The Human Rights Committee protecting minorities

1. The Human Rights Committee protecting minorities Prof. Michael O’Flaherty June 2010

2. The Committee • The ICCPR treaty body • 18 independent experts elected by States Parties • Review of periodic reports • Consider individual communications • Generate General Comments

3. 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

4. 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’.

5. 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

6. 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”

7. “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)

8. “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.

9. Types of minority • Ethic • Religious • Linguistic • Closed list

10. “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)

11. 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

12. “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?

13. “profess and practice their own religion” • Prince v. South Africa (2007): Not every interference constitutes a violation.

14. “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

15. 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

16. 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.

17. 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).

18. 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

19. 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: recognizeTravellers 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

20. 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

21. 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”

22. 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.

23. Concluding points • Potential to promote minority rights under CCPR • Limited jurisprudential guidance • Unsung significance of the reporting process • Towards better use of that process.