LAW 221: INTERNATIONAL LAW Dr. Başak Çalı

Protection of Minorities in International law Outline

Sources Bilateral minority rights treaties International human rights law The 1992 General Assembly Declaration Commentary and soft law Regional treaties and regimes, i.e. the Council of Europe Framework Convention on the Protection of National Minorities Sources

Historical evolution Bilateral minority rights treaties Protection of Minorities through IHRL Protection of Minorities through the GA Regional multilateral protection of minorities (the Council of Europe, the EU and the OSCE) Historical evolution

Bilateral minority rights treaties They are inter-state treaties They cannot be ‘directly’ enforced by minority groups They rely on the principle of reciprocity They afford a) non-discrimination and equality rights to minority groups and b) special protections to enable minorities to pursue their language, culture and religion Bilateral minority rights treaties

Protection of Minorities are covered in Articles 37-45 Treaty of Lausanne

ARTICLE 37. Turkey undertakes that the stipulations contained in Articles 38 to 44 shall be recognised as fundamental laws, and that no law, no regulation, nor official action shall conflict or interfere with these stipulations, nor shall any law, regulation, nor official action prevail over them.  

Equality rights and Non-discrimination Equal civil and political rights Equal treatment before the law Articles 38-39-40

As regards public instruction, the Turkish Government will grant in those towns and districts, where a considerable proportion of non-Moslem nationals are resident, adequate facilities for ensuring that in the primary schools the instruction shall be given to the children of such Turkish nationals through the medium of their own language. This provision will not prevent the Turkish Government from making the teaching of the Turkish language obligatory in the said schools. In towns and districts where there is a considerable proportion of Turkish nationals belonging to non-Moslem minorities, these minorities shall be assured an equitable share in the enjoyment and application of the sums which may be provided out of public funds under the State, municipal or other budgets for educational, religious, or charitable purposes. The sums in question shall be paid to the qualified representatives of the establishments and institutions concerned Article 41

The Turkish Government undertakes to take, as regards non-Moslem minorities, in so far as concerns their family law or personal status, measures permitting the settlement of these questions in accordance with the customs of those minorities. These measures will be elaborated by special Commissions composed of representatives of the Turkish Government and of representatives of each of the minorities concerned in equal number. In case of divergence, the Turkish Government and the Council of the League of Nations will appoint in agreement an umpire chosen from amongst European lawyers. The Turkish Government undertakes to grant full protection to the churches, synagogues, cemeteries, and other religious establishments of the above-mentioned minorities. All facilities and authorisation will be granted to the pious foundations, and to the religious and charitable institutions of the said minorities at present existing in Turkey, and the Turkish Government will not refuse, for the formation of new religious and charitable institu- tions, any of the necessary facilities which are guaranteed to other private institutions of that nature. Personal status laws

Turkish nationals belonging to non-Moslem minorities shall not be compelled to perform any act which constitutes a violation of their faith or religious observances, and shall not be placed under any disability by reason of their refusal to attend Courts of Law or to perform any legal business on their weekly day of rest. This provision, however, shall not exempt such Turkish nationals from such obligations as shall be imposed upon all other Turkish nationals for the preservation of public order. Article 43

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. ICCPR Article 27

ICCPR Article 27 Applies only to: “persons belonging to... minorities” Addresses identity issues: the rights to culture, to the free exercise of religion, and to use one's own language. ICCPR Article 27

Article 27 rights are distinct from, and additional to, all the other rights which, individual members of minority groups have. There is a distinction between the right to self-determination of peoples and minority rights of individuals. Article 27 rights does not prejudice sovereignty and territorial integrity. Indigenous peoples’ right to enjoy culture is closely associated with territory and use of resources. General Comment 23 (1994)

Minorities are defined as groups who are a common religion/culture/language Non-citizens can also be a minority group. The 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. Both positive and negative measures are required to protect individuals belonging to minorities. 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. General Comment 23

UN Declaration

Duty to protect the existence of religious, linguistic, cultural or ethnic minorities (Article 1) Right to participate effective in decisions concerning the minority (Article 2) Rights should be exercised individually and collectively (Article 3) Right to learn and have instruction in the mother tongue (Article 4) Right to express and develop culture, religion, language (Article 4) Right to be acknowledged in the broader education policy (Article 4) Right to be fully included in the economic policies of the country (Article 4) 1992 Declaration

Right to develop culture as long as it does not contradict with national laws and international standards (Article 4/2) This Declaration shall not limit broader obligations under other treaties Nothing in the present Declaration may be construed as permitting any activity contrary to the purposes and principles of the United Nations, including sovereign equality, territorial integrity and political  independence of States   1992 Declaration

Rise of Human Rights Law after the 2nd WW Rights belong to individuals ( and not to groups) States have duties towards individuals Individuals can claim these rights Rise of Human Rights Law after the 2nd WW

Implications of this for minorities A) Individuals belonging to minorities have rights independently of their legal minority status. B) The fact that a state has not officially recognised a group as a minority does not mean that the state does not own positive obligations to a member of a de facto minority. Implications of this for minorities

The CoE: The Framework Convention on the Protection of National Minorities The OSCE: High Commissioner on National Minorities Regional protection

CoE Framework Convention Not signed or ratified: Turkey, France, Andorra, Monaco Signed, but not ratified: Belgium, Greece, Iceland, Luxemburg CoE Framework Convention

Definition of a national minority The Framework Convention for the Protection of National Minorities (FCNM) does not contain a definition of "national minority”. There is no general definition agreed upon by all Council of Europe member states. Each party of the Framework Convention is therefore left with a margin of appreciation to assess which groups are to be covered by the Convention within their territory. Definition of a national minority