Protection Of National Minorities Research Articles

La protección de las minorías: un desafío en clave de constitucionalismo multinivel

El tratamiento jurídico-constitucional de las minorías y su protección en un contexto estatal donde la mayoría puede anular lo que es diferente a ella, constituye una problemática a afrontar en auge en la realidad multicultural en la que nos desenvolvemos, profundamente influenciada por los avances en política social y una moderna comprensión del sistema democrático. La protección en el marco jurídico-constitucional de estos grupos, la definición del concepto de “minoría” sin que haya sido posible alcanzar un consenso, así como el limitado reconocimiento en España de su realidad, son objeto de análisis en este trabajo.

Investigating the Role of Permanent Court of International Justice in the Development of International Minority Protection System

Minority rights are increasingly recognized as an integral part of the United Nations' strategy towards the promotion and protection of human rights, sustainable human development, and peace and security. Permanent Court of International Justice (hereinafter PCIJ), has played a pivotal and determinative role in interpreting and developing international legal framework concerned with the protection of minorities. Interestingly, the related material of some highly significant human rights instruments such as International Covenant on Civil and Political Rights, Convention on the Rights of the Child, Framework Convention for the Protection of National Minorities as well as the 1992 UN Declaration on the Rights of Persons belonging to Ethnic, National, Religious and Linguistic Minorities is based on and built upon the case law of PCIJ regarding minorities and their rights. Views and precedent of PCIJ in this regard could be regarded a reliable foundation for the protection of minorities and promotion of their rights within the framework of UN and other relevant international and regional mechanisms. Accordingly, following PCIJ's opinions and precedent as to minority rights can pave the way for an evolution in protection of these groups through specific binding international instruments. The present study, through a descriptive-analytic approach, attempts to investigate the role of PCIJ in development of international minority protection system.

인권조약 이행감독 메카니즘과 실효적 인권보호: 소수민족보호를 위한 골격협약 (FCNM) 하에서의 집단진정절차 도입 필요성을 중심으로

소수자권리 보호의 국제적 노력은 1998년 FCNM이 발효하면서 새로운 국면에 접어들었다. FCNM은 소수자보호를 정면으로 내세운 현존 유일의 다자조약으로서 유럽이라는 지역적 한계는 있지만 소수자보호의 현행국제법 수준을 선도하는 조약임에는 틀림없다. 본 논문은 FCNM이 실효적인 소수자권리보호를 위해 기능하기 위해서는 조약 이행감독 메카니즘을 업그레이드해야할 필요성에 주목한다. 특히 UN 인권조약 이행감독 메카니즘으로서의 진정(complaints)절차의 긍정적 측면에 주목하면서 FCNM 하에서도 진정절차를 도입할 필요가 있다고 강조한다.BR 진정절차를 도입하는 방식과 진정절차의 종류 그리고 이에 따른 기존 FCNM 이행감독 메카니즘 하에서의 관련 기구의 역할 등이 각각 쟁점으로 등장한다. 그러나 본 논문은 FCNM의 이행감독 메카니즘의 개선이 급진적인 방향으로 이뤄질 수 없음을 지적한다. 즉 FCNM의 조약명이 골격협약이라고 불리듯이 동 조약에는 이른바 비자기집행적 성격의 규정들이 많기 때문이며, 소수자보호의 현행국제법 발달 수준을 무시한 급격한 방식의 도입은 애초부터 성공가능성이 없기 때문이다. 그런 측면에서 본 논문은 FCNM의 하에서 도입될 진정은 개인진정절차가 아닌 집단진정절차여야 한다고 주장한다. 개인진정절차는 그 장점에도 불구하고 FCNM의 성격과 소수자보호의 현행국제법 발달 정도에 비춰 과격한 제도일 수 있기 때문이다. 오히려 집단진정절차를 도입함으로써 그간 FCNM 이행감독 과정에서 큰 역할을 해온 AC에 더 큰 힘을 실어줄 필요성이 있으며 진정사건을 심리하고 결정하는 AC와 각료위원회의 건설적인 역할 분담에 의해 당사국의 소수자권리 보호 의무를 더욱 강하게 압박할 수 있기 때문이다. 게다가 집단진정절차를 확립하면 AC의 이른바 소수자권리 법리론 (minority rights jurisprudence)의 전개가 더욱 심화될 것이며 이를 바탕으로 장기적으로는 개인진정절차의 도입도 가능하게 될 것이다.

Obveza zaštita manjina od Kopenhagena do danas

Hrvatska je na putu prema Europskoj uniji morala udovoljiti nizu zahtjeva. Unija je uvjete propisala na sastanku Europskog vijeća u Kopenhagenu 1993. godine, a prva skupina tih uvjeta uključivala je i zaštitu ljudskih prava i osobito prava manjina. Zaštita manjina bila je posebno važna u kontekstu oružanog sukoba koji se vodio na području bivše Jugoslavije. Tijekom devedesetih Hrvatska je postala strankom međunarodnih ugovora Vijeća Europe koji su se odnosili na zaštitu manjina: Okvirne konvencije za zaštitu nacionalnih manjina i Europske povelje za zaštitu regionalnih i manjinskih jezika. Prihvaćanjem ugovora Hrvatska se podvrgnula i međunarodnom nadzoru primjene i poštivanja svojih međunarodnih obveza. Prikazom i analizom izvještaja nadzornih tijela može se pratiti i u kolikoj je mjeri Hrvatska uspjela u tome.

Minority Cultural Autonomy in Slovenia, Croatia and Serbia: A Real Opportunity for Cultural Survival or a Right Void of Substance?

The minority cultural autonomy model, as firstly theorized by the eminent Austro Marxists Karl Renner and Otto Bauer, is said to guarantee, if properly implemented, minority protection and state stability. For a variety of reasons this model is clearly overrepresented in the region of the former “Socialist Federal Republic of Yugoslavia”, mostly in Slovenia, Croatia and Serbia. Its effectiveness, however, in minority protection in the area is under question. In some cases the right to self-proclamation in order to be registered in minority electoral catalogues is compromised (Slovenia <italic>e. g.</italic>) or partly violated (Serbia <italic>e. g.</italic>), in others the minority councils merely have a decorative ‘advisory’ role (Croatia, <italic>e. g.</italic>) and enjoy but an insufficient legitimacy due to their partial indirect election (Serbia <italic>e. g.</italic>), while in all cases they have no legislative or taxing powers and enjoy inadequate state funding. In such circumstances, if the model is to make any significant contribution to minority protection it has to be improved in the direction the Austro-Marxists proposed and the Advisory Committee of the Framework Convention for the Protection of National Minorities has recently opined. Otherwise, it would be better to abandon the term as an analytical tool since in its present forms it offers autonomy only by euphemism, serving more as a state strategy for minority patronage than as an effective device for minority protection.

Linguistic Rights in the Education System in Light of the Framework Convention for the Protection of National Minorities (By the Example of Poland and Lithuania)

Abstract One of the fields of protecting human rights within the framework of standards of the Council of Europe is the protection of national minorities – with the special issue of their linguistic rights. An intensification of actions aimed at adopting legal measures in this field happened in the 1960s. The concern for a proper range and level of regulation was expressed at the level of the Parliamentary Assembly and the Committee of Ministers. National experts formulated detailed resolutions to include the goals of international organizations such as CSCE and the United Nations concerning this matter. The fact that the framework convention was chosen as the means bears witness to a significant provision that the guarantee of rights were realized in the most flexible manner, including the designations and capacities of State parties. This article includes an analysis of three stages of work connected with ensuring linguistic rights for national minorities, with a special emphasis on the linguistic rights in the education system. On the one hand, actions which resulted in the acceptance of the Framework Convention for the Protection of National Minorities are shown. On the other hand, the goals and details of this Convention are described. The third section concerns the analysis of mechanisms for monitoring the realization of the rights included in the Convention. Due to limitations in the terms of reference for this work, the analysis of the convention guarantees, and their realization, was limited to linguistic rights in the education system. The practice of these actions was shown through examples in Poland and Lithuania. The right to education for national minorities (in a general sense) including knowledge about their culture, traditions, and their input into the development of the society of a given country is one of the rights clearly stated in the Framework Convention. By the same token are linguistic rights in an education system – the right to teach the language of a national minority or to teach in the language of a minority. As practice in Poland and Lithuania shows, the situation of education of national minorities is different, although some of the problems are common: an example for that would be access to proper coursebooks in the languages of national minorities, or properly trained teachers.

Правове регулювання державної мовної політики у сфері захисту прав національних меншин

The article deals with the issues of state administration of the legislative provision of language policy aimed at legal protection of national minorities. The regional section of the provision of language and cultural rights of national minorities is analyzed. The most obvious difference was found throughout an array of ethnic, linguistic, religious, religious, geopolitical, political and ideological orientations and priorities of various types of identity of citizens in specific regions. The factors determining the peculiarities of ethnopolitical development of Ukraine are determined. It is proved that the ethnic structure in the regions has a significant influence on the management of ethnic and national processes at the state level, and also plays a very important role in shaping the specificity of the structure of actors in the process of public administration of language policy in these territories. The factors that have a significant impact on linguistic policy in resolving the linguistic issue and ensuring the legal protection of national minorities are outlined. Analysis of the regulatory framework, which is the legal basis to ensure the language rights of national minorities in Ukraine, as well as documents of international law. The ways of providing informational language needs of national minorities in Ukraine through the formally legal and practical tendencies are revealed. The role of bodies of state power and local self-government on material and financial support of mass media is revealed. The primary tasks of state administration bodies in realization of language policy, effective legal provision of language needs of national minorities are determined.

How Social are New and Social Media for National Minorities? Perspectives from the FCNM

Understanding the transformation of digital communication gives important insights into how new media, including social media, affect the ability of persons belonging to national minorities to exercise their rights to freedom of expression and participation in society. Thus, the new media ecosystem calls for greater attention for minority-related issues. The Advisory Committee on the Framework Convention for the Protection of National Minorities (ACFC) has already observed that the media ecosystem is increasingly used for the expression of intolerance and hostility towards minorities, but that it also provides them with valuable expressive opportunities. This article starts with an analysis of how the advent and growing dominance of social media are causing farreaching changes in how we communicate in the new media ecosystem. The potential and drawbacks of new and social media for national minorities is the next focus. The article then analyses the ACFC’s monitoring work regarding new and social media. The article’s conclusions are supplemented by a set of recommendations that may guide the ACFC’s future monitoring work on relevant issues.

Language Rights of Minorities in the Areas of Education, the Administration of Justice and Public Administration: European Developments in 2017

This section overviews the 2017 situation of the language rights of European minorities in the fields of education, the administration of justice and public administration. The author presents the relevant legal developments in the activities of the major international organizations, i.e. the United Nations, the Organization for Security and Cooperation in Europe, the European Union, and the Council of Europe including the case law of the European Court of Human Rights, and the implementation of the European Charter for Regional and Minority Languages as well as the Framework Convention for the Protection of National Minorities. In the concluding remarks, tendencies and common patterns are emphasized.

Conformity of the Act on the Polish Card with International Law from the Perspective of the Constitutional Court of Belarus

With the Act on the Polish Card Poland followed the pattern of some European states (mostly Central and Eastern European ones) of enacting specific domestic legislation conferring special treatment and benefits to persons who are recognized as its kin-minorities. The most important analysis of this phenomenon from the perspective of international law was the 2001 Venice Commission’s report entitled “Report on the Protection of National Minorities by their Kin-State.” The Polish legislation was adopted in 2007, so for obvious reasons it was not considered by the Venice Commission. However, a rather unexpected andunusual examination of the Polish kin-state legislation from the perspective of international law came from Belarus. The Constitutional Court of the Republic of Belarus (CCRB) conducted a comprehensive examination of the Act on the Polish Card in 2011. The main aim of this article is to present and comment on the reasoning of the CCRB. Beginning with the broader context, this article starts with a presentation of the origins and a short description of the Act on the Polish Card, followed by a discussion of why the Polish Card and other kin-state legislation instruments are topics of concern in international law. The main part of the article is devoted to the presentation and assessment of the 2011 CCRB decision on the Act on the Polish Card. The author’s assessment confirms at least some of the concerns put forward by the CCRB, i.e., that both the Act on the Polish Card and the practice based on it contradict some norms and principles of international law, namely the principle of territorial sovereignty, the norms of consular law, and several bilateral treaties in force between these two states. Bearing in mind that despite those concerns more than a quarter-million Polish Cards (also sometimes called Pole’s Cards) have been issued so far by the Polish authorities, the article ends with a discussion of why such a prolonged nonconformity with international law is possible.

European standards for the protection of national minorities’ rights as a component of Ukraine’s Euro­Atlantic integration

European standards for the protection of national minorities’ rights as a component of Ukraine’s Euro­Atlantic integration

Ochrona praw mniejszości w II Rzeczypospolitej Polskiej w świetle postanowień tzw. małego traktatu wersalskiego z 1919 r.

The Versailles system of the protection of national minorities’ rights was based on international agreements which had been imposed by the victorious powers of Entanta onto the former central states (except Germany), and on to the states formed after World War I. Compliance with the provisions of the minority treaties was covered by political and judicial guarantees from the League of Nations. The first of the series of minority treaties was the treaty signed by Poland on June 28, 1919, simultaneously with the peace treaty with Germany. The so-called ‘small treaty of Versailles’ obliged the Polish state to introduce the principle of equality before the law of all citizens regardless of nationality, to ensure freedom of religious practice, and to grant minorities specific language rights in education and the judiciary. The Jewish population obtained the right to celebrate the Sabbath on Saturday, and to run state-funded schools in Yiddish as a language of instruction. Treaty obligations for all minorities had been given the status of fundamental rights by including them in the March Constitution of 1921. Because the Polish state pursued an ethnic policy unfavourable to minorities, numerous violations of the treaty by its organs were the subject of petitions addressed o the League of Nations Council. The practice-oriented petition procedure allowed representatives of minorities to submit complaints, although the treaty granted the right to intervene to protect minority rights only to member states of the Council. On the initiative of Germany, cases concerning the violation of the rights of the German minority by the Polish state were examined by the International Court of Justice in Hague, which usually issued rulings unfavourable for Poland. Other minorities living in Poland did not gain such support from the Council member states, hence their petitions were dealt with as intended by the Polish government and did not end up in court. The fact that Germany was abusing the treaty guarantees to create an image of Poland as a country persecuting minorities served as an excuse for the Polish state to declare its cessation of applying the treaty obligations. The Declaration on September 1934 was one of the reasons why the Versailles system of the protection of minority rights, which in practice was an instrument of political interference of European powers in the internal affairs of other states, collapsed.

Особливості формування та реалізації державної політики щодо захисту прав національних меншин (на прикладі України та Республіки Польща).

The article reveals the essence of the term «national minority». In particular, the main features of national minorities are highlighted, namely: a smaller population than the rest of the country; the presence of cultural, linguistic, religious or racial differences from the majority of society; the desire to preserve their language, culture and traditions; awareness of one's own uniqueness and identity, desire to save and protect it; the presence of identification with a nation organized in another country.The authors analyze the process of forming and implementing state policy to protect national minorities in Poland and Ukraine. Scientists use quantitative (number and demographic characteristics of national minorities, territorial character of their settlements, financial support of national minorities by the state, political activity of national minorities, etc.) and qualitative (peculiarities of functioning of institutions that protect the rights of national minorities, the level of conformity of national minority rights protection policy with international standards, features of mechanisms of international cooperation in the sphere of the legal protection of minorities, satisfaction of information needs of ethnic minorities and others) criterias.Based on the research, the authors confirm that the state policy of Poland and Ukraine for protection of national minorities has both common and distinctive features. The most different are the quantitative and demographic indicators of national minorities in Poland and Ukraine. In addition, the authors state that by some qualitative criterias (the level of compliance of state ethnopolitics with international standards and the provision of national minorities with sources of information), Poland is ahead of Ukraine and creates conditions that more effectively contribute to the protection of the rights of national minorities.

State policy of Ukraine and Poland for the protection of national minorities: comparative analysis

State policy of Ukraine and Poland for the protection of national minorities: comparative analysis

Borders vs. Numbers: Albanian National Minority in the South Serbia between Nation Building in Kosovo and EU Member State Building

Serbia and Kosovo are two countries that want to join the EU as the ultimate goal. However, in order for this process to start, Kosovo, still not recognized by five EU member states, should be recognized by many countries including Serbia and these two former enemies have to solve the problems seriously to become allies. While the independence of Kosovo remains unacceptable for Serbia, today one of the main problems facing the parties is the border issues. Despite the fact that Serbia insists there is no state border between Serbia and its former province, the EU-mediated talks on the normalisation of relations between Serbia and Kosovo which includes the option of a border correction namely, land swap is taking place behind closed doors. The land swap solution suggests that Kosovo take control of the Albanian-inhabited Presevo Valley of South Serbia while the Serb-inhabited four northern municipalities of Kosovo would be associated with Serbia. But this controversial step, depending on whom you ask, is a historical matter that can lead to a war or a great compromise. This paper aims to take a comprehensive look at the solution of the land swap between Kosovo and Serbia on the side of Albanian minority in the South Serbia, considering that the balances in this region are very dynamic and to examine the importance of the EU membership motivation for solving such disputes. The analysis in this study has been conducted based on (a) interviews with political decision-makers in the Presevo Valley involved in talks about swapping land and journalists from the region, (b) observations and field research of author (c) objectives and priorities identified in the Brussels Agreement in 2013, Stabilisation and Association Agreement and instruments concerned with minority rights and the recognition of local autonomy (e.g. Framework Convention for the Protection of National Minorities and European Charter of Local Self-Government) compared to comments from the latest country-specific monitoring works by the EU and Council of Europe on the framework of the EU-facilitated Dialogue for the normalisation of relations between two countries.

Die völkerrechtlichen Konsequenzen des Vertrages von St. Germain

When considering the contribution of the Paris Peace Conference of 1919 to the development of international law,reference is usually made to the League of Nations and the ILO, whose founding documents formed an integral partof the peace treaties between the Allied and Associated Powers and the former Central Powers. While the creation ofthe League and the ILO indeed ushered in a new era of institutionalized international cooperation and, hence, may beseen as the most spectacular outcome of the Peace Conference from the point of view of international law, the implicationsof the peace settlements for the evolving international legal order do not stop here. Taking the Treaty of St.Germain (the “Austrian Treaty”) as a case in point, it will be shown, for instance, that provisions entailing an explicitattribution of guilt for the war (which was directly linked to the imposition of reparation payments by Austria) maywell be seen as a first step towards the eventual general outlawry of wars of aggression in international law. Likewise,stipulations as to the general prohibition of the use of certain categories of weapons, provisions on the prosecution ofindividuals accused of war crimes before military tribunals of the Allied and Associated Powers, as well as treatyarrangements designed to ensure the protection of national minorities, contributed significantly to the progressivedevelopment of important areas of contemporary international law.

Aligning Interculturalism with International Human Rights Law: ‘Living Together’ without Assimilation

On the basis of the perceived failure of multiculturalism, a shift towards ‘interculturalism’ has been advocated by politicians in Western Europe and international organisations including UNESCO and the Council of Europe. While seemingly benign from a human rights perspective, critics of interculturalism warn that in practice this shift can be used to justify the adoption of assimilationist policies. Forced or unwanted assimilation violates the rights of persons belonging to minorities. Consequently, this article explores the compatibility of interculturalism with international human rights law. It argues that when adopted within a minority rights (multiculturalist) framework, such as the Framework Convention for the Protection of National Minorities, interculturalism is broadly compatible with human rights standards. However, when adopted outside this framework, for example, within the European Court on Human Rights’ jurisprudence, interculturalist concepts can easily be used to legitimize the violation of the rights of persons belonging to minorities.

What's in a Name? Causes and Consequences of Labelling Minorities as “National” or “Migrant”: Roma in Italy and Spain

This article analyses how Roma are represented in official policy narratives in Italy and Spain by comparing the four cycles of the Framework Convention for the Protection of National Minorities in the two countries. By tracing the representations that the Italian and Spanish governments hold (and make) about the Roma, I sketch out the different categories that EU‐ropean countries recur to as organizing principles to “other” underprivileged minorities. Based on the tailored‐approaches in which both Italy and Spain engage in framing Roma as either a “national” minority or not, I suggest that constructing or “producing” a minority in our imagined communities as characterized by national, cultural, social or migrant characteristics relies more on political expediency than on objective analytical categories.

Observing Minority Rights in the Administration of Justice and Public Administration: European Developments in 2016

This article overviews the 2016 developments concerning the status and rights of European minorities with respect to administrative and judicial proceedings, with special focus on language rights. The longest section of the article is devoted to the activities of the Council of Europe, including the case-law of the European Court of Human Rights and the implementation of the European Charter for Regional and Minority Languages, as well as the Framework Convention for the Protection of National Minorities. Furthermore, the relevant legal developments in the activities of the United Nations, the Organization for Security and Cooperation in Europe and the European Union are presented.

International Developments 2016: Economic, Social, and Cultural Life, Including Education and the Media, in the Context of European Minorities and from the Perspective of International Law

From the perspective of the rights of minorities in Europe, this section overviews international developments concerning economic and socio-cultural entitlements, including those related to education and the media. It is thematically structured around two clusters related to the minority rights: (a) cultural activities and facilities, including the media; and (b) economic and social life, including education, which are covered by the provisions of the European Charter for Regional and Minority Languages (ETS. No. 148). This review starts with an analysis of the 2016 developments at the UN level, and continues with an overview of advancements at the levels of the OSCE, the EU, and the Council of Europe. The adoption of the Thematic Commentary No. 4 “The Scope of Application of the Framework Convention for the Protection of National Minorities” by the Advisory Committee on the Framework Convention for the Protection of National Minorities (ACFC) is among the most important highlights.