Anna Meijknecht (a.kijknecht@uvt.nl) Tilburg University, The Netherlands 16 June 2010, Galway

1. The OSCE HCNM and the FCNM in the context of other approaches towards minorities and indigenous peoples. Anna Meijknecht (a.k.meijknecht@uvt.nl) Tilburg University, The Netherlands 16 June 2010, Galway

2. Outline • OSCE HCNM • STRUGGLE • PARADOX • APPROACHES ---- Extra: COE • EFFECT

3. The OSCE High Commissioner on National Minorities (HCNM) http://www.osce.org/hcnm

4. OSCE Area

5. 56 Participating States Comprehensive and cooperative approach: * three dimensions of security → political/military; economic/environmental; human dimension all 56 States enjoy equal status → decisions are taken by consensus on a politically, not legally binding basis

6. OSCE Documents Helsinki Final Act (1975) Madrid Concluding Document (1983) Vienna Concluding Document (1989) Copenhagen Document (1990) Charter of Paris for a new Europe (1990) Moscow Document (1991) Geneva Expert Meeting on National Minorities (1991) Helsinki Document ‘Challenges of Change’ (1992)

7. High Commissioner on National Minorities

8. Mandate To provide ‘early warning’ and, as appropriate, ‘early action’ at the earliest possible stage in regard to tensions involving national minority issues which have not yet developed beyond an early warning stage, but, in the judgment of the HCNM, have the potential to develop into a conflict within the OSCE area

9. Early warning: two functions 1) To try to contain and de-escalate tensions; 2) Alerting the OSCE Permanent Council whenever such tensions threaten to develop to a level at which he cannot contain them with the means at his disposal

10. Characteristics Independence and Impartiality Confidentiality Cooperative attitude Non-confrontational

11. Working Methods Country visits Initiating and maintaining dialogue Project work Recommendations: - country specific - general

12. HCNM Guidelines also main themes of HCNM involvement) Hague Recommendations regarding Educational Rights of National Minorities (1996) Oslo Recommendations on the Linguistic Rights of National Minorities (1998) Lund Recommendations on the Effective Participation of National Minorities in Public Life (1999) Guidelines on the Use of Minority Languages in the Broadcast Media (2003) Recommendations on Policing in Multi-Ethnic Societies (2006) Bolzano/Bozen Recommendations on National Minorities in Inter-State Relations (2008)

13. Limitations mandate HCNM will not consider national minority issues in the State of which he is a national or involving a national minority to which he belongs; only if all parties agree; HCNM will not consider situations involving organized acts of terrorism; HCNM will not consider individual cases.

14. Future for the OSCE / HCNM? Influence EU accession / Copenhagen Criteria More attention to racism, xenophobia and anti-Semitism? Attention for issues of ‘new’ minorities? Cooperation!!

15. CONCLUSION?

16. THE STRUGGLE OF STATES WITH MINORITIES AND IP WHO/WHAT? WHY? HOW? - approaches WHO? - paradox - process RESULT?

17. HOW? Diff. Approaches Assimilation Integration Paradox of minority protection Internationalization (LoN ect. ) - process of minority protection International standardsetting (how?) Granting Rights (what kind?) Protection of language or culture

19. Paradox of minority protection Sovereign states, who themselves pose the greatest danger to minorities and indigenous peoples, are entrusted with their protection Internationalization

20. PROCESS OF MINORITY PROTECTION 1) (LoN, VN, CoE, EU, OSCE, OAS, ASEAN etc.) Development of standards Adoption of document Ratification 2) (States) Implementation: Constitution National legislation Policy measures Regional Local 3) Community Minority (individuals): “reality”

21. DIFFERENT APPROACHES UN : individual HRC : indivdual + UNESCO: Diversity HCNM: prevention COE: Margin of appreciation INDIGENOUS PEOPLES: collective

22. UNITED NATIONS UN renounced the notion of group rights and group identity. No reference to minorities in UDHR Instead: human rights Article 27 ICCPR Other relevant UN Conventions?

23. Human Rights Committee HRC monitors the implementation of the ICCPR: State reports (art. 40 ICCPR) Inter-State complaints procedure (art. 41 ICCPR) Optional Protocol to the ICCPR established the individual complaints procedure General Comments (e.g. No. 23)

24. Article 27ICCPR In those states in which ethnic, religious, or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of the group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

26. UNESCO Cultural Diversity Heritage Language. http://www.unesco.org/culture/ich/index.php?pg=00206

27. The OSCE High Commissioner on National Minorities (HCNM)

29. The Council of Europe and Minority Rights The ECHR - Art. 14 The European Charter for Regional or Minority Languages (in force 1998) The Framework Convention for the Protection of National Minorities(in force 1998)

30. Minority Case Law ECHR Articles Linguistic minorities Religious Minorities Roma Significance?

31. The European Charter for Regional or Minority Languages Purpose: cultural Definitions Scope: traditionally used within a state’s territory. No dialects or languages of migrants A la carte commitments Reporting system

32. Framework Conventionfor the protection of National Minorities http://www.coe.int/t/dghl/monitoring/minorities/1_AtGlance/PDF_MapMinorities_bil.pdf Why?: “essential to stability, democratic security and peace in this continent’’. Ratifications: also non-COE members!

33. Specific features of the framework convention Relation to Human Rights (Case-law ECHR) No definition No collective rights Difference FC-Convention Programme-type provisions Not directly applicable Margin of appreciation (art. 14)

34. Framework Convention a Mockery? Arguments pro / contra FC Success or failure FC depends on its supervision / monitoring mechanism

35. DIFFERENT APPROACHES UN : individual HRC : indivdual + UNESCO: Diversity HCNM: prevention COE: Margin of appreciation INDIGENOUS PEOPLES: collective

36. WHAT ABOUT INDIGENOUS PEOPLES?

38. Approach: Treaties with Indigenous Peoples history, terra nullius, colonization, treaties Treaties on Indigenous Peoples definitions, international documents Cooperation with Indigenous Peoples instruments and fora Thus: A COME BACK

39. Representative of the International Treaty Council: ‘Within our Indigenous Nations, the collective good of the peoples is paramount over the rights of the individual. That is not to say that the rights of the individual are not respected. On the contrary, the rights of the individual are respected as long as they do not take away from the collective good of the People. This premise is the very key to the survival of not only our Peoples, but the survival of the planet as a whole. The huge problems in this world with the environment are caused in most part by individuals who are not respecting the right to life of peoples as a whole.’

40. Relevant Documents Article 27 ICCPR ILO Conv. (107) 169: Convention Concerning Indigenous and Tribal Peoples in Independent Countries http://www.unhchr.ch/html/menu3/b/62.htm UN Declaration on the Rights of Indigenous Peoples 2007 http://www.un.org/esa/socdev/unpfii/en/drip.html

41. III. Cooperation with Indigenous Peoples UNDRIP UN Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People UN Permanent Forum on Indigenous Issues

42. EFFECT?

43. PROCESS OF MINORITY PROTECTION 1) (LoN, VN, CoE, EU, OSCE, OAS, ASEAN etc.) Development of standards Adoption of document Ratification 2) (States) Implementation: Constitution National legislation Policy measures Regional Local 3) reality Community (Ind. Peoples) Minority (individuals)

44. Effect? ASSESSMENT? ANY PROBLEMS? League of Nations - history UN- HRC? - pressure OSCE? – unknown…. COE- FCNM? – definition EU? - ?? Roma?? UNESCO? – nice work, sophisticated, diversity ASEAN? - non-interference, diversity INDIGENOUS PEOPLES – UNPFII, IACHR – implementation Vote?

45. SOLUTION?

46. UN Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People Professor Rodolfo Stavenhagen (Mexico) 2001-2008. Now: James Anaya (USA) http://airtrust.wordpress.com/dvd/ (chapter 6) Mandate The Special Rapporteur's mandate is: ·     To gather information and communications from all relevant sources – including governments, indigenous peoples and their communities and organisations – on violations of human rights and fundamental freedoms of indigenous peoples. ·     To formulate recommendations and proposals on measures and activities to prevent and remedy violations of the basic human rights and fundamental freedoms of indigenous peoples. ·     To work in close contact with other special rapporteurs, special representatives, working groups and independent experts   To investigate specific human rights complaints.

47. Conclusions? Struggle solved? FOR STATES: YES…no…. FOR MINORITIES/ INDIGENOUS PEOPLES? 3 STAGES….why, who, how.. (answers known?) KEYWORDS FOR NEXT STAGE ?

48. The European Union and Minority Rights

49. EU approach? (Stick and) Carrot? Double standards?

50. External policy: Accession Copenhagen 1993 Agenda 2000+Annual Reports Association Agreements