Protection of rights of minorities within human rights legal standards Dr Vera Klopčič Slovenia

Paper presents an overview on: Relevant provisions of the international human rights instruments and instruments for protection of minorities adopted at universal and regional level / UN Convention on the Rights of the Child, Coe Framework Convention for the Protection of National Minorities, European Charter for Regional or Minority Languages /. Historical background and recent developments in the field of protection of minorities and recognition of the right to education in the context of inclusion of all members of minorities.

UNIVERSAL DECLARATION OF HUMAN RIGHTS UNIVERSAL DECLARATION OF HUMAN RIGHTS was proclaimed in 1948 as a common standard of achievement for all peoples and all nations. PREAMBLE Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Article 1. All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

The European Convention on Human Rights (1950) Preamble reffers to the Universal Declaration and declares enforcement of certain of the Rights stated in the Universal Declaration as the aim of the Convention; The Convention established the new institution: European Court of Human Rights (ECHR) and any person who feels that his/ her human right have been violated by a state can appeal to the ECHR.

The UN Convention on the Rights of the Child The Convention on the Rights of the Child, adopted by the United Nations General Assembly in 1989 provides an essential legal framework for protection of children rights. Preamble inter alia declares that children are subjects of human rights, including the right to life, survival and personal development. States Parties should respect the importance of the traditions and cultural values of each people for the protection and harmonious development of the child. According to the UN Convention, States are obliged to respect the best interest of the child in all decisions relating to the status and rights of children.

Right to education/UN Convention/ Article 29 1. States Parties agree that the education of the child shall be directed to: (a) The development of the child's personality, talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child's parents, his or her 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; (d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; (e) The development of respect for the natural environment.

Rights of children belonging to minority groups Article 30 In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.

Minority issues within the scope of human rights protection Recently, minority issues have again become an important factor of international relations and occupy an important position in discussions on human rights on the whole. Today, cultural diversity is declared as enrichment of societies. New instruments provide the obligation of the States to create adequate conditions for the expressing, preserving and promoting of national minority identity, as well as to provide for an atmosphere of tolerance and dialogue.

Protection of minorities in the “century of nations" In the 20th century - "the century of nations and nation States" - when great importance was ascribed to the ethnic principle and to the right of self-determination, the theory of the ethnic dimension of self-determination of nations as groups prevailed. Therefore, the international minority protection mechanism was based on territorial principle. Special rights, and rights in the field of education as well, were granted only to some “traditional” national minorities.

Classical approach Term"traditional national minorities", applies for a groups which are “parts of the nation leaving in another, usually neighboring states”. According to such approach, national minorities should have a country of origin, acting as a protector of their rights at international level.

Which groups could be defined as minorities? Special Rapporteur Francesco Capotorti, (1979) in the “Study on the rights of persons belonging to ethnic, religious, and linguistic minorities” proposed a draft definition: a minority is "a group numerically inferior to the rest of the population of a State , whose members - being nationals of the State- posses ethnic, religious or linguistic characteristics differing from the rest of the population and who, if only implicitly, maintain a sense of solidarity, directed towards preserving their culture, traditions, religion or language", prepared by Francesco Capotorti ( Capotorti 1976: 5)).

Evolution of international standards In the last decades of the 20th century important documents on minority protection were adopted at international level. The right to education free from discrimination has been recognized as universal human right in international documents. The respect for the rights of minority groups, antidiscrimination and the appreciation, preservation and development of cultural diversity as richness of the community is today a significant indicator of the degree of democracy of modern states. Recently, new term of “ vulnerable” groups was introduced, which covers a wider range of marginalised groups.

Framework convention The Convention is the first overall and compulsory international legal document on national minority protection. As it is well known the Framework Convention for Protection of National Minorities (1995) does not contain a definition of a term “national minority”, and gives discretionary power to the states to implement the principles enshrined.

Right to education Article 12 The Parties shall, where appropriate, take measures in the fields of education and research to foster knowledge of the culture, history, language and religion of their national minorities and of the majority. In this context the Parties shall inter alia provide adequate opportunities for teacher training and access to textbooks, and facilitate contacts among students and teachers of different communities. The Parties undertake to promote equal opportunities for access to education at all levels for persons belonging to national minorities.

Use of minority languages Article 10 The Parties undertake to recognise that every person belonging to a national minority has the right to use freely and without interference his or her minority language, in private and in public, orally and in writing. In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if those persons so request and where such a request corresponds to a real need, the Parties shall endeavour to ensure, as far as possible, the conditions which would make it possible to use the minority language in relations between those persons and the administrative authorities.

The European Charter for Regional or Minority Languages The European Charter for Regional or Minority Languages is the only international legal instrument that exclusively addresses the issues related to the protection and promotion of linguistic diversity. The main purpose of the Charter is to protect regional or minority languages spoken in member states of the Council of Europe. Different from the Framework Convention for Protection of National Minorities, even though the two instruments are complementary to one another, the Charter concentrates not on minorities as such but on the protection of regional or minority languages.

Definition in the Charter Now what does this concept of "regional or minority languages" actually mean? According to the definition contained in Article 1 of the Charter, they are languages which are traditionally used within a given territory of a state by nationals of that state who form a group numerically smaller than the rest of the population. In expert circles and literature, the exclusion of other languages, spoken by migrants or other non –citizens is observed as one of the main shortages of the Charter.

Open issues For instance, at what point can a language be regarded as being traditionally used in a given territory? Or when does a particular idiom cease to be a dialect and become a separate language? Linguistics provides no definite answers to such questions, and socio-psychological and political factors inevitably play a role in the decision. As a result, the authors of the Charter decided not to draw up a list of regional and minority languages in Europe. Some people regard this as a failing, because it leaves the decision to the respective state.

Protection of non territorial languages The Charter also provides for the protection of non territorial languages, which are languages that cannot be attached to a certain territory. These are languages such as Yiddish and Romani languages. However, in some states such as Finland, there are two official languages, Finnish and Swedish. Swedish is protected under the Charter as the lesser widely used official language. In these circumstances, where an official language is less widely used on the whole or parts of a territory of a state, the Charter can be very useful because a particular state language can profit from the protection mechanism of the Charter.

The part II of the Charter The part II of the Charter sets out the objectives and principles to all regional or minority languages, spoken in a particular territory and provides long-term goals of language policy. These objectives and principles include in particular the principle of recognition of regional and minority languages, as a value for the whole country and community, promotion of oral and written use of language in public, social and economic life and teaching and study of these languages at all appropriate levels. Promotion of mutual respect for all regional or minority languages and encouragement for contacts among them is linked to idea of linguistic pluralism in multicultural societies.

The third part The third part of the Charter contains specific provisions to encourage the use of languages, indicated in the instrument upon ratification. This section imposes an obligation on states to take positive measures to protect and promote regional or minority languages in several areas, namely: education, the right use of language in relation to administrative and judicial authorities, the media, cultural activities, economic and social life and in cross-border cooperation. The scope of protection may vary depending on the situation of each language (the number of speakers, historical circumstances, the importance of the total geographical area, etc..), But any State Party has to establish a minimum of 35 measures for each language that is chosen and indicated in the instrument on ratification .

Monitoring mechanism As for the implementation mechanism, the Parties must present every three years to the Secretary General of the Council of Europe a report on the policy and measures adopted to implement the provisions they have undertaken. A Committee of independent Experts, composed of individuals of recognized competence in the matters dealt with in the Charter, examines these reports, which are made public by the State Party and of course by the Council of Europe.

The MINLANG Committee The Committee’s role is to evaluate the existing legal acts, regulations and real practice applied in each State for its regional or minority languages. It has established its working methods accordingly. The Committee gathers information from the respective authorities and from independent sources within the State, so as to attempt to obtain a just and fair overview of the real language situation.

Protection of Roma in international documents Having been subject to unfavourable historical situation and negative attitudes on the part of majority populations, Roma continue to live in unfavourable social conditions and are still victims of marginalization and prejudice. That is why the documents treat them as a threatened/vulnerable community which has to be given the chance of social integration. In 2004 legal experts in EU even proposed a special Directive on social integration of Roma.

Segregation of Roma children The problem of segregation of Roma children has been taken up by the European Court of Human Rights (ECHR) in several cases. ECHR stated in recent judgments that segregation of Roma children is violation of the provisions on prohibition of discrimination in connection with the right to education. However, practices that Roma children are placed in special classes or institutions still exist in several countries. Education in segregated schools leaves them poor chances for further education and extremely limited options of finding work.

General remarks In the context of integration in the field of education, the importance of equal access to education is singled out in international instruments and in the process of monitoring. States Parties shall encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and co-operation among all persons living on their territory International instruments do not give a single answer about the language in which the instruction should be conducted.

Implementation of international standards In the first instance, the aim is to protect members of minority or vulnerable groups against discriminatory treatment. The Parties are obliged to undertake appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity. However, legal regulation and implementation of international standards in individual states is doubtless strongly influenced by diverse factors deriving from concrete political, geographical, historical, economic and other circumstances.

Thank you Thank you for your attention! HVALA