, that their right to freedom of expression (article l9 of the Covenant) had been violated. The Committee considered that the authors had failed to substantiate their claims and observed further that the practice of defacing roadsigns did not raise issues under the right to freedom of expression. ⁽²⁴⁾

Looking at minority rights from the perspective of affirmative action and the possible complaint of majority members that they are being discriminated vis a vis minority members, it is interesting to note that thus far no such case has been submitted to the Human Rights Committee under the Optional Protocol. Yet, it is entirely conceivable that a member of the majority could challenge positive discrimination on behalf of minorities and claim to receive the same benefits, e.g. subsidies for cultural centers, financial aid for textbooks. Although it is impossible to predict exactly how the Human Rights Committee would decide a concrete case, its established jurisprudence would give reason to believe that a violation of Article 26 of the Covenant would not be found, provided that the distinctions in question are based on reasonable and objective criteria. In this context, it is worth noting that social legislation, by its very nature, is intended to achieve social justice by making certain distinctions. A scheme of progressive taxation, for instance, makes distinctions [in a sense, discriminates] in favour of the poor at the expense of the wealthier. Such a scheme would not be deemed to be violative of Article 26, since it would be based on a reasonable objective, which is not incompatible with the Covenant. Similarly, affirmative action aimed at ensuring the possibility of minorities to maintain their identity and traditions and to enjoy their culture would not constitute prohibited discrimination in the sense of Article 26 of the Covenant. In this sense, it would also be conceivable that a member of a minority could submit a case demanding affirmative action, if such action is necessary for him or her to exercise Covenant rights on a basis of equality with members of the majority.

CERD

The Convention on the Elimination of All Forms of Racial Discrimination does not have any specific articles aimed at the promotion and protection of minority rights.

Ethnic minorities, however, can and do invoke provisions of the CERD Convention if they claim to be victims of discrimination based on their ethnic origin. The procedure of examination of complaints under Article 14 of the Convention is similar to that under the Optional Protocol to the Covenant on Civil and Political Rights.

In one decision concerning a Turkish employee in the Netherlands (No. 1/1984, A. Yilmaz-Dogan v.The Netherlands) ⁽²⁵⁾, the Committee found that she had been subjected to discrimination in violation of the Convention, since her employer appeared to have taken racial considerations into account upon the termination of her contract.

In another decision (No. 2/1989, Demba Talibe Diop v. France) ⁽²⁶⁾ concerning a Senegalese lawyer residing in France, who was denied a license to practice law by the Nice Bar, the Committee could not find a violation of the Convention, and specifically referred to Article 1, paragraph 2, which provides that the Convention "shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens."

CERD is currently seised of two other cases concerning ethnic minorities.

United Nations Commission on Human Rights and Sub-Commission

The Commission on Human Rights examines, in closed session, communications under ECOSOC Resolution 1503. Although systematic violations of peoples' and minority rights have been examined, nothing can be reported in this paper, since the Commission does not publish its resolutions nor the results of its investigations under the "l5O3 procedure" and merely announces that a certain State has been under examination, without indicating the subject matter.

The Draft Declaration on the Rights of Persons belonging to ethnic and national, religious and linguistic minorities, adopted by the Commission on 21 February 1992 and by ECOSOC on 11 July 1992, is expected to be approved by the General Assembly in December 1992. It provides guidance to law-makers in all countries where minorities live. Perhaps it will yet emerge as a Convention or as an Additional Protocol to the International Covenant on Civil and Political Rights. If so, complaints thereunder would be justiciable before the Human Rights Committee.

As to religious minorities, they can invoke the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, adopted by the General Assembly by Reslution 36/55 of 25 November 1981. In this Connection the Commission on Human Rights decided, in resolution l986/2O of lO March 1986, to appoint a Special Rapporteur to examine incidents and governmental actions inconsistent with the provisions of the Declaration. Religious minorities can address their complaints to the Special Rapporteur, to the Commission on Human Rights, or to the Centre for Human Rights, but such complaints could only be examined for purposes of being incorporated in the Special Rapporteur's report, and would not be the object of judicial protection.

In its resolution l989/44 of l September l989 the Sub-Commission decided to entrust Professor Asbjorn Eide (Norway) with the preparation of a report on national experiences regarding peaceful and constructive solutions of problems involving minorities. This resolution was endorsed by the Commission in its decision l99O/l05 of 6 March l99O. Eide's preliminary report was submitted to the forty-third session of the Sub-Commission in l99l (Document E/CN.4/Sub.2/l99l/43). By decision l992/ll2 of 3 March l992, the Commission entrusted Eide with the preparation of an expanded report. Although the Rapporteur does not have judicial powers, he has considerable fact-finding competences, including the competence to carry out in loco investigations.

As to the rights of indigenous peoples, the Sub-Commission on Prevention of Discrimination and Protection of Minorities established in 1982 a Working Group on Indigenous Populations, which meets annually and has drafted a declaration on indigenous peoples' rights, which is to be submitted for proclamation by the United Nations General Assembly. The rights and freedoms covered in the draft declaration include the preservation and development of ethnic and cultural characteristics and distinct identities, protection against genocide and ethnocide, rights related to religions, languages and educational institutions, ownership, possession or use of indigenous lands and natural resources.

ILO

Discrimination against minorities in employment can be examined under procedures established by the International Labour Organisation, including those of the ILO Committee on Freedom of Association. The ILO's Governing Body is currently seised of the representations made by the International Confederation of Free Trade Unions under Article 24 of the ILO Constitution (which concerns the filing of "representations" against a ratifying State with regard to an alleged non-observance of the Discrimination [Employment and Occupation] Convention No. 111, of 1958). A Committee set up by the Governing Body to examine the representation has completed its work and adopted its report, but in view of the evolving situation in the State party, it has communicated its report to the "Government concerned", without, however, making it public, at this stage.

Under Article 26 of the ILO Constitution, complaints brought by state delegations can be examined. In 1991 the ILO published its "Report of the Commission of Inquiry appointed under Article 26 of the Constitution to examine the observance by Romania of the Discriminatin Convention, 1958, (No.111)" (ILO, Official Bulletin, Supplement 3, Vol. LXXIV, 1991, Series B). The complaint against Romania was filed in 1989 by Workers' delegates from Canada, Cote d'Ivoire, Denmark, France, Germany, Italy, Japan, Spain, Switzerland, United Kingdom, United States, Venezuela and Zambia. It concerned discrimination in employment against ethnic German and Hungarian minorities in Romania. The report establishes that the said minorities had suffered prohibited discrimination, and made recommendations to the Government of Romania.

The procedures under Articles 24 and 26 are confidential, but the conclusions can be made public.

With regard to indigenous peoples, the ILO published a study in 1953 and adopted Convention No. 107 and Recommendation No. 104 on the Protection of Indigenous and Tribal Populations. In June 1989, ILO Convention No. 169 on Indigenous and Tribal Peoples was adopted (in force 5 September 1991), creating international legal commitments binding upon States which formally ratify the text. Violations of the Convention could be brought before the Governing Body for investigation, and eventually before the International Court of Justice.

UNESCO

The United Nations Education, Scientific and Cultural Organization has established a procedure of examination of individual complaints, which members of minorities could use. Since the procedure is entirely confidential, no information is publicly available that would allow an evaluation of its effectiveness in providing redress for violations.

UNESCO, however, has carried out useful standard-setting by adopting Conventions such as the Convention against Discrimination in Education (in force 22 May 1962) and the Declaration on Race and Racial Prejudice (27 November 1978), which provides in Article 1, paragraph 2:

"All individuals and groups have the right to be different, to consider themselves as different and to be regarded as such."

UNESCO also proclaimed, on 4 November 1966, the Declaration of the Principles of International Cultural Co-operation, Article l of which provides:

"1. Each culture has a dignity and value which must be respected and preserved.

2. Every people has the right and the duty to develop its culture.

3. In their rich variety and diversity, and in the reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind."

II. European Jurisprudence

Unlike the Covenant on Civil and Political Rights, the European Convention on Human Rights and Fundamental Freedoms does not have any specific provision for the protection and promotion of minority rights.

While a member of a minority or a group of persons representing the minority would have standing before the European Commission, an appropriate article of the Convention must be invoked, notably Article 14, which prohibits discrimination:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

But unlike Article 26 of the International Covenant on Civil and Political Rights, which establishes an autonomous right to non-discrimination, Article 14 of the European Convention can be invoked only in conjunction with another alleged violation of the Convention. Such violations could concern Article 6, which provides for guarantees for a fair and public hearing by an independent and impartial tribunal; Article 8, which provides for protection of privacy, family life, home and correspondence; Article lO, which protects freedom of expression; Article 11, concerning freedom of peaceful assembly and association; Protocol 1, Article 1, concerning the right to property; Protocol 1, Article 2, concerning the right to education; Protocol 1, Article 3, concerning the right to free elections; Protocol 4, Article 2, concerning the right to freedom of movement; Protocol 4, Article 3, concerning the prohibition of the expulsion of nationals; and Protocol 4, Article 4, concerning the prohibition of the collective expulsion of aliens.

Thus, in a case where the applicant did not link his claim of alleged discrimination to a protected right in the Convention, the European Commission found that "the situation complained of falls outside the scope of the provisions of the Convention ...The Convention does not provide for any rights of a ... minority as such, and the protection of individual members of such minority is limited to the right not to be discriminated in the enjoyment of the Convention rights on the grounds of their belonging to the minority (Article 14 of the Convention)." ( X v. Austria (Application No. 8142/78, 18 Decisions et Rapports, pp. 92-93 (1979); cf. Digest of Strasbourg case-law).

Right to use minority language in judicial and administrative proceedings

Members of the Breton minority in France have brought their cases before the European Commission, as they have before the Human Rights Committee. Application No. 10210/82 came from a Breton who, as part of a concerted effort to promote Breton identity, claimed the right to an interpreter before a French court, invoking Articles 6 and l4 of the Convention. In holding the application inadmissible, the Commission observed: "The applicant also invokes Article 14 in this regard, alleging that he was discriminated against as a member of a national minority. The applicant, however, has not shown that he was treated differently from any other accused who, being capable of understanding the proceedings, sought to defend himself in another language."

In the case of Bideault v. France (No. ll26l/84, Dec. 6 October l986, D.R. 48, p. 232) the Commission had to examine the question whether Article 6, paragrah 3 (d) and Article 14 of the Convention had been violated because a court refused to hear witnesses who wished to speak in Breton, without even checking first whether they were able to speak French. The Commission noted that the decision was based on a provision of the French Code of Criminal Procedure according to which the services of an interpreter should be called upon only if the accused or witness did not have a sufficient command of French, which was not alleged to be the case. It observed that Article 6, paragraph 3 (d), did not guarantee a right of witnesses to speak in a language of their choice, and since the witnesses had not claimed that they were unable to speak French, the Commission also denied a violation of Article 6, paragraph 1, and of Article l4.

In case No. 808/6O, Isop v. Austria (Dec. 8 March l962, Yearbok 5, p. lO8), the Commission denied that a right to "linguistic freedom" was enshrined in the Convention, where the applicant claimed the right to use the Slovene language in a civil court procedure; similarly in case No. 2332/64, X. and Y. v Belgium (Dec. 7 October l966, Yearbook 9, p. 4l8), concerning the use of the Flemish language in civil court proceedings.

In three further cases it was considered whether a right to linguistic freedom could be derived from Article 9 (freedom of thought and conscience) or l0 (freedom of expression). This was denied, as the applicants were not prevented "from expressing their thoughts freely in the language of their choice". The Commission considered that the right claimed by the applicants to have "the imprint of their own personality and of the culture they acknowledge as their own, take first place among the factors conditioning the education of their children, in order that their children's thinking should not become alien to their own" was outside the scope of Articles 9 and lO (cf. No. l474/62, Inhabitants of Alsemberg and Beersel against Belgium, Dec. 26 July l963, Yearbook 6, p. 332; No. l769/63, X. and others v. Belgium, Dec. 26 July l963, Yearbook 6, p. 44; No. 2333/64, Inhabitants of Leeuw-St. Pierre v. Belgium, Yearbook 8, p. 338, where the same principle was applied to use of languages in contact with the authorities).

In the case of the Fryske Nasjonale Partij and others v. the Netherlands (No. lllOO/84, Dec. l2 December l985, D.R. 45, p. 240) the Commission observed that Articles 9 and lO "do not guarantee the right to use the language of one's choice in administrative matters" and noted that the applicants had failed to demonstrate "that they were also prevented from using Frisian language for other purposes". A particular problem in that case concerned the language in which the registration for election to Parliament should take place. The Commission found:

"that nothing prevented the applicants from submitting a translation into Dutch of their request for registration of the name of the party and list of candidates respectively. Moreover, neither Article 3 of Protocol No. 1 to the Convention, nor any other provision of the Convention guarantees the right to use a particular language for electoral purposes. Consequently, the Commission is of the opinion that the applicants may not claim that their right to stand as a candidate for election was limited by the requirement that registration could only take place in Dutch."

Thus, it would appear that only national legislation or a Protocol to the Convention providing for promotion of minority languages would allow Bretons and others to vindicate their linguistic identity in public life.

Right to access to schools in minority language

Perhaps the leading case on discrimination in Europe is the Belgian Linguistics Case (Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Merits), Judgment of 23 July 1968, Series A, Vol. 6), which provides a good definition of discrimination:

"In spite of the very general wording of the French version (sans distinction aucune), Article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognised. This version must be read in the light of the more restrictive text of the English version ('without discrimination') ... It is important, then, to look for the criteria which enable a determination to be made as to whether or not a difference in treatment, concerning of course the exercise of one of the rights and freedoms set forth in the Convention, contravenes Article 14. On this question the Court, following the principles which may be extracted from the legal practice of a large number of democratic states, holds that the principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised." (at p. 34)

In that case French-speaking parents challenged the Belgian school system, which divided the country into various regions for the purpose of determining the language of instruction. The principal ground of challenge was incompatibility with Article 2 of the First Protocol to the Convention, which guarantees respect for the "right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions." While finding no violation with respect to five of the authors' questions and rejecting their claims for affirmative action, the Court still held the system to be in violation of Article 14 of the Convention in conjunction with Article 2 of the First Protocol, insofar as it denied the children of French-speaking parents access to French language schools solely on the basis of their residency.

Family life

As to the protection of family life, the Court interpreted the scope of Article 8 very narrowly and did not make a finding of violation. It held:

"It is true that one result of the Acts of 1932 and 1963 has been the disappearance in the Dutch unilingual region of the majority of schools providing education in French. Consequently, French-speaking children living in this region can now obtain there only education in Dutch, unless their parents have the financial resources to send them to private French-language schools. This clearly has a certain impact upon family life when parents do not have sufficient means to enrol their children in private schools ... Harsh though such consequences may be in individual cases, they do not involve any breach of Article 8. This provision in no way guarantees the right to be educated in the language of one's parents by the public authorities or with their aid. Furthermore, in so far as the legislation leads certain parents to separate themselves from their children, such a separation is not imposed by this legislation: it results from the choice of the parents who place their children in schools situated outside the Dutch unilingual region with the sole purpose of avoiding their being taught in Dutch, that is to say in one of Belgium's national languages."

24 years after the Belgian Linguistic Case, neither the Commission nor the Court have further developed the discrimination and family life concepts, so as to allow promotion of minority rights through affirmative action. In the author's opinion, actions taken by States on behalf of minorities could realistically be justified under Article 14, because any preferential or special treatment would be based on reasonable and objective criteria and intended to further an aim compatible with the Convention.

An important right for minorities in Europe is protected by article 11: the right to peaceful assembly and association. One could thus envisage a case in which minorities could invoke this article if their right to demonstrate peacefully were unreasonably denied.

In some circumstances discriminatory treatment of a minority could be deemed to constitute not only a violation of Article 14, but also of Article 3, which prohibits inhuman and degrading treatment. In East African Asians v. United Kingdom (1970) [13 YbECHR 928 at 994 (1981)] the Commission signalled that in the appropriate circumstances race discrimination may amount to a violation of Article 3.

As to the right to privacy, an ethnic, religious or linguistic minority may invoke Article 8 for the proposition that "a minority group is, in principle, entitled to claim the right to respect for the particular life style it may lead as being 'private life', 'family life'or 'home'" (dictum in G and E v. Norway (Application Nos. 9278 and 7415/81, 35 Decisions and Reports, pp. 30, at 35/36 (1983), declared inadmissible as manifestly ill-founded).

Collective rights

The Commission has stated that the right to self-determination is not guaranteed by the Convention in case No. 6742/74, D.R. 3 p. 98 concerning Germans formerly living in Czechoslovakia, and No. 723O/75, D.R. 7 p. lO9 concerning the autochthon population of Suriname.

In a case concerning a linguistic census in Austria, the Commission stated that "the Convention does not provide for any rights of a linguistic minority as such, and the protection of individual members of such minority is limited to the right not to be discriminated in the enjoyment of the Convention rights on the ground of their belonging to the minority." Moreover, the Commission found that no issue of discrimination could arise because there was no other Convention right at issue. The fact that the applicant had been required to state the language used by her was regarded as falling outside the scope of Article 3 (degrading treatment) as she had not been prevented from stating that she considered herself a member of the Slovene minority (No. 8l42/78, D.R. l8 p. 88).

In a matter concerning alleged discrimination of Norwegian Lapps, the Commission confirmed that "the Convention does not guarantee specific rights to minorities". It observed that the applicants, as other Norwegians, had the right to vote and stand for elections to the Norwegian Parliament, and that they were thus "democratically represented in Parliament, although Lapps have no secured representation for themselves." The Commission also expressed the opinion that "under Article 8, a minority group is in principle entitled to claim the right to respect for the particular life-style it may lead as being 'private life', 'family life' or 'home'". However, the construction of a hydroelectric plant in part of the area where the applicants lived, while it constituted an interference with their private life as members of a minority, was considered by the Commission as being justified under Article 8, paragraph 2, since the applicants could continue their life as reindeer shepherd and fishermen and hunter respectively, having regard to the vast areas in Northern Norway which are used for reindeer breeding and fishing (Nos. 9278/8l and 94l5/8l, Dec. 3 October l983, D.R. 35 p. 3O).

Discrimination of a national minority with respect to several Convention rights was, however, established in the inter-State case of Cyprus v. Turkey (Comm. Report lO July l976, para 5O3). The relevant criterion being that the measures concerned were specifically directed against the Greek Cypriot population in the North of Cyprus.

The 1991 Draft European Convention for the Protection of Minorities

In March 1991 the European Commission for Democracy through law, a consultative body of the Council of Europe, produced a Proposal for an European Convention for the Protection of Minorities, which was intended for adoption by the CSCE. This draft built on the duty of States to "create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of national minorities", as expressed in paragraph l9 of the Vienna Concluding Document of the CSCE meetings 1986-89, and on the Copenhagen Meeting of 1990, paragraphs 32 and 34 of which provide for the use by recognized minorities of their mother tongue in private and public and for instruction in their mother tongue. Paragraph 35 goes on to assert the right of persons belonging to minorities to "effective participation in public affairs" and the commitment of States to establish "appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities." At the Geneva Meeting of Experts on National Minorities in July 1991, it was further emphasized that issues concerning national minorities and compliance with international obligations and commitments concerning minorities "are matters of legitimate international concern and consequently do not constitute an internal affair of the respective state."

It is to be hoped that the proposed convention will be concluded by the CSCE (in spite of objections by the United States and the United Kingdom), thus giving rise to justiciable rights, the violation of which could be brought by States parties to the Convention before the International Court of Justice. If the Convention is not adopted by the CSCE, perhaps the text could be endorsed by the Council of Europe and transformed into a Protocol to the European Convention, which would thus open the international judicial instances of the European Commission and Court to the protection of minority rights. Other proposals are to establish an arbitration council or an European commission on minorities.

High Commissioner for Minorities

A meeting on "Minorities and Refugees in the CSCE" took place in Helsinki on 25-27 May l992, at which a proposal was submitted by 20 State Delegations concerning the appointment of a CSCE High Commissioner for Minorities. Emphasizing the need for "early warning" and "early action", the representatives for minorities, as well as NGOs, welcomed the initiative. At the CSCE follow-up meeting in Helsinki on 9-10 July 1992, a Resolution was adopted to establish the Office of a High Commissione and his terms of reference were laid down. Although the High Commissioner would not be judicial instance as such, he would apply international jurisprudence on minorities rights and would refer matters to judicial review by the European Commission of Human Rights.

Additional protocol to the European Convention

On 26 November 1991 Austria submitted to the Committee of Ministers of the Council of Europe a draft Protocol on the Protection of ethnic groups. Besides providing a definition of the term "ethnic group" (Volksgruppe), it guarantees the right of members of the ethnic group to have an effective remedy before national courts in case of violation of these rights under the Protocol (Article 9). Pursuant to Article 13 of the Protocol, violations could also be brought before the Commission pursuant to Article 25 of the European Convention.

In Recommendation No. 1177 (1992) on the rights of minorities, the Parliamentary Assembly of the Council of Europe welcomed the Austrian draft and expressed the urgency of adopting an instrument with an efficient supervisory machinery.

Draft European Charter for Regional or Minority Languages

A draft charter for regional or minority languages is currently before the Committee of Ministers of the Council of Europe. It was prepared by a Council of Europe committee of experts, instructed to do so by the Committee of Ministers further to the Standing Conference of Local and Regional Authorities of Europe and Parliamentary Assembly Opinion No. 143 (1988). The committee of experts completed its work in the spring of 1991. Two characteristics are worth highlighting: the exclusion of migrants' languages, and supervision of the application of the charter primarily by governments. Still, the adoption of the draft would provide additional impetus to the promotion and protection of regional languages like Breton, which have proven hard to vindicate before the United Nations Human Rights Committee and the European Commission of Human Rights.

III. Peoples and Minorities in the Americas

Article 3 (j) of the 1948 Charter of the Organization of American States proclaims the principle of "the fundamental rights of the individual without distinction as to race, nationality, creed or sex." It did not, however, define the meaning of the "fundamental rights of the individual", nor establish a mechanism to promote or protect them.

The American Convention on Human Rights, adopted in l969 at San Jose, Costa Rica, entered into force in July 1978. Although it does not have any specific provisions to protect and promote peoples and minorities rights, it does ensure at least equality of treatment: Article 1 guarantees individual rights "without any discrimination for reasons of race, color, sex, language, status, birth, or any other social condition." Article 24 provides: "All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law."

More importantly, the Convention indicates that its provisions cannot be interpreted as "restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State party or by virtue of another convention to which one of the said States is a party" (Article 29 (b)). Thus, for all parties to the American Convention which are also parties to the International Covenant on Civil and Political Rights, the specific protection of minority rights under Covenant Article 27 cannot be restricted.

The Inter-American Commission on Human Rights has dealt with some indigenous cases that are of interest. In the case of the Miskito Indians of Nicaragua, one of its leaders, Mr. Brooklyn Rivera, addressed a complaint to the Commission in the hope of obtaining a settlement that would allow the Indians the use of their lands and autonomy within the State of Nicaragua. He explained: "The principal reason for the Indian rights crisis in Nicaragua is the antagonism created by the Sandinista government policy which denies the ethnic identity of our Indian peoples. It follows that the recognition of Indian rights to their territory and their autonomy is also denied. The government's policy required assimilation of Indians to the philosophy and culture of those who control the government in Managua, thus converting us into peasants and mestizos without definition and aboriginal rights."

The Inter-American Commission concluded in its Report:

"In the view of the Commission, for an ethnic group to be able to preserve its cultural values, it is fundamental that its members be allowed to enjoy all of the rights set forth by the American Convention on Human Rights, since this guarantees their effective functioning as a group, which includes preservation of their own cultural identity Particularly relevant are the rights to protection of honor and dignity; freedom of thought and expression; the right of assembly and of association; the right to residence and movement and the right o elect their authorities.

"Although the current status of international law does not allow the view that the ethnic groups of the Atlantic zone of Nicaragua have a right to political autonomy and self-determination, special legal protection is recognized for the use of their language, the observance of their religion, and in general, all those aspects related to the preservation of their cultural identity. To this should be added the aspects linked to productive organization, which includes, among other things, the issue of the ancestral and communal lands. Non-observance of those rights and cultural values leads to a forced assimilation with results that can be disastrous. For that reason, the Commission considers that it is fundamental to establish new conditions for coexistence between the ethnic minorities and the Government of Nicaragua, in order to settle historic antagonisms and the serious difficulties present today. In the opinion of the IACHR, the need to preserve and guarantee the observance of these principles in practice entails the need to establish an adequate institutional order as part of the structure of the Nicaraguan state. Such an institutional organization can only effectively carry out its assigned purposes to the extent that it is designed in the context of broad consultation, and carried out with the direct participation of the ethnic minorities of Nicaragua, through their freely chosen representatives." (OEA/Ser.L/VII.62, doc.26, May l6, l984)

Case No. 7615 (Brazil) concerned the right of the Yanomami of Brazil to preservation of health and well-being and protection against genocide. In its Resolution l2/85 of 5 March l985, the IACHR declared "that there is sufficent background information and evidence to conclude that, by reason of the failure of the Goverment of Brazil to take timely and effective measures on behalf of the Yanomami Indians, a situation has been produced that has resulted in the violation, injury to them, of the following rights recognized in the American Declaration of the Rights and Duties of Man: the right to life, liberty and personal security (Article 1); the right to residence and movement (Article VIII); and the right to the preservation of health and to well-being (Article XI)." The IACHR recommended inter alia "that the Government of Brazil ... proceed to set and demarcate the boundaries of the Yanomami Park... that the programs of education, medical protection and social integration of the Yanomamis be carried out in consultation with the indigenous population affected and with the advisory service of competent scientific, medical, and anthropological personnel" (OEA/Ser.L/VII.66 doc.10, rev. 1, October 1, 1985).

As to the concept of discrimination, the Inter-American Commission and Court have not developed much jurisprudence. One advisory opinion of the Court does, however, provide some guidance in this respect, indicating that "not all differences in treatment are in themselves offensive to human dignity" (para. 55). In its Advisory Opinion OC-4/84 of January 19, 1984, Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica (5 HRLJ 161) the Inter-American Court made reference to the judgment of the European Court in the Belgian Linguistics Case, and concluded that:

[N]o discrimination exists if the difference in treatment has a legitimate purpose and if it does not lead to situations which are contrary to justice, to reason or to the nature of things. It follows that there would be no discrimination in differences in treatment of individuals by a state when the classifications selected are based on substantial factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review. These aims may not be unjust or unreasonable, that is, they may not be arbitrary, capricious, despotic or in conflict with the essential oneness

and dignity of humankind." (para. 57)

As to the concept of "affirmative action" on behalf of minorities, it would seem, on the basis of the above jurisprudence, that such action would not be deemed to constitute discrimination against the majority, and thus that minorities would be well advised to articulate their needs and to demand appropriate State measures to ensure their ability to meaningfully enjoy their own cultural identity.

IV. Minorities in Africa

The African Continent is a mosaic of peoples separated by often artificial boundaries going back to the colonial period. There are few countries without minorities and minority problems. Following a Summit of Heads of State and Government of the Organization of African Unity held in Monrovia in 1979, an African Charter on Human and Peoples' Rights providing inter alia for bodies responsible for promotion and protection was adopted. The Charter entered into force on 21 October 1986.

Pursuant to Article 30 of the Charter an African Commission on Human and Peoples' Rights was established with seat in Banjul, the Gambia. Pursuant to Article 55, the Commission may consider communications from individuals relating to human and peoples' rights. Thus, peoples and minorities could make use of this procedure, which, as in the case of the United Nations Human Rights Committee, is confidential. Upon decision by the Assembly of Heads of State and Government, the report of the Commission may be published.

CONCLUSION

The international judicial protection of minority rights has been gaining ground over the last decade, albeit very slowly. The need for protection of minority rights, however, appears to be more evident than ever, especially considering recent outbreaks of violence and even civil war, which may be directly attributable to ethnic or religious conflict.

It is interesting to note that the International Court of Justice, apart from decolonization cases in Africa, has not been seised of issues concerning peoples' and minority rights, and thus has yet to develop a jurisprudence in the field, unlike its predecessor, the Permanent Court of International Justice, which examined many cases referred to it by States and by the Council of the League of Nations, and adopted important judgments and advisory opinions. In the absence of minority treaties , the ICJ is yet to adopt a decision as progressive as that of the PCIJ in the Case of the Albanian Minority Schools mentioned above.

The newly adopted United Nations Draft Declaration on the Rights of ethnic and national, religious and linguistic minorities, is likely to be used more and more as a point of reference and cited in national and international court decisions. Considering, however, that minority problems are extensive and multifaceted, it would be desirable to continue efforts for the adoption of an International Convention on the Rights of Minorities. The Draft European Convention for the Protection of Minorities is a good model. It has also been suggested to establish an Office of a High Commissioner for Minorities, which could function within the United Nations family or regionally for the CSCE countries.

It is also worth pondering whether a special international Committee or Court should be called into being in order to better monitor the protection and promotion of minority rights. Such a specialized body would be more likely than the Human Rights Committee or the European Commission to come to grips with the reality that minorities do not only strive for equality and non-discrimination, but that they aspire to a right to assert their identity, and that this right to maintain an identity and a cultural heritage may require not only tolerance from States parties but also affirmative action.

Is it not an anomaly that prior to the Second World War human rights were largely identified with the rights of minorities? It seems like we are emerging from a long period of amnesia and rediscovering rights that seemed recognized and established 70 years ago. Maybe we shall even agree on a definition of peoples and minorities before we enter the twenty-first century.

BIBLIOGRAPHY

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_______________________________

* Visiting professor of international law. DePaul University, Chicago. Senior Human Rights Officer, Office of the High Commissioner for Human Rights, United Nations, Geneva. This article is written in the author's personal capacity. Thoughts expressed and observations made do not necessarily reflect the views of the United Nations Secretariat or of the United Nations organs concerned

¹ The recent efforts of the United Nations Education, Scientific and Cultural 6rganization to arrive at a definition of the term "peoples" should be mentioned. International Meeting of Experts on further study of the concept of the rights of peoples, 27-30 November 1989, SHS-89/CONF. 602/7).

² Oldrich Andrysek, Report on the Definition of Minorities, The Netherlands Institute of Human Rights, SIM Special No.8 (1989). Francesco Capotorti, Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, UN Doc.E/CN.4/Sub.2/384/Rev.l (1979). Gudmundur Alfredsoon, "Equality and Non-Discrimination: Minority Rights", Report to the Council of Europe in connection with the Seventh Inernational Colloquy on the European Convention on HumanRights, Strasbourg, 1991 [H/Coll (90) 6]; Alfredsson, "Minority Rights and Democracy", discussion paper on Human Rights, fundamental freedoms and the Rihts of Minorities, submitted to the Third Strasbourg Conference on Parliamentary Democracy, Strasbourg, 1991 [SXB.CONF (III) 8], reproduced in Compenbdium of Documents from the Conference, Parliamentary Assembly of the Council of Europe, Srabourg, 1992, pp. 85-101.

³ Martens NRG3, Vol. 13, pp. 504-511).

⁴ Martens, NRG3, Vol. 16, pp. 645-875.

⁵ Patrick Thornberry, International Law and the Rights of Minorities, Oxford, 1991, p. 46.

⁶ A. de Zayas, Nemesis at Potsdam, the Anglo-Americans and the Expulsion of the Germans, University of Nebraska Press, third edition, 1990. A. de Zayas, "International Law and Mass Population Transfers", in: Harvard International Law Journal, vol. 16 (1975), pp. 207-258.

⁷ Christian Tomuschat, Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights, in: Voelkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte, Festschrift fuer Hermann Mosler (1983) pp. 949-979 at 970.

⁸ Alfred de Zayas, Jakob Th. Moeller and Torkel Opsahl, "Application of the International Covenant on Civil and Political Rights under the Optional Protocol by the Human Rights Committee" in : German Yearbook of International Law, vol 28 (1985), pp. 9 to 64. Reprinted as Reprint No. 1 of the UN Centre for Human Rights in Geneva. As to the question of hearings, an amendment to he Committee's rules of procedure may become necessary to accommodate the need, in appropriate cases, to hold hearings with applicants (authors) and representatives to the State party. Requests fr hearings have been increasingly addressed to the Committee.

⁹ UN Secretary General: the Main Types and Causes of Discrimination, UN Publ. 49, XIV.3, paragraphs 6-7.

¹⁰ Human Rights Committee, 1990 Annual Report to the General Assembly, Annex , pp.

¹¹ HRC Annual Report

¹² Ibid., p.

¹³ HRC Anual Report, Annex

¹⁴ HRC Annual Report, Annex

¹⁵ Ibid., p.

¹⁶ Ibid., para.

¹⁷ Ibid., para.

¹⁸ HRC Annual Report, Annex.

¹⁹ Neue Justiz No. 4/1992, pp.

²⁰ HRC Annual Report, Annex , para. .

²¹ Documents CCPR/C/22/Add.2 and CCPR/C/46/Add.2.

²² See the individual, dissenting opinion of Professor Rosalyn Higgins, in cases Nos. 220/1987 T.K. v. France, and No. 222/1987, M.K. v. France, declared inadmissible on 8 November l989, arguing that the French declaration need not be equated with a reservation. HRC Annual Report, Annex.

²³ HRC Annual Report, Annex. para. .

²⁴ HRC Annual Report, Annex .

²⁵ CERD Annual Report, Annex .

²⁶ CERD Annual Report, Annex.