The Rights of Armenian Minorities in Lebanon and Turkey under National and International Law
Table Of Contents
- About the author
- About the book
- This eBook can be cited
- List of Acronyms
- 1. Introduction
- 1.1 General Background
- 1.2 Research Question, Methodology, and Structure
- 2. Who Are Minorities and What Are Relevant Minority Rights at the International and Regional Levels?
- 2.1 Who Are Minorities According to International Law?
- 2.2 Brief History
- 2.3 What Are the Rights of Minorities and Their Responsibilities?
- 2.3.1 Protection and Promotion of Right to Existence
- 2.3.2 Protection and Promotion of Identity
- 2.3.3 Non-discrimination and Equality
- 2.3.4 Effective Participation
- 2.3.5 Minority Responsibilities Vis-à-vis International Human Rights Law and the State
- 2.4 Minority Rights in United Nations Documents
- 2.4.1 The UN Charter
- 2.4.2 Universal Declaration of Human Rights (UDHR)
- 2.4.3 International Covenant on Civil and Political Rights (ICCPR)
- 2.4.4 International Covenant on Economic, Social and Cultural Rights (ICESCR)
- 2.4.5 International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
- 2.4.6 UNESCO’s Convention against Discrimination in Education
- 2.4.7 UNESCO’s Declaration on Race and Racial Prejudice (DRRP)
- 2.4.8 The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (The Minority Declaration)
- 2.4.9 The Convention on the Rights of the Child (CRC)
- 2.4.10 Genocide Convention
- 2.4.11 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law
- 2.4.12 Responsibility to Protect (R2P)
- 2.5 The Rome Statute of the International Criminal Court (ICC)
- 2.6 Minorities and Customary International Law and Peremptory norms
- 2.7 Minority Rights in UN Bodies and Mechanisms
- 2.7.1 The Human Rights Council and Its Subsidiary Bodies
- 2.7.2 The Office of the UN High Commissioner for Human Rights (OHCHR)
- 2.7.3 OHCHR Indigenous Peoples and Minorities Section (IPMS)
- 2.7.4 The UN High Commissioner for Refugees (UNHCR)
- 2.7.5 The UN Children’s Fund (UNICEF)
- 2.7.6 The UN Educational, Scientific and Cultural Organization (UNESCO)
- 2.7.7 The UN Development Programme (UNDP)
- 2.8 Minority Rights in Europe
- 2.8.1 The Council of Europe (CoE)
- 2.8.2 Organization for Security and Co-operation in Europe (OSCE)
- 2.8.3 The European Union (EU)
- 2.9 Minority Rights in the Arab Region
- 2.9.1 The Organization of the Islamic Conference (OIC)
- 2.9.2 Marrakesh Declaration
- 2.9.3 The League of Arab States
- 2.10 Concluding Remarks on Minority Rights under International, as well as Europe and Arab Regions
- 3 The Rights of Armenian Minority in Lebanon
- 3.1 Lebanese Legal and Political Regimes
- 3.1.1 Brief History
- 3.1.2 The Power Sharing System in Lebanon
- 3.1.3 The Lebanese Constitution, the National Pact and the Tai’f Agreement
- 3.1.4 The Justice System and Minorities in Lebanon
- 3.1.5 Electoral Law
- 3.1.6 Incorporation of International Law in Lebanese Domestic Law
- 3.1.7 Protection and Promotion of Human Rights; General Framework
- 3.2 What Does It Mean to Be a Minority in Lebanon? Are Armenians a Minority?
- 3.3 Existing Challenges
- 3.4 The Armenians in Lebanon
- 3.4.1 Historical Account of the Armenians in Lebanon
- 3.5 The Institutional Structure of the Armenians in Lebanon
- 3.5.1 Religious Institutions
- 3.5.2 Political Institutions
- 3.5.3 Educational, Social and Cultural Institutions
- 3.5.4 Judicial Institutions
- 3.6 Armenian Minority Rights in Lebanon
- 3.6.1 The Right to Existence
- 3.6.2 The Right to Identity
- 3.6.3 The Right to Equality and Non-discrimination
- 3.6.4 The Right to Participation
- 3.7 The Lebanese State’s Obligations towards Armenian Minority Rights
- 3.7.1 Respecting the Rights of Armenian Minority in Lebanon
- 3.7.2 Protecting the Rights of Armenian Minority in Lebanon
- 3.7.3 Ensuring the Rights of the Armenian Minority in Lebanon
- 3.8 Armenians in Lebanon and International/Regional Human Rights Mechanisms
- 3.9 The Role of Republic of Armenia in Promoting the Rights of Armenians in Lebanon
- 3.10 Concluding Remarks on the Rights of Armenians in Lebanon
- 4. The Rights of Armenian Minority in Turkey
- 4.1 Introduction
- 4.2 Historical Development of Minority Regimes in Turkey
- 4.2.1 The Millet System and Minorities in the Ottoman Empire
- 4.2.2 Young Turks Era
- 4.2.3 The Republican Era
- 4.3 Contemporary Era and Existing Challenges
- 4.4 Turkish Legal and Political Regimes vs. Minorities
- 4.4.1 The Turkish Constitution
- 4.4.2 The Turkish Penal Code
- 4.4.3 The Treaty of Lausanne
- 4.5 Incorporation of International and Regional Laws in Turkish Domestic Law
- 4.6 Turkey’s National Human Rights Mechanisms
- 4.7 Turkey’s EU Accession Process and Minority Rights
- 4.8 Turkey - ECtHR Relations
- 4.9 What Does It Mean to Be a Minority in Turkey?
- 4.10 The Armenians in Turkey
- 4.10.1 The Armenians in the Ottoman Empire until WWI
- 4.10.2 The Armenian Genocide
- 4.10.3 The Armistice Period and the Returning Armenians
- 4.10.4 The Armenians and the Treaty of Sèvres
- 4.10.5 Armenians at the Lausanne Treaty
- 4.10.6 The Relationship between the Treaty of Sèvres and the Treaty of Lausanne
- 4.10.7 The Situation of the Armenians in the Turkish Republic
- 4.10.8 Armenian Institutions
- 4.10.9 Armenian Schools
- 4.10.10 Religious Institutions
- 4.10.11 Foundations and Associations
- 4.11 Armenian Minority Rights in Turkey
- 4.11.1 The Right to Existence
- 4.11.2 The Right to Identity
- 4.11.3 The Right to Equality and Non-discrimination
- 4.11.4 The Right to Participation
- 4.12 The Turkish State’s Obligations towards Armenian Minority Rights
- 4.12.1 Respecting the Rights of Armenian Minority in Turkey
- 4.12.2 Protecting the Rights of Armenian Minority in Turkey
- 4.12.3 Ensuring the Rights of the Armenian Minority
- 4.13 Armenians in Turkey and International/Regional Human Rights Mechanisms
- 4.14 The Role of the Republic of Armenia and Armenian Diaspora in Promoting Armenians’ Rights in Turkey
- 4.15 Concluding Remarks on the Rights of Armenian Minority in Turkey
- 5. Comparison between Lebanese and Turkish Minority Rights Regimes
- 6. Conclusions
- 1. Laws/Regulations/Decrees/Case Laws
- 2. Books /Articles /Journals/Reports
- 3. Online Sources
- 4. Personal Interviews
- Series Index
1.1 General Background
Armenian minorities have been living in the Middle East for centuries.1 They constitute a minority on four separate levels: ethnic, national (Armenian), linguistic (Western and Eastern Armenian languages) and religious (mainly Christian). Following the 1915 Armenian Genocide, which accounted for up to 1.5 million deaths,2 many Armenians after being displaced from their homes took refuge in Syria and Lebanon as well as dispersed worldwide.3 However, some Armenians remained in the homeland, in the area that became the Turkish Republic in 1923.
Nowadays, Armenian minorities exist in countries worldwide, and present-day Armenia, a country with approximately three million inhabitants,4 has links with global diasporas that number around ten million.5 Many Armenians settled in Middle Eastern countries immediately adjacent to their homeland, but unfortunately these countries have found themselves at the heart of the world’s trouble spots, and have serious problems of their own to deal with, especially in areas related to peace, security, stability, rule of law, human rights and minority rights.
The Armenian community in Lebanon is facing profound challenges in terms of security, stability and emigration patterns, as well as difficulties in preserving its Armenian identity and collective institutional existence. In Turkey, in addition ←19 | 20→to what Armenians in Lebanon are encountering, Armenians are frequently subject to anti-Armenian rhetoric based on prejudice, discrimination and racial hatred. In both countries, the rights of Armenians are increasingly coming under pressure due to domestic and external disturbances and growing socioeconomic difficulties. It is worth noting that they also face linguistic restrictions, which may lead to the disappearance of their language (Western Armenian, which is spoken by majority of Armenians in Turkey and Lebanon, is on UNESCO’s “definitely endangered”6 language list). The Armenians of Lebanon and Turkey are encountering significant problems in terms of enjoying their human and minority rights.
The thesis will analyze local Statutes and practices towards Armenian minorities in Lebanon and Turkey in order to examine how the actual situation accords with national, regional, and international human rights law in both countries. The thesis will also explore the role of the Republic of Armenia in protecting and promoting the Armenians’ rights in the two countries. Furthermore, the thesis will study the extent to which Armenians are aware of their rights and the degree to which they are involved in human and minority rights activities and mechanisms both locally and internationally.
Lebanon and Turkey have been selected for detailed study, due to their individual complexities within a region that is itself challenging in legal, political, social, and economic terms. Human and minority rights violations and majority-minority debates are already rife in these two States.7 This is why the historical experiences, as well as the legal, political, and socioeconomic situation of Armenian minorities are worthy of study in both countries. By examining the ways national and international human rights laws are enforced and protected, or violated and ignored, the thesis hopes to highlight the problems facing Armenians in Lebanon and Turkey and to add value on human and minority rights discourses.
1.2 Research Question, Methodology, and Structure
The central research question addressed by this thesis will examine the extent to which the rights of Armenian minorities to exist, to enjoy their own culture, to ←20 | 21→profess and practice their own religion, and to use their own language in community with other members of their group, as well as their right to participation are respected, protected and fulfilled in Lebanon and Turkey.
In order to address the main research question, it is important to answer a number of sub questions:
a) Who are minorities and what are their rights under international human rights law? What is the role of international and regional human rights instruments in promoting the rights of minorities?
b) How do the legal and political systems as well as the general minority rights regime in Lebanon and Turkey function? What is the legal situation and internal organization of Armenians in Lebanon and in Turkey?
c) In what manner do the Armenian minorities exercise their rights in each country?
d) To what extent do Lebanon and Turkey respect, protect and fulfill the rights of the Armenian minorities?
e) What is the role of the Republic of Armenia in promoting the rights of Armenians in Lebanon and Turkey at national and international levels?
To address these questions posed in the most constructive and practical way, the thesis will apply the following methodology:
1) An analysis of existing legal documents, covenants, conventions, treaties, laws, and jurisprudence as well as literature regarding minority rights on international and regional levels. The thesis will study the relevant documents in international law regarding minority rights, particularly the Article 27 of ICCPR (including the case laws and General Comments of HRC) and Article 30 of the CRC as legally binding documents. After analyzing pure minority rights, the thesis will also analyze non-discrimination documents that are related to minority issues.
2) In terms of non-legally binding documents, the thesis will study the Minority Declaration, the reports of the Special Rapporteur on Minority Issues, the reports of the annual Minority Rights Forum of the Human Rights Council, the reports of the Human Rights Council, Universal Periodic Review, the Office of the United Nations High Commissioner for Human Rights, the Office of the United Nations High Commissioner for Refugees, UNESCO, and the Commission on Human Rights. By examining Armenian minorities as a case study, this thesis will explore the extent to which States adopt and apply internationally accepted human rights recommendations related to more ←21 | 22→general minority rights, as well as the extent to which minorities in these countries benefit from these international recommendations.
3) Since Turkey and Lebanon are also part of regional human rights mechanisms, the thesis will study the minority rights both in European and Arab regions. For European region documents, the thesis will study the relevant documents such as the ECHR the FCPNM, the reports of the OSCE’s High Commissioner of National Minorities, the European Charter for Regional or Minority Languages. In reference to Arab region, the thesis will examine the development and current status of minority rights in the OIC, the LAS and the Marrakesh Declaration.
4) An analysis of the current legal mechanisms and institutions for respecting, protecting, and fulfilling minority rights in each country, including the constitutional, administrative, judicial, electoral, socioeconomic, and local frameworks, and a comparison of each country’s systems against the standards laid down by international law.
5) A brief analysis of the internal laws of Armenian minorities in Lebanon and Turkey. In these countries, each Armenian denomination has its own internal codes and regulations. The thesis will study these regulations, their legal validity and impacts as well as their compatibilities with human rights. In addition, it will consider the current difficulties and contradictions surrounding the application of the internal regulations and will find the gaps that need to be addressed by the current regulations for the improvement of minority rights.
6) An analysis of the historical and political developments of Lebanon and Turkey vis-à-vis the minorities. This is because addressing the question of minority rights in Lebanon and Turkey cannot be limited to an examination of laws that seek to protect minority communities. It is only by revisiting the historical/political developments of the region it would be possible to better understand the genesis of legal dynamics and understand the ways national and international human rights laws are enforced and protected or violated and ignored. Without analyzing the historical and political developments that resulted in the current legal regimes in both countries, it would be difficult (almost impossible) to answer the research questions of the thesis.
The thesis will be structured into six chapters. Following the main introduction, the second chapter will examine the nature and definition of minorities according to international law and the history of the development of minority rights. It will also analyze current minority rights legislation, legal documents and instruments that are in place to respect, protect and fulfill these rights under ←22 | 23→three headings – firstly the United Nations (UN), which will be divided into UN Documents and UN Bodies and Mechanisms, secondly European documents, bodies and mechanisms, and thirdly the existing legal documents, bodies and mechanisms in Arab and Muslim States. Looking at the conventions, treaties, frameworks, charters, directives, recommendations and legal mechanisms that have affected and impacted the treatment of Armenian minorities, will offer a better grounding for this thesis. The final section of the chapter will offer a conclusion and comparison of international and regional minority rights provisions.
The third and fourth chapters will separately address the rights of Armenians Minorities in Lebanon and Turkey. Each chapter will start with an analytical overview and analysis of the historical development, legal system as well as general human rights framework (including regional frameworks) of Lebanon and Turkey regarding minorities. After introducing what the term minority represents within each State’s legal context and presenting the existing minorities and the challenges they face, these chapters will briefly look at the history and the institutional and internal structures of the Armenians. This will be followed by a thorough analyzes and examination of the Armenians’ rights (the right to existence, the right to identity, the right to equality and non-discrimination and the right to participation) using relevant case laws, case studies as well as theoretical arguments. Based on the analyzes of the rights related issues Armenians face in each country, the chapters will study the Lebanese and Turkish States’ obligations towards Armenians in terms of respecting, protecting and fulfilling of their rights. Before concluding each chapter, there will be analytical sections on the extent to which Armenians in Lebanon and Turkey are engaged in international and regional human rights mechanisms as well as the role of the Republic of Armenia in promoting the rights of Armenians in Lebanon and Turkey.
Before moving on to the main conclusions of the thesis, the sixth chapter will compare the Lebanese and Turkish Minority rights regimes in terms of the commonalities, differences, good practices, violations and drawbacks each legal system contains.8←23 | 24→
1 “The first written reference to Armenians dates back to the sixth century BCE, with the majority living in areas that became part of Turkey and Iran,” Tsolin Nalbantian in Armenians in the Middle East from Marginalization to Everyday in Paul S. Rowe ed., Routledge Handbook of Minorities in the Middle East (London: Routledge, 2019), p. 272.
2 See Chapter 4.10.2 below and Raymond Kevorkian, The Armenian Genocide: A Complete History (New York: I.B. Tauris, 2011) and Benny Morris & Dror Se’eavi, The Thirty-Year Genocide: Turkey’s Destruction of Its Christian Minorities, 1894–1924 (USA: Harvard University Press, 2019).
4 “Report of Statistical Committee of Republic of Armenia, Permanent Population of the Republic of Armenia as of 01.10.2020,” Republic of Armenia Statistical Committee, 01.10.2020, https://www.armstat.am/file/article/nasel_01.10.2020.pdf.
5 Monique Bolsajian, “The Armenian Diaspora: Migration and Its Influence on Identity and Politics,” Global Societies Journal, 6 (2018), p. 30.
6 See the official website of UNESCO Atlas of the World’s Languages in Danger, https://bit.ly/300DJYi.
7 Paul S. Rowe ed., Routledge Handbook of Minorities in the Middle East (London: Routledge, 2019), pp. 2–7.
8 The research phase of the thesis has stopped in March 2021. Therefore, all relevant events and developments that took place after March 2021 is not considered in the thesis.
2. Who Are Minorities and What Are Relevant Minority Rights at the International and Regional Levels?
2.1 Who Are Minorities According to International Law?
Almost all countries in the world have national, ethnic, linguistic and religious minorities. Distinctions within communities have existed throughout history, but majority and minority concepts are relatively modern in terms of international law.9 There is still no universally agreed or legally binding definition of the word “minority”10 due to the complexity of the minority phenomenon, the variety of situations in which minorities live and the fear States have regarding the consequences of minority recognition that might lead to secessionist movements and threaten State security.11 In addition, some minorities live in distinct areas, separated from the dominant part of the population, whilst others are distributed throughout the country.12 Some have a strong sense of collective identity and history, others retain only fragmented notions of common heritage.13 Thus a definition that is too broad would be meaningless, whereas a narrower one would not apply to all minorities.
In 1950, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities drafted guidelines defining minorities:
“a) The term minority includes only those non-dominant groups in a population which possess and wish to preserve stable ethnic, religious or linguistic traditions or characteristics markedly different from those of the rest of the population.←25 | 26→
b) Such minorities should properly include a number of persons sufficient in themselves to develop such characteristics.
c) The members of such minorities must be loyal to the State of which they are nationals.”14
This guideline was discussed but discarded, because such a general definition cannot fit every minority, since each minority group has distinct characteristics and circumstances.15 In addition, neither numerical minimum threshold, nor the faithfulness vis-a-vis the State are requirements often to be indicated in other proposed definitions.16 Later, while studying the implications of Article 2717 of ICCPR, Francesco Capotorti18 defined a minority as:
“A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.”19
It is worth mentioning that Capotorti’s definition has been widely accepted in academic and institutional circles dealing with minority issues.20 However, another attempt was made by Deschenes, who had been asked by the UN Sub-Commission to define the term:
“A group of citizens of a State, constituting a numerical minority and in a non-dominant position in that State, endowed with ethnic, religious or linguistic characteristics which ←26 | 27→differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by collective will to survive and whose aim is to achieve equality with the majority in fact and in law.”21
An interesting divergence between the two definitions above surrounds the use of “equality with the majority in fact and in law” in Deschenes’ definition as a goal of minority groups, which refers to differential treatment for members of minorities, rather than to a subjective component of the definition. The subjective element is generally linked to the wish to retain separate characteristics.22 In this context, Van Der Stoel provided useful points of reference regarding the classification of a national minority:
“The existence of a minority is a question of fact and not of definition. […] First of all, a minority is a group with linguistic, ethnic or cultural characteristics, which distinguish it from the majority. Secondly, a minority is a group which usually not only seeks to maintain its identity but also tries to give stronger expression to that identity.”23
What distinguishes van der Stoel’s definition is the desire of minorities to retain a ‘stronger expression’ of identity, which might not be true or necessary for well-integrated minorities.
In the light of these different definitions and the absence of legally binding definition of the term ‘minority’, it can be argued that, although there is no internationally accepted definition of a minority,24 there does seem to be some agreement regarding defining elements, even though some of these elements have different interpretations. The terms used in article 27 indicate that the persons designed to be protected are those who belong to a group and who share in common a culture, a religion and/or a language.25 The UN Minorities Declaration, adopted by consensus in 1992, refers to minorities as based on ethnic or national, religious, cultural, and linguistic identities.26 Article 1.1 of the Minority ←27 | 28→Declaration demands from States to protect the existence and identities of national or ethnic, cultural, religious and linguistic minorities within their respective territories,27 while Article 2.1 of the same Declaration indicates that “Persons belonging to national or ethnic, religious and linguistic minorities […] have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination.“.
In addition, the Permanent Court of international Justice states that “the existence of a minority is a question of fact before being a question of law or politics.”28 This means that any definition must include objective29 (e.g., shared ethnicity, language or religion) and subjective (i.e., individuals identify themselves as members of a minority) criteria.30 The subjective criteria inter-alia include the freedom to not be treated as a minority member without facing any disadvantages for their choice. FNPNM states in this regard “[e]very person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice.”31 It is now commonly accepted that recognition of minority status is not a State decision and should be based on objective and subjective criteria from minority members.32
Nevertheless, there are still challenges in using the term “minority” for certain communities because they identify themselves as minorities, but their host State refuses to recognize them as such.33 On the other hand, there are cases, minorities reject being referred as such due to perceived negative connotations.34←28 | 29→
HRC’s General Comment No. 23 on Article 27 of ICCPR addresses the dynamics between individual and group rights when it comes to minority rights. It states:
“Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. 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.”35
The emphasis on the individual characteristic of minority rights is central to the existing concept of human rights protection. However, minority individuals depend on the ability of their minority groups to maintain culture, language or religion and they usually exercise their rights in community with the other members of their group. In other words, as the HRC observes, 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.36
Regarding the positive measures aiming to protect the identity of a minority in community with the other members of the group, it should be observed that such positive measures, must respect the provisions of articles 2.137 and 2638 of the Covenant both as regards the treatment between different minorities and the treatment 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.39←29 | 30→
Moreover, HRC’s General Comment No. 23 is progressive in determining who can be considered a minority member, as far as it does not require that minority be nationals or citizens of the State.40 The same General Comment elaborated this view a step further, emphasizing that minority members “need not be permanent residents”41 to enjoy Article 27 and thus they shall not be denied the right to enjoy their own culture, practice their own religion and use their own language.
The current tendency is to adopt a more pragmatic and inclusive approach to minority definitions, rather than adhere to rigid legal definitions.42 Nevertheless, in practice, considerable latitude is left for each State to establish a definition that applies within its own jurisdiction, and there are substantial differences between such definitions within various countries.43 However, in doing so States must not rely on arbitrary or unjustified distinctions, which would be the source of discrimination.44
2.2 Brief History
International provisions for the protection of ethnic, religious, or linguistic minorities can be dated back to Augsburg (1555) and Westphalia (1648) religious peace treaties.45 In addition, in dismantling the Napoleonic Empire, the 1815 Congress of Vienna46 recognized some minority rights, as did the 1878 Treaty ←30 | 31→of Berlin47 which inter alia required from the Ottoman Empire a guarantee for the security of the Armenians against the Circassians and Kurds. However most nineteenth century international legal-political efforts were directed towards the unification of nations based on the principle of self-determination, rather than the protection of minority groups.48 As the nationalism grew, people outside the majority ethnic, linguistic or religious identity came increasingly under threat.49
By the end of the First World War, minority concerns returned to the forefront of international politics and were institutionalized by obligations set out within peace treaties, although these were generally limited to minorities in Central and Eastern Europe.50 On an international level, the first remarkable stage towards recognizing minority rights came via a series of minority treaties adopted by the League of Nations.51 For instance, the first of the minority treaties was the Polish treaty signed on 28 June 1919, followed by the Austrian, Czechoslovak and Yugoslavian treaties (known as Treaty of St Germain-en-Laye), the Treaty of Neuilly-sur-Seine, the Treaty of Sevres, etc.52
These treaties covered equality and non-discrimination and minorities’ religious, cultural, charitable and educational institutions, the right to citizenship as well as the right to use one’s own language in public and private. States were obliged to provide reasonable financial support to minority schools in which instruction at primary level would be in minority languages, and laws were passed protecting minorities from any subsequent discrimination.←31 | 32→
At the Versailles Peace Conference, the Supreme Council established the Committee on New States and for the Protection of Minorities.53 All new successor States were obliged to sign minority rights treaties as a precondition of diplomatic recognition.54 However, these treaties were part of the Wilsonian approach to international relations – idealistic representations that were increasingly ignored by respective governments, leading to the collapse of the system in the late 1930s. Even though the scope of minority treaties was limited (there was no agreement about the universal applicability of minority rights, and they applied only to a small number of defeated or new States) their significance should not be underestimated.55 They had tangible consequences for minorities within States and constituted an important step in developing international minority rights and human rights law. In particular, the acceptance of the principle of international monitoring mechanisms for minorities was a breakthrough in the development of international law,56 which largely presaged the later promotion of broader human rights by the UN.
Thus, after World War II, human rights were incorporated into the UN Charter and international human rights treaties. In its early years, the UN concentrated on universal human rights and decolonization and concluded that there was no need to include specific provisions for minorities, as long as individual human rights were protected.57 There is no indication of minority rights per se in the UN Charter, although it includes many provisions on human rights. Article 1 (3) of the UN Charter indicates that one of the main purposes of the UN is international cooperation “in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”58←32 | 33→
In other words, in contrast to the League of Nations, the UN took a more passive stance regarding the protection of minorities.59 This is, as Hafner argues, because “the elaboration of specific international regimes for the protection of ethnic minorities was impeded by the fear of some States that such a regime could have a centrifugal effect, possibly threatening the stability and creating a risk of dismemberment of the affected States.”60 Therefore, the 1948 Universal Declaration of Human Rights adopted an all-inclusive approach to human rights, guaranteeing the rights of “all members of the human family […] without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”61 Rights were granted irrespective of the groups to which people belonged, which tended to blur distinctions between groups such as national minorities and migrants.
However, later on, the UN recognized the distinction of guaranteeing minority rights beside general human rights and gradually understood that under general human rights obligations it is almost impossible to address minorities and to respect, protect and fulfill their rights. This is because certain groups such as minorities need special human rights which include affirmative actions or “positive discrimination” so they can preserve and protect their existence, culture and identity and prevent gradual disappearance particularly in the light of ongoing globalization.62 Therefore the UN gradually developed more specific mechanisms covering minority issues.
In 1960, UNESCO adopted the Convention against Discrimination in Education, recognising the rights of minority groups to undertake their own educational activities – including establishing their own schools and teaching in minority languages.63 In 1965, the UN adopted the CERD, prohibiting ←33 | 34→distinctions “based on race, colour, descent, or national or ethnic origin.”64 In 1966, Article 27 of ICCPR included a specific legal provision for advancing minority rights.65 The UN contributed further to developing principles to protect minorities with the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.66 In addition, it also introduced a new trend of recognizing collective rights, the most evident expression of which was the African Charter on Human and Peoples Rights.67 But despite this, almost all minority rights related documents emphasized individual rights and avoided adding a collective dimension.68 This is because, on one hand, minority rights are “exercised by an individual by virtue of belonging to a specific group, collective rights can only belong to a group because one individual cannot have the right realised unless all of the group has it realised.”69 On the other hand, States are still reluctant to grant collective rights to groups, since collective rights might threaten State sovereignty and “impose duties on a State that go beyond mere non-interference by requiring States to establish the conditions under which a group’s autonomy can be more effectively realized.”70
While these developments were significant, minority rights protection received more attention as the Cold War ended.71 This is because international ←34 | 35→institutions increasingly recognized the importance of minority rights and their contribution to the stability of States especially in Central and Eastern Europe and the former Soviet Union.72 A milestone step followed in 1992 by the adoption of the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities.73
In 1995, the Commission on Human Rights established a five-member working group to “[re]view the promotion and practical realization” of the Declaration, “[e]xamine possible solutions to problems involving minorities” and recommend “further measures, as appropriate, for the promotion and protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities.”74 The Working Group on Minorities held 12 sessions between 1995 and 2006, providing a venue for minority representatives to raise issues within the UN and talk directly with State representatives.75 The Working Group highly contributed in conceptualizing the rights of minorities and establishing good practices and other measures to promote and protect them.76 In this context, the UN adopted the 2005 World Summit Outcome, which notes that: “The promotion and protection of the rights of persons belonging to national or ethnic, religious, and linguistic minorities contribute to political and social stability and peace and enrich the cultural diversity and heritage of society.”77
Throughout the above developments – which on one hand were significant and somehow precedential, on the other hand they were slow and somehow fragmented78 – a continuous challenge has been the lack of universal agreement on just what a ‘minority’ is.←35 | 36→
2.3 What Are the Rights of Minorities and Their Responsibilities?
International human rights law protects and promotes minority rights on the hypothesis that religious, cultural, and linguistic affiliations are essential human attributes.79
The UN Independent Expert on Minority Issues, Gay McDougall, considers that minority rights can be broken down into four broad headings:
“1. Protecting a minority’s existence [Right to Existence], including through protection of their physical integrity and the prevention of genocide;
2. Protecting and promoting cultural and social identity, including the right of individuals to choose which ethnic, linguistic or religious groups they wish to be identified with, and the right of those groups to affirm and protect their collective identity and to reject forced assimilation [Right to Identity];
3. Ensuring effective non-discrimination and equality, including ending structural or systemic discrimination [Right to Non-Discrimination and Equality]; and
4. Ensuring effective participation of members of minorities in public life, especially with regard to decisions that affect them [Right to Effective Participation].”80
2.3.1 Protection and Promotion of Right to Existence
Minorities have the right to protection in terms of their collective physical existence.81 The Minority Declaration states that nations “shall protect the existence” of minorities “within their respective territories.”82 This includes prohibiting genocide and ethnic cleansing. As Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide (Hereafter Genocide Convention) indicates, any State intention to persecute national, ethnical, racial or religious groups “in whole or in part” is also prohibited, whether by killing members of the group or through other coercive measures devised to cause serious harm or physical destruction of the group.83 While the Genocide Convention is not ←36 | 37→limited to protecting minorities, genocides most often targets minorities in this way. ICC also prohibits the persecution of racial, national, ethnic, cultural or religious groups.84
General Comment No. 23 of HRC illustrates that “the existence of an ethnic, religious or linguistic minority in a given State party does not depend on a decision by that State party but [needs] to be established by objective criteria.”85 At the same time, minority existence is directly linked to how a group defines itself. The principle that belonging to a minority is a personal choice includes the right to not be treated as a minority and the notion that no disadvantage may arise from the exercise of such a choice.86 However, as long as minorities exist and claim to be so, States are under an obligation to ensure that their existence and the exercise of the right to existence 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.87
2.3.2 Protection and Promotion of Identity
Minorities have the right to protect their identity, which entails both positive and negative obligations for the State.88 Article 27 of ICCPR clearly indicates that minorities have the right “to enjoy their own culture, to profess and practise their own religion, or to use their own language.”89 Since the protection of these rights directly ensures the survival and sustained development of the religious, cultural and social identity of the minorities concerned, the HRC concludes 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.”90←37 | 38→
In addition, Article 8 of the CRC secures the right of the child “to preserve his or her identity.”91 Article 29.1 [c] of CRC states that children’s education should be aimed at the child’s “…own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own.”92 Meanwhile, Article 18.4 of ICCPR considers that each State should respect the freedom of parents “to ensure the religious and moral education of their children in conformity with their own convictions.”93
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- 2022 (October)
- Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2022. 474 pp.