Law and Diversity. Multilevel Protection of Minorities. Jens Woelk. Master Peace Building (SSI) Seminar Minority Rights

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1 Law and Diversity Multilevel Protection of Minorities Jens Woelk Master Peace Building (SSI) Seminar Minority Rights

2 Minority Rights 2

3 Minority-Protection: Objectives (respect of) human dignity prevention of conflicts preservation of group-identity and of diversity inter-cultural society conflict/controversies are natural in pluralistic and democratic societies inclusive procedures for dialogue and decision-making cultural diversity as mutual enrichment Woelk Minority Rights 3

4 Minority : Wanted - a Definition No universal valid definition of national / ethnic minority Distinction: international or domestic law Criteria: objective (distinguishing features) subjective (awareness; acknowledgement and social relevance) New Minorities (still excluded) Relation with Nation-State: Building... Majority-population Exclusion... Minority-group State - legal fiction Nations - historicopolitical fictions that constitute States Woelk Minority Rights 4

5 Self-determination: preservation of the group/identity Minority Rights Autonomy substantial equality Collective Rights (bearer: group as such ) - legitimacy? Individual Rights (bearer: minority member) - problem: group dimension and exercise Special Rights Principle of Non-Discrimination no negative - legal - consequences for minority members Equal Rights (and Duties) formal equality relative concept: determination by comparison Woelk Minority Rights 5

6 Historical evolution: 5 seasons Westphalia Origins of the modern concept of minority Treaty of Vienna territorial changes and treaty-regime WW I WW II Wilson doctrine; League of Nations Cold War basis: individual HRs 1989-today new international order new conflicts minority rights Woelk Minority Rights 6

7 Levels of Protection Pluralism of rules and actors International Law EU Law often not binding necessarily general accession criteria (Copenhagen) non-discrimination Race-directive cultural diversity Bilateral agreements Domestic Law Constitution: equality, HRs, recognition, institutions Ordinary legislation: framework / specific laws Regional legislation: asymmetries, differentiation Provisions at local level Standar d s??? Woelk Minority Rights 7

8 International Covenant on Civil and Political Rights (ICCPR) Art. 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 practise their own religion, or to use their own language." most widely accepted legallybinding provision on minorities not subject to official recognition of a minority by a State no explicit call for special measures by States States that have ratified are obliged to ensure that all individuals under their jurisdiction enjoy their rights Woelk Minority Rights 8

9 Framework Convention for the Protection of National Minorities FCNM (CoE) ETS no. 157 (1997) First legally binding international treaty concerning minority-protection, but no directly applicable rights Preamble:... essential to stability, democratic security and in peace in European continent No precise definition of minority No explicit recognition of collective rights Rights of individuals framed as State obligations Weak monitoring system Woelk Minority Rights 9

10 European Charter for Regional or Minority Languages (CoE) ETS no. 148 (1992) Emphasis on the cultural dimension, not per se an instrument of minority rights Respect of State capabilities: à la carte -approach, no direct applicable rights for the speakers Obligations: education, judiciary, administration and public services, media, culture, economy, social life and cross-border exchanges Aim: diversified and culturally pluralist Europe ional_or_minority_languages/ Woelk Minority Rights 10

11 OSCE Recommendations Soft Law: imposition or persuasion? Protection and participation Different approach: set of ideas, non-binding expert recommendations rather than binding standards Lund Recommendations on Effective Participation of National Minorities in Public Life (September 1999) Oslo Recommendations on Linguistic Rights of National Minorities (February 1998) The Hague Recommendations on Education Rights of National Minorities (October 1996) Woelk Minority Rights 11

12 Evolutionary Process of conflict-settlement and living-together 1. End of Conflict: Compromise 3. Normalisation: New Orientation 2. Implementation of the compromise Time-factor and dynamics of process Woelk Minority Rights 12