HAGUE YEARBOOK OF INTERNATIONAL LAW

Transcription

1 HAGUE YEARBOOK OF INTERNATIONAL LAW ANNUAIRE DE LA HAYE DE DROIT INTERNATIONAL Edited by Nikos Lavranos, Ruth Kok et al VOLUME 26 leiden boston

2 Table of Contents Editorial vii Private International Law 1 Hague Conference on Private International Law Work in Micah R. Thorner and Rosa Huizinga International Criminal Law 2 The Growing Rift between Africa and the International Criminal Court: The Curious (Im)possibility of a Security Council deferral 34 Abel S. Knottnerus 3 Sexual Violence against Men in Armed Conflicts: Insights from International Criminal Tribunal for Former Yugoslavia and the War Crimes Chamber of the State Court of Bosnia and Herzegovina 57 Ioannis P. Tzivaras Public International Law 4 Towards an Internet Framework Convention: The State of Play 84 Joanna Kulesza 5 Sosa, Kiobel and Pirates Inc.: Defijining the Modern Parameters of the Archaic Alien Tort Statute 116 Jonathan L.H. Blaine 6 Responsibility for Crimes Committed by the Ottoman Empire against the Armenian Population: Are the Rules of State Succession to International Responsibility of Any Use? 141 Patrick Dumberry 7 Unilateral Legal Acts Revisited: Common Law v. Civil Law Approaches and Lessons from the International Law Commission s (Failed) attempt to Codify Unilateral Acts of States 168 Eva Kassoti

3 vi table of contents 8 Interpreting Reasons: The Interpretation of the 1962 Temple of Preah Vihear Judgment 201 Daniel Peat 9 The Development of International Law by the International Court of Justice 216 James Sloan and Christian J. Tams 10 The Applicability of International Law Standards to the Sanctions of the Security Council 239 Adil Sahban 11 Beyond Traditional Statehood Criteria: The Law and Contemporary Politics of State Creation 316 Ryal Wun 12 Article 27 of the ICCPR Revisited The Right to Culture as a Normative Source for Minority / Indigenous Participatory Claims in the Case Law of the Human Rights Committee 359 Athanasios Yupsanis International Investment Law and Arbitration 13 Financial Market Dispute Settlement: Making Sense out of Current Nonsense 412 Jefffrey Golden 14 The Margin of Appreciation in Investor-State Arbitration: The Prevalence and Desirability of Discretion and Deference 422 Jeanrique Fahner 15 More in 2013 than Ever Before: Inter-State and Investor-State Arbitrations at the Permanent Court of Arbitration 496 Yanying Li and Camille M. Ng About the Editorial Board 516 About the AAA 518 Note from the Secretary-General of the AAA Note du Secrétaire général de l AAA 519

4 12 Article 27 of the ICCPR Revisited The Right to Culture as a Normative Source for Minority / Indigenous Participatory Claims in the Case Law of the Human Rights Committee Athanasios Yupsanis* Abstract Article 27 of the International Covenant on Civil and Political Rights ( ICCPR ) constitutes the main universal legally binding norm for the safeguarding of minority and indigenous cultures. In this context, particularly significant is the expanded interpretation given both to its meaning in such aspects as the broad conception of its core concept, culture, the positive content of its accorded protection, the recognition of its collective dimension, and even of its potential linkage to the right of self-determination and scope (i.e. the inclusion of indigenous, non-citizens and migrant workers) by the Covenant s monitoring body, the Human Rights Committee. Central to the Committee s reading is the need for minorities and indigenous peoples to have an opportunity to effectively participate in decisions affecting their cultural rights, which extends to a state obligation to gain their free, prior and informed consent, when the proposed measures seriously undermine their cultures. However, the Committee has so far failed to convincingly clarify either the criteria that render a participatory process truly effective, or the circumstances under which a decision, measure, or project could have a sufficiently serious impact on their cultures, thus making their consent to it mandatory. 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 * LL.M, Ph.D in international law (Aristotle University of Thessaloniki); Adjunct Lecturer, Faculty of Law, Democritus University of Thrace, Komotini, Greece. Contact: thayup@yahoo.gr. nikos lavranos, ruth kok, et al. (eds.), hague yearbook of international law koninklijke brill nv. isbn pp

5 article 27 of the iccpr revisited 359 culture, to profess and practice their own religion, or to use their own language.1 1 Introduction Article 27 of the International Covenant on Civil and Political Rights ( IC- CPR ), is the only provision in the International Bill of Rights, which consists of the Universal Declaration of Human Rights ( UDHR ), the ICCPR, and the International Covenant on Economic, Social and Cultural Rights ( ICESCR ),2 to explicitly address the question of the cultural rights of minorities.3 In this context it has been valued its shortcomings notwithstanding by some eminent scholars as the most important guarantee of such rights on the universal level and the only one that constitutes applicable hard law,4 the Grundnorm for the protection of minorities.5 Such a central position, however, is not self-evident, as Scheinin notes,6 by the mere language of the norm, the vague phrasing of which generated several critiques against it.7 Indeed, it was the interpretation(s) adopted by the competent body for the monitoring of the implementation of the Covenant s provisions, the Human Rights Committee 1 Article 27 of the International Covenant on Civil and Political Rights, 6 International Legal Materials (1967) pp A. de Baets, The Impact of the Universal Declaration of Human Rights on the Study of History, 48 History and Theory (2009) p P. Hunt, Reflections on International Human Rights Law and Cultural Rights, in M. Wilson and P. Hunt (eds.), Culture, Rights and Cultural Rights - Perspectives from the South Pacific (Huia Publishers, Wellington, 2000) p R. Hofmann, Minority Rights: Individual or Group Rights? A Comparative View on European Legal Systems, 40 German Yearbook of International Law (1997) p R. Medda -Windischer, New Minorities, Old Instruments? A Common but Differentiated System of Minority Protection, 13 International Community Law Review (2011) p. 365 footnote M. Scheinin, The Right to Enjoy a Distinct Culture: Indigenous and Competing Uses of Land, in T. S. Orlin, A. Rosas and M. Scheinin (eds.), The Jurisprudence of Human Rights: A Comparative Interpretive Approach (Abo Akademi University, Institute for Human Rights, Turku, 2000) p C. Tomuschat, Status of Minorities under Article 27 of the U.N. Covenant on Civil and Political Rights, in S. Chandra (ed.), Minorities in National and International Laws (Deep & Deep Publications, New Delhi, 1985) p. 31.

6 athanasios yupsanis ( HRC ), in its General Comment No 238 on the Rights of Minorities9 ( General Comment No 23 ), and its relevant semi-juridical jurisdiction10 and concluding observations, that clarified several ambiguous points of its wording, and gave the norm a strong positive content which does not emanate from its literal reading. One of the most interesting aspects of this interpretation is the participatory element that is introduced in the provision s scope, i.e. recognising to members of minorities and indigenous peoples an opportunity to effectively participate in decisions affecting/relating to the enjoyment of their cultural rights, that even extends to a state duty to obtain their free, prior and informed consent when their culture is seriously at risk. Such a progressive approach certainly could not be directly deduced from the provision s phrasing since there is no such an explicit statement in it.11 This important step notwithstanding, there are still many aspects that the HRC must clarify regarding the content and extent of the notions of effective participation and free, prior and informed consent. 2 The Construction of Article 27 and the Critiques Against It In order to better understand the significant contribution of the HRC s interpretation, it would be useful to look firstly at Article s 27 literal phrasing, bear- 8 In the frame of its mandate to transmit such general comments as it may consider appropriate, to the States Parties (Article 40(4) of the ICCPR), the HRC adopts General Comments, which, although not legally binding, can be viewed as authoritative interpretative instruments that give rise to a normative consensus on the meaning and scope of the provisions of the Covenant. See C. Blake, Normative Instruments in International Human Rights Law: Locating the General Comment, Center for Human Rights and Global Justice Working Paper, Number 17, 2008, < docs/wp/blake.pdf >, visited on 4 December Human Rights Committee, General Comment No 23: The Rights of Minorities (Art. 27), UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, 8 April Article 1 of the Optional Protocol to the Covenant recognizes the competence of the Committee to receive and consider communications from individuals claiming violations of any rights set forth in the Covenant. See P. R. Ghandi, The Human Rights Committee and the Right of Individual Communication, 57 British Yearbook of International Law (1986) p See L.-A. Sicilianos, The Protection of Minorities in Europe: Collective Aspects of Individual Rights, in A. Bredimas and L.-A. Sicilianos (eds.), The Protection of Minorities in Europe: The Framework Convention of the Council of Europe for the Protection of National Minorities (Sakkoulas, Athens, 1997) p. 108 (in Greek).

7 article 27 of the iccpr revisited 361 ing in mind that since the provision was intended to have a global application and as there are a great variety of minorities all over the world, sometimes even in the same country, it was natural that its framing would be general and to a degree vague.12 This caused, as noted, many criticisms. For example, one of the first rather negative remarks made by a prominent scholar the year that the Covenant came into effect (1976) was that Article 27 is declaratory in nature and reflects a minimum of rights.13 Several authors shared more or less the same opinion. Thus, Humphrey observed that Article 27 is a relative weak article,14 Kingsbury commented that it is a limited provision,15 Shaw called it modest and rather negative provision,16 Buerghental found it rather general,17 Kymlicka said that it is widely viewed as insufficient,18 etc. The reasons for this at best cautious stance are many. To begin with, Article 27 does not define the meaning of minorities, though the term is qualified by the adjectives ethnic, religious and linguistic. Hence, the problem still stands of how the rights ascribed can be claimed and exercised in the absence of defined criteria which identify the beneficiaries of the rights.19 Next, Article 27 applies only to those states in which ethnic, religious or linguistic minorities exist, thereby encouraging states to deny that minorities exist in their jurisdictions.20 At the same time this phrase could be read as implying that only long-established minorities could 12 C. Tomuschat, Protection of Minorities under Article 27 of the U.N. Covenant on Civil and Political Rights, in R. Bernhardt, W. K. Geck, G. Jaenicke and H. Steinberger (eds.), Völkerrecht als Rechtsordnung Internationale Gerichtsbarkeit Menschenrechte Festschrift für Hermann Mosler (Springer-Verlag, Berlin / Heidelberg / New York, 1983) p Y. Dinstein, Collective Human Rights of Peoples and Minorities, 25 International and Comparative Law Quarterly (1976) p J. Humphrey, The United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, 62 American Journal of International Law (1968) p B. Kingsbury, Claims by Non-State Groups in International Law, 25 Cornell International Law Journal (1992) p M. N. Shaw, Peoples, Territorialism and Boundaries, 3 European Journal of International Law (1997) p T. Buergenthal, The Normative and Institutional Evolution of International Human Rights, 19 Human Rights Quarterly (1997) p W. Kymlicka, A European Experiment in Protecting Cultural Rights, 12 Human Rights Dialogue Series 2 (2005) p J. Wright, Minority Groups, Autonomy, and Self-Determination, 19 Oxford Journal of Legal Studies (1999) p K. Antonopoulos, Issues of Minority Rights Protection under the Light of Former Yugoslavia s Dissolution, 21 Hellenic Review of European Law (2001) p. 79 (in Greek).

8 athanasios yupsanis claim official recognition by the states, thus excluding from minority status other groups, such as immigrants.21 This indeed was the intention of the Chilean proposal introducing the specific opening words.22 Thirdly, Article 27 does not state that persons belonging to minorities shall have certain rights but that they shall not be denied them,23 appearing thus to impose only negative obligations on states not to interfere with the exercise of minority cultural rights.24 Hence, the negative formulation of the norm (together with its drafting history) seemed to imply that Article 27 at least originally emphasised the freedom of individuals to enjoy their own culture, rather than the adoption of affirmative action by the state to sustain the effective enjoyment of this right.25 Finally, the wording persons belonging to suggests that the provision only protects the rights of individuals who are members of a minority group and not the collective rights of the group itself,26 although the phrase in community with the other members of their group introduces a certain collective dimension into the protection accorded.27 In other words, Article 27 does not accord any special status to minorities as collectivities,28 let alone recognise them as having an international legal personality.29 This is perceived as a 21 N. Lerner, Group Rights and Discrimination in International Law (Martinus Nijhoff Publishers, Dordrecht / Boston / London, 1991) p N. Lerner, The Evolution of Minority Rights in International Law, in C. Brölmann, R. Lefeber and M. Zieck (eds.), Peoples and Minorities in International Law (Martinus Nijhoff Publishers, Dordrecht / Boston / London, 1993) p F. Capotorti, The Protection of Minorities under Multilateral Agreements on Human Rights, 2 Italian Yearbook of International Law (1976) p P. Macklem, The Law and Politics of International Cultural Rights: E. Stamatopoulou, Cultural Rights in International Law; F. Francioni and M. Scheinin (eds.) Cultural Human Rights, 16 International Journal on Minority and Group Rights (2009) p See P. Thornberry, Is There a Phoenix in the Ashes? International Law and Minority Rights, 15 Texas International Law Journal (1980) p There is no doubt that the subjects protected by Article 27 are individuals belonging to minorities and not minority groups as collective entities. F. Capotorti, Minorities, in R. Wolfrum (ed.), United Nations: Law, Policies and Practice VOL II (Martinus Nijhoff Publishers, Dordrecht, 1995) p See R. Wolfrum, The Protection of Indigenous Peoples in International Law, 59 Heidelberg Journal of International Law (ZaöRV) (1999) p A. Anghie, Human Rights and Cultural Identity: New Hope for Ethnic Peace?, 33 Harvard International Law Journal (1992) p L. B. Sohn, The Rights of Minorities, in L. Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights (Columbia University Press, New York, 1981) p. 274.

9 article 27 of the iccpr revisited 363 severe limitation of the provision s scope from the perspective of those who advocate the necessity of collective minority guarantees. In this regard, there are still voices in international legal scholarship who argue that it is questionable as to whether Article 27, while purporting to provide minorities with special protection, adds anything further to the norms of non-discrimination which are part of the general human rights regime. 30 Furthermore, authors even doubt the legal nature of its normative content, arguing that its careful drafting and wording make the provision seem more a recommendation than a legally binding norm.31 However, such positions overlook, or have been overtaken, by the fact that in practice, the HRC has given an expanded interpretation through its General Comment No 23 and its relevant semi-juridical jurisdiction and concluding observations on the right to enjoy culture, whilst elucidating on several aspects of the ambiguous issues. 3 Clarifying the Grey Areas of Article 27: HRC s General Comment No 23 on the Rights of Minorities The adoption of General Comment No 23 was a landmark step forwards for the protection of minority cultures, as it clarifies most of Article 27 s controversial issues in a positive way for the minorities interests. Beginning, then, with the view that Article 27 does not accord any special protection to the members of the minorities beyond the already existing norms on non-discrimination, which are part of the general human rights regime, the Committee made it clear that Article 27 establishes and recognizes a right which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant. 32 Following this line the HRC commented that the Covenant also distinguishes the rights protected under Article 27 from the guarantees under Articles 2.1 and 26 (non-discrimination and equality principles).33 In particular, 30 A. Anghie, Nationalism, Development and the Postcolonial State: The Legacies of the League of Nations, 41 Texas International Law Journal (2006) pp F. Albanese, Ethnic and Linguistic Minorities in Europe, 11 Yearbook of European Law (1991) p UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 1. See C. Holder, Culture as an Activity and Human Right: An Important Advance for Indigenous Peoples and International Law, 33 Alternatives (2008) p UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 4.

10 athanasios yupsanis as regards the right of individuals belonging to a linguistic minority to use their language among themselves, in private or in public, the HRC emphasised that this is distinct from other language rights protected under the Covenant, such as the general right to freedom of expression protected under Article 19, or the right that Article 14(3)(f) of the Covenant confers on accused persons to interpretation, where they cannot understand or speak the language used in the courts.34 The Committee went on to conclude that Article 27 relates to rights whose protection imposes specific obligations on states parties. 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. 35 Accordingly, the Committee observed that: these rights must be protected as such and should not be confused with other personal rights conferred on one and all under the Covenant. States parties, therefore, have an obligation to ensure that the exercise of these rights is fully protected and they should indicate in their reports the measures they have adopted to this end.36 This statement implies, Holder notes, not only that cultural rights do not depend on other rights for their justification, but that they may themselves ground rights to conditions, objects or goods that are instrumentally necessary for a people s culture. 37 Next, regarding the ambiguity generated by the phrase [i]n those States in which minorities exist, the HRC made it clear that [t]he existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria. 38 This means that [i]f the existence of a minority group 34 Ibid., para. 5.3; See K. Henrard, The Interrelationship between Individual Human Rights, Minority Rights and the Right to Self-Determination and Its Importance for the Adequate Protection of Linguistic Minorities, 1 The Global Review of Etnhopolitics (2001) p UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 9; See A. Xanthaki, Multiculturalism and International Law: Discussing Universal Standards, 32 Human Rights Quarterly (2010) p UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para Holder, supra note 32, p UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 5.2; See G. Gilbert, Religious Minorities and Their Rights: A Problem of Approach, 5 International Journal on Minority and Group Rights (1997) p. 102.

11 article 27 of the iccpr revisited 365 within a State is objectively demonstrated non-recognition of the minority does not dispense the State from the duty to comply with the principles in Article This position, is particularly important for the minorities and their members since, as Kugelmann notes, their rights cannot be accepted if a state denies, as is the case of Turkey and France for example, the existence of a minority itself. 40 Further, regarding the meanings that the use of the term exist may imply, the HRC rejected the position that the wording refers to long and established minorities stating that it is not relevant to determine the degree of permanence that the term exist connotes. 41 Indeed, the HRC pointed out that: [a]rticle 27 confers rights on persons belonging to minorities which exist in a State party [ ] Those rights simply are that individuals belonging to those minorities should not be denied the right, in community with members of their group, to enjoy their own culture, to practise their religion and speak their language. Just as they need not be nationals or citizens, they need not be permanent residents. Thus, migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights.42 The Committee thus attempted a broad interpretation of the personal scope of Article 27 which goes far beyond the classic requirement of citizenship. According to some approaches, this view is wholly compatible with Article 27, since the provision does not refer to citizens, like Article 25 [right to participate in public affairs], but to persons, like Article 26 [equality before the law] and Article 14 [equality before the courts]. Thus, this indicates that Article 27 provides a human rather than a citizen s right.43 Consequently, the under- 39 F. Ermacora, The Protection of Minorities before the UN, 182 Recueil des Cours (1983) p D. Kugelmann, The Protection of Minorities and Indigenous Peoples Respecting Cultural Diversity, 11 Max Planck Yearbook of United Nations Law (2007) p UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 5.2; See E. Stamatopoulou, Monitoring Cultural Human Rights: The Claims of Culture on Human Rights and the Response of Cultural Rights, 34 Human Rights Quarterly (2012) p UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 5.2; See A. Bredimas, Immigrants Members of Minorities: Do They Have the Same Rights under International Law?, 28 Revue Hellénique des Droits de l Homme (2005) p (in Greek). 43 R. Wolfrum, The Emergence of New Minorities as a Result of Migration, in C. Brölmann, R. Lefeber and M. Zieck (eds.), Peoples and Minorities in International Law (Martinus Nijhoff Publishers, Dordrecht / Boston / London, 1993) p. 161.

12 athanasios yupsanis lying logic of all human rights to respect the dignity of all human beings strongly implies that also non-citizens who are substantially inside the polity should enjoy minority rights. 44 It should be noted, however, that its broad perception of the scope of Article 27 and, consequently, of the notion of minority, the Committee took a rather narrow position45 regarding the issue of inclusion of the so-called double minorities (i.e. those groups who belong to the majority ethnic/linguistic/religious population of a nation state but constitute numerical minorities in certain region(s) of it) under the norm.46 Thus, it has opined regarding the English-speaking population of Canada s predominantly francophone province of Quebec, that the minorities referred to in Article 27 are minorities within such a State, and not minorities within any province. A group may constitute a majority in a province but still be a minority in a State and thus be entitled to the benefits of Article 27. English-speaking citizens of Canada cannot be considered a linguistic minority. 47 In any case it is an undoubtedly positive development that although the provision does not contain a definition of minority, an omission that had caused several criticisms, and despite the HRC not adopting an official one in its General Comment No. 23, it embraced a fairly broad working definition in practice.48 Indeed, as Kymlicka notes, Article 27 applies to all ethno-cultural minorities, on all continents, no matter how large or small, recent or historic, territorially concentrated or disperse, and thus can be seen as a truly universal cultural right. 49 Next, regarding the issue of affirmative action, Article 27, its negative formulation notwithstanding, has been interpreted as obliging states not only 44 J. Packer, Problems in Defining Minorities, in F. Fottrell and B. Bowring (eds.), Minority and Group Rights in the New Millennium (Martinus Nijhoff Publishers, The Hague, 1999) pp See Economic and Social Council, Examining Possible Solutions to Problems Involving Minorities, Including the Promotion of Mutual Understanding Between and Among Minorities and Governments Note by the Secretariat, UN Doc. E / CN.4 / Sub.2 / A.C.5 / 2006 / 4, 15 June 2006, p N. S. Rodley, Conceptual Problems in the Protection of Minorities: International Legal Developments, 17 Human Rights Quarterly (1995) p Human Rights Committee, Communications Nos. 359/1989 and 385/1989, John Ballantyne and Elizabeth Davidson, and Gordon McIntyre v. Canada, UN Doc. CCPR / C / 47 / D / 359 / 1989 and 385 / 1989 / Rev.1, 5 May 1993, para See R. Cholewinski, Migrants as Minorities: Integration and Inclusion in the Enlarged European Union, 43 Journal of Common Market Studies (2005) pp W. Kymlicka, National Cultural Autonomy and International Minority Rights Norms, 6 Ethnopolitics (2007) p. 382.

13 article 27 of the iccpr revisited 367 to respect the rights of minority members to enjoy their culture, but to create the favourable conditions required to make this possible.50 As the HRC stated: [a]lthough Article 27 is expressed in negative terms, that article, nevertheless, does recognize the existence of a right and requires that it shall not be denied. Consequently, a State party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party.51 In this connection, it has to be observed that such positive measures must respect the provisions of Articles 2(1) and 26 of the Covenant as regards treatment both as between different minorities and as between the persons belonging to them and the remaining part of the population. However, as long as those measures are aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under Article 27, they may constitute a legitimate differentiation under the Covenant, provided that they are based on reasonable and objective criteria.52 Finally, as regards as the nature of the rights provided by that norm, the HRC has taken the view that [a]lthough the rights protected under Article 27 are individual rights, they depend in turn on the ability of the minority group to 50 A. Eide, Good Governance, Human Rights, and the Rights of Minorities and Indigenous Peoples, in H.-O. Sano and G. Alfredsson with the collaboration of R. Clapp (eds.), Human Rights and Good Governance: Building Bridges (Martinus Nijhoff Publishers, The Hague / London / New York, 2002) p UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 6.1; See R. Brett, The International Covenant on Civil and Political Rights and Minorities, in J. Cator and J. Niessen (eds.), The Use of International Conventions to Protect the Rights of Migrants and Ethnic Minorities (Churches Commission for Migrants in Europe, Strasbourg, 1994) p UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 6.2; See K. Henrard, The Protection of Minorities Through the Equality Provisions in the UN Human Rights Treaties: The UN Treaty Bodies, 14 International Journal on Minority and Group Rights (2007) p. 157.

14 athanasios yupsanis maintain its culture, language or religion. 53 Thus, the Committee is clearly speaking of the lifestyle of minorities as a whole, not only of their individual members.54 Such an approach is in conformity with the view of several authors arguing that cultural rights have an inherent collective dimension and imply group rights because groups are best place to secure the cultures that individuals need. 55 Furthermore, when culture is seen as an activity rather than a good which is the view of the HRC, as will be explained further below then it is something in which persons have an interest in collectively, and not only individually, since many of the cultural activities in which people engage are communal efforts to shape the physical and social word that defines them, and connect them to one another.56 Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with the other members of the group. 57 This reference to community together with the possibility of collectively submitting a communication58 clearly adds a collective dimension to the right to culture. Indeed, the HRC has repeatedly affirmed in its jurisprudence that the right to enjoy culture can be meaningfully exercised only in community, i.e. as a group UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 6.2 (emphasis added); See F. Lenzerini, Intangible Cultural Heritage: The Living Culture of Peoples, 22 European Journal of International Law (2011) p W. van Genugten, Protection of Indigenous Peoples on the African Continent: Concepts, Position Seeking, and the Interaction of Legal Systems, 104 American Journal of International Law (2010) p Holder, supra note 32, p Ibid, pp UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 6.2 (emphasis added); See G. Gilbert, The Cultural and Political Autonomy of Minorities, 23 L Observateur des Nations Unies (2007) p As the Committee observed for the first time in the Lubicon case [t]here 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. Human Rights Committee, Communication No. 167 / 1984, Chief Bernard Ominayak and the Lubicon Lake Band v. Canada, UN Doc. CCPR / C / 38 / D / 167 / 1984, 10 May 1990, para. 32.1; See S. E. Perrakis, The Rights of Peoples. Arguments for Legal Polyphony and Delimitations, in S. E. Perrakis (ed.), Les Droits des Peoples et des Minorités : Une Problématique en Mutation (Sakkoulas, Athens - Komotini, 1993) pp (in Greek). 59 See A. F. Vrdoljak, Genocide and Restitution: Ensuring Each Group s Contribution to Humanity, 22 European Journal of International Law (2011) p. 32.

15 article 27 of the iccpr revisited 369 In sum, without overlooking the position that despite its liberal interpretation Article 27 is still considered a too weak,60 timid and reluctant recognition 61 of the cultural rights of minorities, one cannot easily underestimate the progressive elements of the HRC s approach that make Article 27 a valuable pillar for the protection of minority cultures. Particularly important in this context is the Committee s perception of the concept of culture. 4 Basic Elements of the HRC s Approach to the Notion of Culture in its General Comment No 23 and its Relative Semi-Juridical Jurisdiction One of the central aspects of the HRC s approach to the interpretation of Article 27 is the elucidation of the normative content of the concept of culture, which stands at the heart of the provision s ambit. Beginning with the Kitok v. Sweden case, the HRC opined that [t]he 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 Following a similar path, the Committee ruled shortly after, in the Lubicon case, 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. 63 The Committee further clarified its position, especially as regards the specific situation of indigenous peoples in its General Comment No 23, adopting the view that: one or other aspect of the rights of individuals protected under that article for example, to enjoy a particular culture may consist in a way 60 R. Stavenhagen, Cultural Rights: A Social Science Perspective, in A. Eide, C. Krause and A. Rosas (eds.), Economic, Social and Cultural Rights: A Textbook (Martinus Nijhoff Publishers, The Hague, 2001, 2nd edn) p N. Lerner, Group Rights and Legal Pluralism, 25 Emory International Law Review (2011) p Human Rights Committee, Communication No. 197 / 1985, Ivan Kitok v. Sweden, UN Doc. CCPR / C / 33 / D / 197 / 1985, 27 July 1988, para. 3.2 (emphasis added); See P. Macklem, Minority Rights in International Law, 6 International Journal of Constitutional Law (2008) p UN Doc. CCPR / C / 38 / D / 167 / 1984, supra note 58, para (emphasis added); See S. J. Anaya, Indigenous Rights Norms in Contemporary International Law, 8 Arizona Journal of International and Comparative Law (1991) p. 19.

16 athanasios yupsanis of life which is closely associated with territory and use of its resources. This may particularly be true of members of indigenous communities constituting a minority.64 In the same context the Committee also noted that: [w]ith regard to the exercise of the cultural rights protected under Article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life added associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law.65 Thus, a first important step in the Committee s conceptual approach was the inclusion of the traditional subsistence/economic activities, such as Sami reindeer herding (e.g., Lansman cases), Maori fisheries (e.g., Mahuika et al. v. New Zealand case), Aymara grazing and raising llamas and alpacas (e.g., Poma Poma v. Peru case) etc., which are crucial to the continuous survival of the indigenous peoples culture, in the scope of the provision.66 In this way the Committee distanced itself from the traditional conception of culture as a type of good, an object valuable for its potential to be accessed, consumed, experienced or used,67 and adopted an alternative view of culture as a way of life consisting inter alia in a set of activities that individuals and peoples must be permitted to pursue.68 In the first approach, cultural rights appear less 64 UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 3.2 (emphasis added); See E. Stamatopoulou, Taking Cultural Rights Seriously: The Vision of the UN Declaration on the Rights of Indigenous Peoples, in A. Xanthaki and S. Allen (eds.), Reflections of the UN Declaration on the Rights of Indigenous Peoples (Hart Publishing, Oxford, 2011) p UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para.7 (emphasis added); See S. Wiessner, The Cultural Rights of Indigenous Peoples: Achievements and Continuing Challenges, 22 European Journal of International Law (2011) p See M. Scheinin, Justiciability and the Indivisibility of Human Rights, in J. Squires, M. Langford and B. Thiele (eds.), The Road to Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (University of New South Wales Press, 2005) p See Holder, supra note 32, p Ibid, p. 15; As Alfredsson also notes, [c]ulture in Article 27 has been given very broad contents encompassing not only a more traditional and narrow meaning but also traditional economies and the material base necessary for maintaining and developing indigenous ways of life as a prerequisite for cultural survival. G. Alfredsson, Minimum

17 article 27 of the iccpr revisited 371 fundamental to human dignity than civil, political and economic rights,69 thus setting a very high threshold for the impact that a state / administrative decision must have on a group s culture before it constitutes a human rights violation.70 In the second approach, culture is protected directly as a basic component of human dignity,71 as a basic right that in itself and not merely instrumentally justify constraints on state behavior,72 establishing not only negative duties to refrain from interfering with people when they are pursuing an interest, but also positive duties to provide people with what they need to ensure that pursuit is successful. 73 As Holder observes, the activity conception of culture offers a better understanding of what cultural rights protect.74 Cultural rights are rights to do cultural sorts of things: express and develop language, a worldview, a history, an identity, as peoples and individuals. 75 Under this prism what cultural protects is the ability of persons and peoples to produce cultures, and to produce them in a way that allows them to describe those cultures as their own. 76 In this understanding, cultural rights are essential to human dignity not because they secure individuals in their ability to obtain goods or achieve a specific state of affairs, but because culture is what people do when they are living their lives within a people. 77 In order to be able to do so, however, they must have effective means to influence the decisions which impact their way of life. Acknowledging this fact, the Committee noted in the seventh paragraph of its General Comment No 23, regarding the cultural rights protected under Article 27, that: Requirements for a New Nordic Sami Convention, 68 Nordic Journal of International Law (1999) p Holder, supra note 32, p Ibid., p Ibid., p On the distinction between basic and derivative or non fundamental rights see C. Holder, Self-Determination as a Basic Human Right: The Draft UN Declaration on the Rights of Indigenous Peoples, in A. Eisenberg and J. Spinner-Halev (eds.), Minorities within Minorities: Equality, Rights and Diversity, (Cambridge University Press, 2004), p Holder, supra note 32, pp Ibid., p Ibid., p Ibid., p Ibid.

18 athanasios yupsanis [t]he enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.78 So, the Committee introduced into the normative field of the provision, without however clarifying its thesis in detail, a participatory element, i.e. a state duty to take measures to ensure the effective participation of minority members in decisions that may affect them, which certainly can not be deduced prima facie from the literal reading of the norm.79 Even though the Committee did not make clear, neither in its General Comment No 23 nor in its subsequent semi-juridical jurisprudence, what the precise meaning of participation and indeed effective might consist of, its interpretation is still a positive step forward. However, it eeds to be further elaborated, since a right to culture without security of means to realize and instantiate that culture is an empty protection. 80 Finally, one of the remarkable aspects of the Committee s approach, which echoes the current findings of social scientists arguing that culture is not a static but rather a living process, historical, dynamic and evolving, with a past, a present and a future,81 is the view that [t]he right to enjoy one s culture cannot be determined in abstracto but has to be placed in context [...] Article 27 does not only protect traditional means of livelihood of minorities, but allows also for adaptation of those means to the modern way of life and ensuing technology. 82 Thus, the fact that the Finnish Sami, for example, have adapted their methods of reindeer herding over the years and practice it with the help of modern technology does not prevent them from invoking 78 UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 7 (emphasis added); See M. Scheinin and M. Langford, Evolution or Revolution? Extrapolating from the Experience of the Human Rights Committee, 27 Nordisk Tidsskrift for Menneskerettigheter (2009) p See A. Verstichel, Recent Developments in the UN Human Rights Committee s Approach to Minorities, with a Focus on Effective Participation, 12 International Journal on Minority and Group Rights (2005) p Holder, supra note 32, p See Committee on Economic, Social and Cultural Rights, General Comment No. 21: Right of Everyone to Take Part in Cultural Life (Art. 15, para. 1 (a)) of the International Covenant on Economic, Social and Cultural Rights, UN Doc. E / C.12 / GC / 21, 21 December 2009, p. 3, para Human Rights Committee, Communication No. 547 / 1993, Mahuika et al v. New Zealand, UN Doc. CCPR / C / 70 / D / 547 / 1993, 27 October 2000, para. 9.4.

19 article 27 of the iccpr revisited 373 Article 27 of the Covenant. 83 Under this understanding the Committee ruled in the case of Sara et al v. Finland that: [w]hile Finnish Sami have not been able to maintain all traditional methods of reindeer herding, their practice still is a distinct Sami form of reindeer herding, carried out in community with other members of the group and under circumstances prescribed by the natural habitat. Snow scooters have not destroyed this form of nomadic reindeer herding.84 The Committee, then, sees the cultural protection offered by Article 27 not as static but as realistically adapted to social evolution, to spatial-temporal circumstances and to the advancements of technology. Under this broad prism the use, for example, of helicopters for reindeer herding or the use of modernday fishing technology by indigenous peoples would not preclude them from their cultural rights provided by Article 27 of the ICCPR, but they still have to prove that their activities are part of their traditional livelihoods, although not in a frozen rights manner, as such activities could have evolved over the centuries.85 5 From Article 1 ICCPR to Article 27 and Vice Versa 5.1 Indigenous Peoples and Minorities The HRC evolved its jurisprudence on Article 27 mainly via a series of decisions on communications submitted by authors of indigenous ethnic background alleging violation either exclusively (e.g., Lubicon case), or inter alia (e.g., Mahuika et al v. New Zealand, Poma Poma v. Peru cases, etc.) of Article 1 of ICCPR on the right of peoples to self-determination. The HRC decided that the facts as presented in the relative cases raised issues that could fall 83 Human Rights Committee, Communication No. 511 / 1992, Ilmari Lansman et al v. Finland, UN Doc. CCPR / C / 52 / D / 511 / 1992, 8 November 1994, para. 9.3; See J. Firestone and J. Lilley, Aboriginal Subsistence Whaling and the Right to Practice and Revitalize Cultural Traditions and Customs, 8 Journal of International Wildlife Law and Policy (2005) pp Human Rights Committee, Communication No. 431/1990, Sara et al v. Finland, UN Doc. CCPR / C / 50 / D / 431 / 1990, 23 March 1994, para See J. Gilbert, Historical Indigenous Peoples Land Claims: A Comparative and International Approach to the Common Law Doctrine on Indigenous Title, 56 International and Comparative Law Quarterly (2007) pp

20 athanasios yupsanis under the ambit of Article 27 and consequently treated indigenous peoples (e.g., the Sami of the Nordic Countries, the Lubicon Band of Canada, the Aymara of Peru, etc.) as minorities, despite the fact that during the drafting of Article 27 a number of state delegates had taken the view that indigenous peoples, such as the Indians of North and Latin America or the Aborigines of Australia, were not minorities.86 This HRC policy met initially with the opposition of several indigenous peoples, who since the beginning of their movement vehemently objected to any attempt to designate them as minorities, strongly holding that they were definitely peoples entitled to the right of self-determination.87 For example, in the first relevant communication before the HRC, that of AD v. Canada, the author, allegedly acting on behalf of the Mikmaq people, claimed not to represent a minority within the meaning of Article 27, but a people within the meaning of Article 1 of the Covenant, categorically rejecting the applicability of Article 27 and reaffirming that the communication is concerned essentially with the violation of Article 1 of the Covenant ( Article 1 is our goal, our vision ).88 More recently, the Sami of Norway have resisted their designation as a national minority on the grounds that as an indigenous people they have legal and political rights exceeding those accorded by minority provisions. In keeping with their wish the Norwegian Government did not make any reference to them in its report to the Advisory Committee of the Framework Convention for the Protection of National Minorities (FCNM).89 There is, however, a growing consensus that although the two concepts do not coincide they certainly overlap.90 As the former UN Special Rapporteur Mrs. Erica Daes has pointed out, no definition or list of characteristics can eliminate overlaps between the concept of minority and indigenous peoples. Cases will continue to arise that defy any simple, clear-cut attempt at 86 See M. Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (N. P. Engel, Kehl / Strasbourg / Arlington, 1993) pp See Human Rights Committee, Communication No. 205 / 1986, Marshall v. Canada, UN Doc. CCPR / C / 43 / D / 205 / 1986, 4 November 1991, para See Human Rights Committee, Communication No. R.19 / 78, AD v. Canada, UN Doc. CCPR / C / 22 / D / R.19 / 78, 26 July 1984, Annex, paras. 3, See Report submitted by Norway pursuant to Article 25, paragraph 1 of the Framework Convention for the Protection of National Minorities, ACFC / SR(2001)001, 2 March 2001, para G. Pentassuglia, Reforming the UN Human Rights Machinery: What Does the Future Hold for the Protection of Minorities and Indigenous Peoples?, 14 International Journal on Minority and Group Rights (2007) p. 130.

21 article 27 of the iccpr revisited 375 classification. 91 Indeed, a comparative reading of the two most cited definitions of the notion of minority and indigenous peoples, given by the former UN Special Rapporteurs Francesco Capotorti92 and Martinez Cobo93 respectively, show that a number of connections and commonalities exist between these two group categories; namely, their numerical inferiority to the society at large,94 their non dominant position in the countries they live in, their cultural distinctiveness from the majority or dominant groups, and their wish to retain and promote their identity.95 Besides these similarities, however, there are two factors which distinguish indigenous peoples from minorities: a typical one, consisting in indigenous prior settlement in a specific territory,96 an element that, as Daes notes, has never been associated with any of the definitions given for the notion of minority,97 and a more substantial one, which is the unique collective spiritual relation of indigenous peoples to their ancestral lands, the safeguarding of which is an absolute precondition for their physical and cultural survival.98 This special attachment of indigenous peoples to their traditional lands and territories has a direct effect on the nature of the protection regimes they 91 Working Paper on the Relationship and Distinction Between the Rights of Persons Belonging to Minorities and Those of Indigenous Peoples, Paper by Erica - Irene A. Daes, UN Doc. E / CN.4 / Sub.2 / 2000 / 10, 19 July 2000, para See F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E / CN.4 / Sub.2 / 384 / Rev.1, UN Publication Sales No. E.78. XIV.1, New York, 1979, p. 96, para See J. M. Cobo, Study of the Problem of Discrimination Against Indigenous Populations, Volume V, Conclusions, Proposals and Recommendations, UN Doc. E / CN.4 / Sub.2 / 1986 / 7 Add.4, UN Publication Sales No. E.86.XIV.3, New York, 1987, p. 29, para As Hannikainen notices [n]early all indigenous peoples form minorities and are entitled to minority protection. L. Hannikainen, The Status of Minorities, Indigenous Peoples and Immigrant and Refugee Groups in Four Nordic Countries, 65 Nordic Journal of International Law (1996) p See A. Yupsanis, The Meaning of Culture in Article 15 (1) (a) of the ICESCR - Positive Aspects of CESCR s General Comment No. 21 for the Safeguarding of Minority Cultures, 55 German Yearbook of International Law (2012) pp Working Paper on the Relationship and Distinction Between the Rights of Persons Belonging to Minorities and Those of Indigenous Peoples, Paper by Asbjørn Eide, UN Doc. E / CN.4 / Sub.2 / 2000 / 10, 19 July 2000, para Working Paper by the Chairperson - Rapporteur, Mrs Erica - Irene A. Daes on the Concept of Indigenous Peoples, UN Doc. E / CN.4 / Sub.2 / AC.4 / 1996 / 2, 10 June 1996, para E. Stamatopoulou, Cultural Rights in International Law - Article 27 of the Universal Declaration of Human Rights and Beyond (Martinus Nijhoff Publishers, Leiden / Boston, 2007) pp