Recent Developments in the UN Human Rights Committee’sApproach to Minorities, with a Focus on Effective Participation

Annelies Verstichel

PhD Researcher Law Department

European University Institute

Florence, Italy

1. Introduction..............................................................11.1. Two Developments.........................................................31.2. Articles 25 and 27 CCPR.....................................................4

2. Views on Communications...................................................62.1. Miqmaq Tribal Society v. Canada..............................................62.2. Ignatane v. Latvia.........................................................82.3. J.G.A. Diergaardt et al. v. Namibia.............................................102.4. Gillot v. France..........................................................122.5. Ilmari Länsman et al. v. Finland / Mahuika et al. v. New Zealand......................13

3. Conclusion...............................................................16

Abstract

The 1990s have been characterised by a marked shift within the minority protection regime from limited

protection against discrimination towards a more active engagement of the state in promoting a

participatory role for minorities in cultural, religious, social, economic and public life. As Article 27 of the

1966 International Covenant of Civil and Political Rights remains the main universal provision of legally-

binding effect offering all-round protection of minorities, this article will examine the UN Human Rights

Committee’s approach to participatory rights for minorities. Within an overall analysis of the relevant

communications, two recent developments are distinguished: the importance of Article 1 CCPR for the

interpretation of Articles 25, 26 and 27 CCPR and the nature of the participatory rights in Article 25 CCPR,

being not merely individual rights but allowing for forms of autonomy to comply with the requirement of

effective rights of participation.

1. Introduction

The 1990s have been characterised by a marked shift within the

minority protection regime from limited protection against

discrimination towards a more active engagement of the state in

facilitating the development of minority cultures and promoting a

participatory role for minorities in cultural, religious, social,

economic and public life.

The 1992 UN Declaration on the Rights of Persons Belonging to

National or Ethnic, Religious and Linguistic Minorities in

Articles 2.2, 2.3, 2.4, 2.5 and 4.51 and the 1995 Council of Europe

Framework Convention for the Protection of National Minorities in

Article 152 provide for participatory rights. The 1990 CSCE

Copenhagen Document on the Human Dimension paragraph 353 inspired

for the drafting of the participatory rights provisions of the

previous two documents. It focuses on the effective participation

of national minorities in public affairs and was subsequently1 1992 UN Declaration on Minorities:Article 2:2. Persons belonging to minorities have the right to participate effectively incultural, religious, social, economic and public life. 3. Persons belonging to minorities have the right to participate effectively indecisions on the national and, where appropriate, regional level concerning theminority to which they belong or the regions in which they live, in a manner notincompatible with national legislation. 4. Persons belonging to minorities have the right to establish and maintaintheir own associations.Article 4: 5. States should consider appropriate measures so that persons belonging tominorities may participate fully in the economic progress and development intheir country.2 1995 Coe Framework Convention for the Protection of National Minorities:Article 15:The Parties shall create the conditions necessary for the effectiveparticipation of persons belonging to national minorities in cultural, socialand economic life and in public affairs, in particular those affecting them.3 1990 CSCE Copenhagen Document, paragraph 35: The participating States willrespect the right of persons belonging to national minorities to effectiveparticipation in public affairs, including participation in the affairs relatingto the protection and promotion of the identity of such minorities.The participating States note the efforts undertaken to protect and createconditions for the promotion of the ethnic, cultural, linguistic and religiousidentity of certain national minorities by establishing, as one of the possiblemeans to achieve these aims, appropriate local or autonomous administrationscorresponding to the specific historical and territorial circumstances of suchminorities and in accordance with the policies of the State concerned.

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elaborated in the 1999 Lund Recommendations on the Effective

Participation of National Minorities in Public Life and the 2001

Warsaw Guidelines to Assist National Minority Participation in the

Electoral Process. This Copenhagen Document and statements of

principle by the Council of Europe have been used by the OSCE High

Commissioner for Minorities, created in 1992, and other mediating

bodies as a basis for compromise between contending forces, and

have thus influenced practice, in which participatory rights,

including the right to autonomy, have been a key issue. Finally,

the European Community has also used conformity with the

Copenhagen Document as a precondition for the recognition of new

states in Europe and the accession of new Member States.

As Article 27 of the 1966 International Covenant of Civil and

Political Rights (hereinafter CCPR) is still the main universal

provision of legally-binding effect offering an all-round

protection of minorities4, this article will examine the extent to

which the shift in the 1990s towards a greater focus on the

effective participation of minorities in cultural, religious,

4 A. Spiliopoulou Åkermark, Justifications of Minority Protection in International Law (Kluwer LawInternational, The Hague, 1997) p. 131.

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social, economic and public life5 has had an impact on the doctrine

of the Human Rights Committee (hereinafter HRC).

1.1. Two Developments

There are two remarkable developments in the HRC’s views on

communications, which have certainly an impact on the extent of

minority participatory rights. Nevertheless, one cannot talk yet

of established developments. The first is that the HRC mentions in

two views on communications, J.G.A. Diergaardt et al. v. Namibia6 and Mahuika

et al. v. New Zealand,7 that the right of self-determination under5 Most cases deal with the effective participation of minorities in publicaffairs, with the exception of Ilmari Länsman et al. v. Finland and Mahuika et al. v. NewZealand, which deal with the participation of indigenous people in the decision-making processes regarding (culturally significant) economic activities. Onereason is the overall tendency in international minority protection mechanismsto neglect the effective participation of minorities in social, economic andcultural life and to focus on the effective participation of minorities inpublic affairs, especially in political life. See for example the opinions ofthe Advisory Committee of the Coe Framework Convention for the Protection ofNational Minorities (A. Verstichel, ‘Elaborating a Catalogue of Best Practicesof Effective Participation of National Minorities’, 2 European Yearbook of MinorityIssues (2002/3) pp. 191-194), the documents of the UN Working Group on Minoritiesand the activities of the OSCE High Commissioner on National Minorities (para.35of the Copenhagen Document only mentions effective participation of minoritiesin public affairs). A second reason is that the ICCPR only provides for civiland political rights. However, the HRC can also deal with socio-economic andcultural matters through Article 26 - the general non-discrimination article -on the basis of established HRC jurisprudence (e.g., Zwaan-De Vries v. Netherlands, 9April 1987, HRC, no. 182/1984, CCPR/C/29/D/182/1984). An example of a relevantcase is Mümtaz Karakurt v. Austria (29 April 2002, HRC, no. 965/2000,CCPR/C/74/D/965/2000) in which a violation of Article 26 was found. A Turkishemployee could not be elected to a work-council of a private company in Austria.The distinction on the basis of nationality (Austrian/EEA nationals and othernationals) was found not to be reasonable. The case is not discussed in thisarticle, as the inclusion of the so-called “new minorities” in the definition ofminorities is still controversial in international law. However, the evolvingpoint of view in international organisations is to drop the citizenshiprequirement for the enjoyment of rights by minorities and to substitute it byother criteria (e.g. geographic concentration of minorities). Until Protocol 12of the ECHR has entered into force, Article 26 ICCPR offers added value comparedto the ECHR.6 J.G.A. Diergaardt et al. v. Namibia, 25 July 2000, HRC, no. 760/1997,CCPR/C/69/D/760/1997, para. 10.3.7 Mahuika et al. v. New Zealand, 27 October 2000, HRC, no. 547/1993,CCPR/C/70/D/547/1993, para. 9.2.

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Article 1 affects the interpretation of Articles 25, 26 and 27

CCPR. The established case law of the HRC and General Comment

23(50) on Article 27 provide that Article 1 does not fall under

the monitoring competence of the Human Rights Committee, as it

confers a right to “peoples” and not to individuals.8 The

individual petition right, as foreseen under the Optional Protocol

to the CCPR, does therefore not allow communications based on this

article to be submitted. The HRC still considers that it does not

have the competence under the Optional Protocol to consider a

communication alleging a violation of the right to self-

determination protected in Article 1 CCPR, but whereas before it

refused to interpret Article 1 CCPR, it can now take the latter

into account to interpret Articles 25, 26 and 27 CCPR. However, in

the two mentioned views on communications, the HRC did not apply

this new principle in its reasoning. It did this only for the

first time in Gillot v. France, in which it interpreted Article 25 CCPR

in the light of Article 1 CCPR.9

A second development, important for minorities and their

participatory rights, can be seen in a concurring opinion

regarding Article 25 expressed by HRC member Martin Scheinin.10

According to him, the majority of the members of the HRC placed

unnecessary emphasis on the individual nature of the participatory

rights under Article 25. It is not sufficient under Article 25 to

afford individual members of minorities and, in particular,

indigenous peoples, the individual right to vote in general

8 See Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada, 26 March 1990, HRC, no.167/1984, CCPR/C/38/D/167/1984, and General Comment 23(50) on Article 27, para.3.1.9 Gillot v. France, 15 July 2002, HRC, no. 932/2000, CCPR/C/75/D/932/2000, paras.13.4 and 13.16.10 J.G.A. Diergaardt et al. v. Namibia, supra note 6, Concurring Opinion.

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elections. Some forms of local, regional or cultural autonomy may

be called for in order to comply with the requirement of effective

rights of participation. It will be interesting to see whether, in

the future, the opinion of this member of the HRC will be followed

by more members.

1.2. Articles 25 and 27 CCPR

This article comments on these two developments and includes them

in an analysis of the relevant communications regarding

minorities, in order to determine whether any conclusions can be

derived on the protection by the CCPR of their participatory

rights. Articles 25 and 27 CCPR are the two main provisions on

which the analysis is based. The first article comprises the right

of every citizen to take part in the conduct of public affairs, to

vote and to be elected, and to have access to public service. The

second is the minority rights provision of the covenant.

Article 25Every citizen shall have the right and the opportunity, without any of thedistinctions mentioned in Article 2 and without unreasonable restrictions:a. to take part in the conduct of public affairs, directly orthrough freely chosen representatives;b. to vote and to be elected at genuine periodic elections which shall

be by universal and equal suffrage and shall be held by secretballot, guaranteeing the free expression of the will of theelectors;

c. to have access, on general terms of equality, to public servicein his country

Article 27In those States in which ethnic, religious or linguistic minorities exist,persons belonging to such minorities shall not be denied the right, incommunity with the other members of their group, to enjoy their ownculture, to profess and practise their own religion, or to use their ownlanguage.

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Article 25 provides for individual rights. It includes a

reference to the non-discrimination principle in Article 2. The

generally accepted11 two pillars of a ‘full-blown’ system of

minority protection are the prohibition of discrimination, on the

one hand, and ‘special measures’ designed to protect and promote

the separate identity of the minority groups, on the other.12 As

the second pillar is not explicitly included in the article,13 one

should turn to Article 27 to verify whether there is a case for

special measures to ensure the effective political participation

of minorities.

The wording of Article 27 is formulated in an extremely

cautious, vague manner.14 Neither a grammatical nor a logico-

systematic interpretation leaves room at first sight for a right

to fair and effective political participation of minorities.

Moreover, in the travaux préparatoires nothing was mentioned about the

effective representation of minorities in decision-making. Only in

the proposal of the Secretariat, was mention made of the use of

the minority language in the public assembly, which was later left

out of the final wording of the article.15

11 See e.g., K. Henrard, Devising an Adequate System of Minority Protection. Individual Human Rights,Minority Rights and the Right to Self-Determination (Kluwer Law International, The Hague,2000) p. 8.12 The double track of minority protection was expounded first by the PermanentCourt of International Justice in its Advisory Opinion regarding MinoritySchools in Albania in 1935. This double track is also taken up by the UnitedNations, already during the first session (1947) of the UN Sub-Commission.13 Neither it was in the travaux préparatoires, nor in the 1996 General Comment 57 onArticle 25 CCPR (only a small reference to minority languages in para. 12:“Information and materials about voting should be available in minoritylanguages.”).14 See e.g., Ch. Tomuschat, ‘Protection of Minorities under Article 27 of theInternational Covenant on Civil and Political Rights’, in Bernhardt, R. et al.(eds), Völkerrecht als Rechtsordnung: Internationale Gerichtsbarkeit - Menschenrechte - Festschrift fürHermann Mosler (Springer, Berlin, 1983) pp. 949-979.15 The proposal E/CN.4/21, Annex A (Secretariat) of Article 46 (now 27):

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However, when one looks at the application of the article in

the comments of the Human Rights Committee on country reports16 and

its views on communications, combined with General Comment 23 (50)

on Article 27, one sees that participatory rights are addressed.

In General Comment 23(50), there is one paragraph, which

mentions the effective participation of minorities:

“7. With regard to the exercise of the cultural rights protected under

article 27, the Committee observes that culture manifests itself in many

“In States inhabited by a substantial number of persons of a race,language or religion other than those of the majority of the population,persons belonging to such ethnic, linguistic or religious minorities shallhave the right to establish and maintain, out of an equitable proportionof any public funds available for the purpose, their schools and culturaland religious institutions and to use their own language before the courtsand other authorities and organs of the state and in the press and inpublic assembly.”

16 There will not be elaborated upon this in this article, as the importance forthe legal interpretation of Article 27 CCPR is marginal. Surely if nations donot object and, moreover, comply with the reporting requests, over time theCommittee’s interpretation will be accepted as customary interpretation of thearticle. Some examples can be given. In 1992 the HRC asked the delegation ofPeru what measures had been taken to ensure “effective participation by minoritygroups in the political process” and whether there was any representation inCongress. (A/47/40 (1992), para. 322). In 1993, the Croatian delegation reportedthat under the Law on Election to the Croatian Parliament a national minoritycomprising more than 8 percent of the population of the Republic had to beproportionally represented in parliamentary, governmental and judicial bodies.In addition special autonomous status had been granted to “national and ethniccommunities in those districts of Croatia where their members represented over50 percent of the population”. (A/48/40 (1993), para. 337) The Committeerecognized the efforts made by the Croatian government but expressed at the sametime its concern about the harassment of ethnic Serbs and also regarding thepreamble of the Croatian Constitution, where it is stated that Croatia is “thenational state of the Croat nation and a state of members of other nations andminorities”. (A/48/40 (1993), paras. 357 and 360) In 2001, the Committeementions again its concern with the legal framework and recommends that thisshould more full secure and articulate “the rights of members of ethnic,religious and linguistic minorities in national, regional and localrepresentative and executive bodies, as well as their rights in social, culturaland economic fields of public and private life (...) as the starting point toenhance the practical enjoyment by members of minorities of their rights underthe Covenant”. (A/56/40 (Vol.II) (2001), para. 22)

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forms, including a particular way of life 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. The 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.” (Italics

added)

Paragraph 7 is a paragraph about cultural rights. The

enjoyment of these rights, as mentioned in the last sentence of

the paragraph, “may” require measures to ensure the effective

participation of members of minority communities. The effective

participation of minorities is thus only mentioned in the context

of cultural rights (neither language rights nor religious rights)

and only as a possibility to ensure the enjoyment of cultural

rights, not as a necessary requirement and thus not as a right.

However, the formulation of the clause “effective

participation ... in decisions which affect them” points at the

importance of minorities having a say in matters, which affect

them. These matters can be cultural matters, as in this context,

but can also be others as well. If participation can be an

important means of ensuring the enjoyment of cultural rights, the

argument could be used in an analogous way for other rights.

However, this is not explicitly mentioned in the General Comment.17

17 The interpretation by the HRC that a particular way of life associated withthe use of land resources, can be protected under Article 27 CCPR as anessential part of the enjoyment of an ethnic group’s culture, goes back to thecase Kitok v. Sweden, 27 July 1988, HRC, no. 197/1985, CCPR/C/33/D/197/1985. Itappears to be an extension of the scope of this article (Article 27 seeminglylacking an economic dimension). However, according to Henrard, supra note 11, p.161, this reading of Article 27 CCPR by the members of the HRC can also berelated to the right to identity of minorities enshrined in Article 27 CCPR. Abroad reading of the explicit rights in the article can, according to her, besaid to be in line with the (broader) ratio legis of the article. Analogously, acertain political dimension of the right to identity of minorities could beincluded in Article 27 CCPR’s sphere of application. This is, according to me,an interpretation on the edge of stretching the argument too far.

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Few of the communications based on Article 27 CCPR deal with the

effective participation of minorities, and none of them directly.18

Direct claims by minorities to more effective participation use

Article 25 CCPR, without linking it to Article 27. In my opinion,

combining Articles 25 and 27 (and eventually Article 119) in claims

to more effective participation will lead to more favourable

results, in virtue of the value, which Article 27 adds to Article

25.

2. Views on Communications

2.1. Miqmaq Tribal Society v. Canada

One of the most relevant communications alleging a violation of

Article 25 CCPR was submitted by the Miqmaq tribal society against

Canada.20 The reason why the authors of this communication did not

allege a breach of Article 27 was that they conceived themselves

as a “people” and not a minority. This is revealed by a previous

18 There has also been a communication based on Article 26 CCPR, to denounce aconstitutional arrangement to ensure that all minorities are adequatelyrepresented in the legislature: Gobin v. Mauritius. The system foresaw eightadditional seats for candidates who were not directly elected, but belonged to“the appropriate community” (Hindu, Muslim, Sino-Mauritian or general) so as toensure an adequate representation of all ethnic and religious communities. Theauthor, who had more votes than a candidate from the same constituency whoreceived the seat because belonged to a community which was not yet adequatelyrepresented, claimed that the constitutional provision was discriminatory,because the criteria on which the decision was taken were based on race andreligion. The communication was found inadmissible, because submitted five yearsafter the elections without reasonable explanation of this delay. Gobin v.Mauritius, 20 August 2001, HRC, Admissibility Decision, no. 787/1997,CCPR/C/72/D/787/1997.19 The future will show whether one of the two evolutions mentioned earlier inthe article, namely the importance of Article 1 for the interpretation ofArticles 25, 26 and 27 CCPR, will become established case law.20 Marshall et al. ( the Miqmaq tribal society) v. Canada, 4 November 1991, HRC, no. 205/1986,CCPR/C/43/D/205/1986.

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communication, A.D. v. Canada.21 However, the majority of

communications based on Article 27 CCPR and decided on the merits

are submitted by members of indigenous people (see e.g., Lovelace v.

Canada, Kitok v. Sweden and Bernard Ominayak, Chief of the Lubicon Lake Band v.

Canada).22 This is often a strategic decision for these indigenous

people, because, as mentioned before, in the established case law

of the UN Human Rights Committee, Article 1 of the CCPR (right to

self-determination) is not an article on which a communication can

be based. Only the violations of rights belonging to individuals

(not peoples), such as the rights under Article 27 CCPR, can be

brought before the CCPR under its First Optional Protocol.23

The Miqmaq tribal society claimed a violation of Article

25(a) CCPR, because it was not invited to participate in a

constitutional conference on the rights of Canadian Indian

communities. However, the HRC found that there had been no

violation of Article 25. In my opinion, if the violation of

Article 25 had been linked to Article 27 in the communication, the

HRC would have decided differently and an opportunity would have

been given to shed clearer light on the relation between minority

protection and participation of minorities in decisions, which

affect them.

21 A.D. v. Canada, 29 July 1984, HRC, no. 78/1980, A/39/49 (1984), paras. 3 and 7.3.The communication was found inadmissible, because the author had not proven thathe was properly authorized to act as a representative of the Miqmaq tribe andhad also failed to prove that he was personally a victim of the allegedviolation.22 Lovelace v. Canada, 30 July 1981, HRC, no.24/1977, A/36/40 (1981) and BernardOminayak, Chief of the Lubicon Lake Band v. Canada, supra note 8.23 See Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada, supra note 8, and GeneralComment 23(50) on Article 27, para. 3.1. (At issue was the leasing of the Band'straditional territory without its consent.) The Declaration on the Rights ofIndigenous People is still at a drafting stage, while the Declaration on theRights of Persons Belonging to National or Ethnic, Religious and LinguisticMinorities was adopted in 1992.

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The HRC decided that, in the light of the composition, nature

and scope of activities of constitutional conferences in Canada,

these conferences constitute a conduct of public affairs.

Furthermore, it stated that Article 25(a) of the Covenant could

not mean that every citizen can determine either to take part

directly in the conducting of public affairs or to leave this to

freely chosen representatives. It is instead the responsibility of

the legal and constitutional system of the State party to provide

for the modalities of such participation. The HRC concluded,

however, that participation and representation at the

constitutional conferences had not been subject to unreasonable

restrictions in this particular case:

“Invariably, the conduct of public affairs affects the interests of large segments of the population or

even the population as a whole, while in other instances it affects more directly the interests of more

specific groups of society. Although prior consultations, such as public hearings or consultations

with the more interested groups may often be envisaged by law or have evolved as a public policy in

the conduct of public affairs, Article 25(a) of the Covenant cannot be understood as meaning that

any directly affected group, large or small, has the unconditional right to choose the modalities of

participation in the conduct of public affairs. That, in fact, would be an extrapolation of the right to

direct participation by the citizens, far beyond the scope of Article 25(a).”24

This decision has been the object of considerable criticism by

academia,25 including an article by a former member of the HRC and

of the International Law Commission, Prof. Bernhard Graefrath.26 At

the 1992 session of the Commission on Human Rights, the Four

Directions Council, a non-governmental organization with

consultative status, submitted a pertinent criticism under the

24 Miqmaq tribal society v. Canada, supra note 20, para. 5.5.25 See e.g., G. Alfredsson and A. de Zayas, ‘Minority Rights: Protection by theUnited Nations’, 14 Human Rights Law Journal (1993) pp. 1-9.26 B. Graefrath, ‘Miqmaq-Entscheidung des Menschenrechtenausschusses’, 4 Neue Justiz(1994) pp. 151-152.

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title “The right to participate in public affairs – a confusing

Human Rights Committee Decision on Article 25” (UN Doc.

E/CN.4/1992/NGO/7). Russel Barsh, who was the legal counsel for the

Miqmaq tribal society, stated that the Mikmaq did not demand an

"unconditional" right to choose their own means of participation

in Canada's constitutional negotiations; they merely argued that

Canadian officials could not discriminate against Mikmaq by

seating only a selected group of indigenous nations at the

conference table. In his view, the discrimination aspect of the

case -- similar to an Equal Protection claim under U.S. law --

appears to have been totally ignored by the Committee.27

2.2. Ignatane v. Latvia

Another communication based on Article 25 CCPR is Ignatane v. Latvia.28

Ms. Antonina Ignatane, a Latvian citizen belonging to the Russian-

speaking minority, had been prevented from standing for the local

elections in the city of Riga in 1997, having been struck off the

list of candidates on the basis of insufficient proficiency in the

official language. The HRC considered this to be a violation of

Article 25, in conjunction with Article 2 of the Covenant.29

Despite having been awarded a language aptitude certificate

issued by a board of Latvian language specialists for an unlimited

period in 1993, stating that she had level three proficiency (the

highest level, which was required to stand for local elections),

she was struck off the list of candidates for the municipal

elections by the Election Commission, after a single inspector had

27 Barsh, R.L., ‘Indigenous People in the 1990s: From Object to Subject ofInternational Law?’, 7 Harvard Human Rights Journal (1994) p. 80, footnote 218.28 Ignatane v. Latvia, 25 July 2001, HRC, no. 884/1999, CCPR/C/72/D/884/1999.29 Ibid., para. 7.4.

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tested her Latvian language skills a few days before the elections

and deemed these to be insufficient. According to the HRC, the

annulment of the author’s candidacy pursuant to a review that was

not based on objective criteria and which the state party had not

demonstrated to be procedurally correct, is not compatible with

the state party’s obligations under Article 25 CCPR.30

Here we see an example of a communication alleging a

violation of Article 25, without any links to Article 27,31 and

with a favourable outcome. However, the ground of the holding32 is

not clear and is left vague. The HRC both refers to the procedural

incorrectness (para. 7.4) – which by itself would be a small

procedural ground to base the holding on – and to the principle of

non-discrimination on the basis of language (para. 7.3), which is

included in Article 25 CCPR through its reference to Article 2

CCPR. It is as if the HRC could not agree internally on a clear

statement of non-discrimination on the basis of language with

regard to the rights enshrined in Article 25, out of fear of its

possible impact.33

30 Ibid., para. 7.2.31 The applicant did not present herself as a person belonging to a minority. Ifshe had done so, the HRC would have had an opportunity to express itself onparticipatory rights of minorities.32 The holding states: “The Committee concludes that Mrs. Ignatane has suffered specific injury inbeing prevented from standing for the local elections in the city of Riga in 1997, because of having beenstruck off the list of candidates on the basis of insufficient proficiency in the official language. The HumanRights Committee considers that the author is a victim of a violation of article 25, in conjunction with article2 of the Covenant” (Ignatane v. Latvia, supra note 28, para. 7.5).33 This decision (together with the pressure exercised by the OSCE organs) seemsto have had an impact, as the Latvian parliament adopted two bills by which therequirement of Latvian language proficiency has been abolished for personsstanding for elections at the national and municipal levels. (See statement on10 May 2002 by the OSCE High Commissioner on National Minorities, Rolf Ekéus, inwhich he welcomes the adoption of the two bills,www.osce.org/news/generate.php3?news_id=2449).

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A strikingly similar case was brought to the European Court

of Human Rights (hereinafter ECtHR). In Podkolzina v. Latvia,34 the

applicant, a Russian-speaking Latvian national, was also struck

off the list of candidates for the Parliamentary elections, after

a single examiner had tested her Latvian skills at the applicants’

place of work and found that she did not have an adequate command

of the official language. Mrs. Podkolzina also had a language

certificate stating that she had level three proficiency.

The ECtHR found a violation of Article 3, Protocol I ECHR.

According to the Court, requiring a candidate for election to the

national parliament to have a sufficient knowledge of the official

language pursues a legitimate aim.35 However, the decision to

strike the applicant off the list of candidates was found not to

be proportionate to that aim. The procedure applied to the

applicant was found to be incompatible with the requirements of

procedural fairness and legal certainty.36 The ECtHR did not

consider it necessary to examine the complaint under Article 14,

as, according to the Court, the complaint under this article was

essentially the same as under Article 3, Protocol I.37

In this case, the judgment is based on purely procedural

grounds. The Court did not want to examine whether there was a

violation of the non-discrimination principle of Article 14. First

of all, no discrimination on the basis of language was found,

contrary to the HRC views in its para. 7.3 of Ignatane v. Latvia. The

34 Podkolzina v. Latvia, 9 April 2002, ECHR, no. 46726/99,<hudoc.echr.coe.int/hudoc/ViewRoot.asp?Item=0&Action=Html&X=810152654&Notice=0&Noticemode=&RelatedMode=0> .35 Ibid., para. 34.36 Ibid., para. 36.37 Ibid., para. 42.

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ECtHR even states that a sufficient knowledge of the official

language pursues a legitimate aim. Second, no discrimination on

the basis of association with a national minority was found, which

is one of the grounds of discrimination mentioned in Article 14

ECHR. To the contrary of the applicant in Ignatane v. Latvia, the

applicant in this case presented herself as a person belonging to

a minority. Mrs. Podkolzina alleged that a discriminatory practice

vis-à-vis members of national minorities was to be feared.38 This

is a complaint, which goes beyond a purely procedural complaint,

unlike the statement by the Court that the complaint was

essentially the same as under Article 3, Protocol I. The ECtHR –

as always reluctant to consider a violation of Article 14, when a

violation of another article has already been established39 – did

not take the opportunity to take a stance on electoral rights of

minorities.

2.3. J.G.A. Diergaardt et al. v. Namibia

Another communication, which, amongst others, alleged a violation

of Article 25 CCPR, is J.G.A. Diergaardt et al. v. Namibia.40 The authors of

the communication are members of the Rehoboth Baster Community,

descendants of the indigenous Khoi and Afrikaans settlers who

originally lived in the Cape, but who moved to their present

38 Ibid., para. 41.39 A recent exception is Nachova and others v. Bulgaria, 26 February 2004, ECHR, nos.43577/98 and 43579/98, <hudoc.echr.coe.int/hudoc/ViewRoot.asp?Item=0&Action=Html&X=810153329&Notice=0&Noticemode=&RelatedMode=0>. The ECtHRfound a violation of Articles 2 (right to life) and 14 (non-discrimination) inthis case about two Roma, which were shot dead by the police after havingescaped from detention.40 J.G.A. Diergaardt et al. v. Namibia, supra note 6. The authors also alleged a violation ofArticle 27, on the ground that the confiscation by the state of all propertycollectively owned by the community, robbed the community of the basis of itseconomic livelihood, which in turn was the basis of its cultural, social andethnic identity. According to the HRC, this did not constitute a violation ofArticle 27. I will not go into this, as it is not the topic of this article.

16

territory in 1872. They developed their own society, culture,

language and economy, with which they largely sustained their own

institutions, such as schools and community centres. In 1976, they

were granted “self-government in accordance with the Paternal Law

of 1872” by Act No. 56, passed by the South African parliament. In

1989, under extreme political pressure, the Rehoboth Basters

accepted the temporary transfer of their legislative and executive

powers into the person of the Administrator-General of South West

Africa, so as to comply with UN Security Council resolution nr.435

(1978), “until the date immediately before the date upon which the

territory becomes independent”. On 21 March 1990, Namibia became

independent, and the constitution came into force. By enactment of

the law on regional government of 1996, the 124-year-long

existence of Rehoboth as a continuously organized territory was

brought to an end.

The authors of the communication claim that Article 25 CCPR

is violated, because the territory is now divided into two

regions, thus preventing the Basters from effectively

participating in public life on a regional basis, since they are a

minority in both new districts.41 According to the HRC, the facts

of the case do not show a violation of Article 25 CCPR. Although

the influence of the Baster community, as a community, on public

life might have been affected by the merging of their region with

other regions when Namibia became sovereign, the claim that this

had an adverse effect on the enjoyment by individual members of

the community of the right to take part in the conduct of public

affairs or to have access to public service, on general terms of

equality with other citizens of their country, has not been

41 J.G.A. Diergaardt et al. v. Namibia, supra note 6, para. 3.2.17

substantiated according to the HRC. Had the applicants defended

their case in a clearer way, they might have had a chance of

recognition of their claim in some way. However, the legacy of

apartheid with privileges for the ruling white minority makes this

case a delicate one.

Thus the HRC stresses the fact that the rights enshrined in

Article 25 CCPR are individual rights.42 One of the members of the

Human Rights Committee, Martin Scheinin, disagrees on this point

with the majority of the Committee. In a concurring opinion, he

writes that the individual nature of rights of participation under

Article 25 was unnecessarily emphasized. In his view, there are

situations where Article 25 calls for special arrangements for the

rights of participation to be enjoyed by members of minorities

and, in particular, indigenous peoples. When such a situation

arises, it is in his view not sufficient under Article 25 to give

individual members of such communities the individual right to

vote in general elections. Some forms of local, regional or

cultural autonomy may be called for in order to comply with the

requirement of effective rights of participation. This is

especially interesting. This is a reading of Article 25 from the

point of view of Article 27. Martin Scheinin himself refers to

Article 1 CCPR (self-determination). The HRC, in the majority

opinion, had mentioned in paragraph 10.3 that the right of self-

42 Ibid., para. 10.8. This resounds M. Brems, Die politische Integration ethnischer Minderheiten(Peter Lang, Frankfurt am Main, 1995) p. 55:

“Bis auf das Recht auf Selbstbestimmung gem. Art.1 IPBPR enthält derMenschenrechtpakt ausschlieβlich Individualrechte. Das Recht aufpolitischen Partizipation einer Volksgruppe stellt jedoch einKollektivrecht dar. Somit ergeben sich aus den Art.27 und 25 IPBRP keinevölkerrechtlichen Pflichten für die Vertragsstaaten, den Minderheiten alsGruppe eine politische Partizipation in irgendeiner Form zu verschaffen.”

18

determination under Article 1 affects the interpretation of

Article 25 (and 26 and 27).

The authors of the communication had also claimed that they

were the victims of a violation of Article 1 CCPR by the

Government of Namibia. They claimed that “their right to self-

determination inside the republic of Namibia (so-called internal

self-determination) has been violated, since they are not allowed

to pursue their economic, social and cultural development, nor are

they allowed to freely dispose of their community’s national

wealth and resources.”43 As could be expected on the basis of their

case law and General Comment 23(50) on Article 27, the HRC

recalled that the question whether the community to which the

authors belong is a “people” is not an issue for the Committee to

address under the Optional Protocol. However, as already

mentioned, the HRC went on to say that the provision of Article 1

may be relevant in the interpretation of other rights protected by

the Covenant, in particular Articles 25, 26 and 27. This could

open a new way for minorities to make use of the concept “self-

determination”, especially in its internal dimension.44

43 J.G.A. Diergaardt et al. v. Namibia, supra note 6, para. 3.2.44 On the internal dimension of the right to self-determination (as opposed toits external dimension, namely secession), see amongst others Brems, supra note42, H. Hannum, Autonomy, Sovereignty and Self-determination : the Accommodationof Conflicting Rights (Philadelphia, University of Pennsylvania, 1996), Henrard,supra note 11, P. Thornberry, ‘The Democratic or Internal Aspect of the Right toSelf-Determination with some Remarks on Federalism’, in Ch. Tomuschat (ed.),Modern Law of Self-Determination (Dordrecht, Martinus Nijhoff, 1993), pp. 101-138 and A. Rosas, ‘Internal Self-Determination’, in Ch. Tomuschat (ed.), ModernLaw of Self-Determination (Dordrecht, Martinus Nijhoff, 1993), pp. 225-251. Seealso CERD, General Recommendation XXI on the right to self-determination, (Forty-eight session,1996), para. 4:

“The right to self-determination of peoples has an internal aspect, thatis to say, the rights of all peoples to pursue freely their economic,social and cultural development without outside interference. In thatrespect there exists a link with the right of every citizen to take partin the conduct of public affairs at any level, as referred to in article 5

19

2.4. Gillot v. France

The applicants in Gillot v. France45 are French nationals, resident in

New Caledonia, who claim to be victims of violations by France of

Articles 2 (1), 12 (1), 25 and 26 CCPR. They did not fulfil the

requirements to vote in the referendum on the approval of the so-

called Noumea Accord. The Accord ,which forms part of a process of

self-determination, established the framework for the

institutional development of New Caledonia over the next 20 years.

New Caledonia is a former colony of France and an overseas

territory under the 1946 French Constitution. The Accord also

recognizes New Caledonian citizenship and provides that "New

Caledonian citizens" are to take a decision, within a 15- to 20-

year time frame, on accession to independence or autonomy.

The HRC had to determine whether the restrictions imposed on

the electorate for the purposes of the local referendums of 8

November 1998 and in 2014 or thereafter – only the persons

“concerned” by the future of New Caledonia and not the whole of

the national population were allowed to vote – constitute a

violation of Articles 25 and 26 CCPR. In determining whether the

restrictions were discriminatory, the HRC verified whether the

criteria were objective and reasonable, serving a legitimate

purpose, and whether the principle of proportionality was taken

into account. The HRC concluded that no violation had occurred.

(c) of the International Convention on the Elimination of All Forms ofRacial Discrimination. In consequence, Governments are to represent thewhole population without distinction as to race, colour, descent ornational or ethnic origin.”

45 Gillot v. France, supra note 9.20

In examining whether the differentiation resulting from the

criteria was reasonable and whether the purpose sought was lawful

vis-à-vis the CCPR, the HRC referred to Article 1 CCPR to

interpret Article 25 CCPR. This is the first communication in

which the HRC applied the principle that Article 1 CCPR could

influence the interpretation of Articles 25, 26 and 27 CCPR:

“The Committee recalls that, in the present case, article 25 of the

Covenant must be considered in conjunction with article 1. It therefore

considers that the criteria established are reasonable to the extent that

they are applied strictly and solely to ballots held in the framework of a

self-determination process. Such criteria, therefore, can be justified

only in relation to article 1 of the Covenant, which the State party does.

Without expressing a view on the definition of the concept of "peoples" as

referred to in article 1, the Committee considers that, in the present

case, it would not be unreasonable to limit participation in local

referendums to persons "concerned" by the future of New Caledonia who have

proven, sufficiently strong ties to that territory. The Committee notes,

in particular, the conclusions of the Senior Advocate-General of the Court

of Cassation, to the effect that in every self-determination process

limitations of the electorate are legitimized by the need to ensure a

sufficient definition of identity.

The Committee also takes into consideration the fact that the Noumea

Accord and the Organic Law of 19 March 1999 recognize a New Caledonian

citizenship (not excluding French citizenship but linked to it),

reflecting the common destiny chosen and providing the basis for the

restrictions on the electorate, in particular for the purpose of the final

referendum.”46

46 Ibid., para. 13.16.21

One should admit that the right to self-determination of

Article 1 CCPR is applied here in its traditional context of

decolonisation. Yet, the fact that the HRC invokes Article 1 in

its interpretation of Article 25 is novel.

2.5. Ilmari Länsman et al. v. Finland / Mahuika et al. v. New Zealand

Finally, some communications based on Article 27 deal in an

indirect and instrumental way with the effective participation of

minorities in decisions, which affect them. Two communications in

particular deal with the culturally significant economic

activities of indigenous groups. The first communication is Ilmari

Länsman et al. v. Finland.47 The authors, reindeer breeders of Sami

origin, claimed that Finland violated Article 27 since it allowed

the quarrying of stone in the area of mount Etelä-Riutusvaara

which is used by them for reindeer breeding. In support of their

claim that reindeer herding is an essential component of the Sami

culture and that it therefore also constitutes a part of the

concept “culture” in Article 27, they referred to the Lovelace and

Lubicon Lake Band cases. The fact that the authors of the

communication were consulted during the proceedings leading to the

delivery of the quarrying permit was one of the reasons for the

acceptability of the measures.48 The HRC recalled paragraph 7 of

its General Comment on Article 27, according to which minorities

or indigenous groups have a right to the protection of traditional

activities such as hunting, fishing or, as in the instant case,

reindeer husbandry, and that measures must be taken "to ensure the

47 Ilmari Länsman et al. v. Finland, 26 October 1994, HRC, no. 511/1992,CCPR/C/52/D/511/1992.48 Ibid., para. 9.6.

22

effective participation of members of minority communities in

decisions which affect them".49

The second communication is the recent Mahuika et al. v. New

Zealand.50 Here the authors belong to the Apirana Mahuika and Maori

people. They claimed a violation of Article 27 in conjunction with

Article 1,51 because the Treaty of Waitangi (Fisheries Claims)

Settlement Act of 1992 confiscates their fishing resources, denies

them their right to freely determine their political status and

interferes with their right to freely pursue their economic,

social and cultural development. This 1992 Settlement Act

implemented a Deed of Settlement between Maori negotiators and the

Government concerning fishing quota, the status of commercial and

non-commercial Maori fishing rights and pending law suits.

According to the HRC, there was no breach of any of the articles

of the Covenant. One of the crucial arguments in the HRC’s

reasoning was the fact that the state party had undertaken a

complicated process of consultation in order to secure broad Maori

support to a nation-wide settlement and regulation of fishing

activities. It referred to I. Länsman et al. v. Finland, while emphasizing

that:

“the acceptability of measures that affect or interfere with the

culturally significant economic activities of a minority depends on

whether the members of the minority in question have had the opportunity

to participate in the decision-making process in relation to these

49 Ibid., para. 9.5. See also Jouni E. Länsman et al. v. Finland, 22 November 1996, HRC, no.671/1995, CCPR/C/58/D/617/1995, para. 10.4.50 Mahuika et al. v. New Zealand, supra note 7.51 Moreover, they claimed a violation of Article 14(1) CCPR, because of thestatutory discontinuation of the pending law suits, based on the settlement.

23

measures and whether they will continue to benefit from their traditional

economy.”52

In the same paragraph, the HRC also recalled its general

comment on Article 27, according to which, especially in the case

of indigenous people, the enjoyment of the right to one’s own

culture may require positive legal measures of protection by a

state party and measures to ensure the effective participation of

members of minority communities in decisions which affect them. In

combination with the other argument that Article 27 not only

protects the traditional means of livelihood of minorities, but

also allows for the adaptation of those means to a modern way of

life and ensuing technology,53 it seems that the HRC is going along

the path of, on the one hand, promoting the effective involvement

of minorities in decisions that affect them, and, on the other

hand, referring to this involvement to justify limits to the

rights of (some) members of the minority to enjoy their own

culture. The advantage of co-deciding their own faith leads to an

eventual higher vulnerability for decisions which limit their

rights.

The importance of participating in decision-making processes

in matters, which affect them, is clear and is confirmed in

several international instruments of the 1990’s.54 However, a

52 Mahuika et al. v. New Zealand, supra note 7, para. 9.5. In a later communication, Ääreläand Näkkäläjärvi v. Finland, the State Party, Finland, used this argument, namely thatthe affected persons, the Sami reindeer herders, were consulted in thedevelopment of the logging plans. Accordingly, the State Party argues that theinterests of forestry and reindeer husbandry have been properly weighed.However, the HRC pays no attention to this argument. Äärelä and Näkkäläjärvi v. Finland,24 October 2001, HRC, no. 779/1997, CCPR/C/73/D/779/1997, para. 4.6.53 Confirming its views in I. Länsman et al. v. Finland, supra note 47, para. 9.3.54 See the introduction of this article: the 1990 CSCE (now OSCE) CopenhagenDocument on the Human Dimension, paragraph 35, the 1992 UN Declaration on theRights of Persons Belonging to National or Ethnic, Religious and Linguistic

24

potentially vulnerable situation for minorities could be created

if the conditions under which the negotiation process takes place

do not take into account the special minority condition. For

example, the language of the negotiations can be different from

the minority language, the minority can have a different

negotiation culture (especially indigenous people) or can be

unfamiliar with the legal framework. The HRC, when accepting

certain limits to the right of a minority to enjoy its own culture

because of the involvement of this minority in the decision-making

process, should verify to what extent the negotiation process was

fair. This fairness criterion, thus far not yet applied in the

HRC’s reasoning in the few views on communications dealing with

this issue, should become an important factor in deciding whether

limits to the right of a minority to enjoy its own culture can be

justified, given the participation by that minority in the

decision-making processes.55

However, this fear of an increased vulnerability should not be

overstated, as the HRC emphasizes in both instances that the state

Minorities, Articles 2.2, 2.3, 2.4, 2.5 and 4.5 and the 1995 Council of EuropeFramework Convention for the Protection of National Minorities in Articles 15and 16.55 In Jouni E. Länsman et al. v. Finland, supra note 49, the authors of the communication,Sami reindeer herders, challenge the State Party’s (Finland) observation thatthere was effective participation in the negotiation process. Moreover, on 16December 1995, the Sami Parliament discussed in general the experiences of Samiconsultation in relation to logging plans by the State party forest authoritiesand adopted a resolution in which it notes that “the present consultation systembetween the Central Forestry Board and reindeer management does not function ina satisfactory way ....” (Ibid., para. 7.8). In its examination of the merits,the HRC does not go into this argument and says that this aspect “does not alterthe Committee’s assessment”. “It is uncontested that the MuotkatunturiHerdsmen's Committee, to which the authors belong, was consulted in the processof drawing up the logging plans and in the consultation, the MuotkatunturiHerdsmen's Committee did not react negatively to the plans for logging”. It goeson that “[t]he Committee is not in a position to conclude, on the evidencebefore it, that the impact of logging plans would be such as to amount to adenial of the authors' rights under article 27.” (Ibid., para. 10.5)

25

party continues to be bound by Article 27.56 The HRC will still

scrutinize whether the impact of the interference is so

substantial that it effectively denies the right of minorities to

enjoy their own culture.57

Finally, as mentioned under 1.1., the HRC states in para. 9.2

that “the provisions of Article 1 [might] be relevant in the

interpretation of other rights protected by the Covenant, in

particular Article 27”. However, like in J.G.A. Diergaardt et al. v.

Namibia, the HRC did not apply this principle in its reasoning. It

did this only for the first time in Gillot v. France, in which it

interpreted Article 25 CCPR in the light of Article 1 CCPR.

3. Conclusion

To conclude, there is no explicit mentioning of a right to

effective participation and representation of minorities in the

wording of Article 27 CCPR nor in the travaux préparatoires. However,

in its approach, the Human Rights Committee shows a fairly limited

but - in my view - growing awareness of the importance of

effective participation for minorities.

The comments on country reports by the HRC show a clear

interest in the participation of minorities in public affairs.

However, one should not deduce a binding impact from these

comments on the interpretation of Article 27. General Comment

23(50) on Article 27 confines itself to cultural rights when

56 I. Länsman et al. v. Finland, supra note 47, para. 9.8. and Mahuika et al. v. New Zealand,supra note 7, para. 9.9.57 This test is also applied in Äärelä and Näkkäläjärvi v. Finland, supra note 52, para.7.5.

26

dealing with participation and a possibility of, not a right to,

more effective participation. In any case, the importance of

effective participation of members of minority communities in

decisions, which affect them, is clear from the General Comment

and one could argue for the application beyond cultural rights.

There have been some views on communications dealing directly

or indirectly with the effective participation of minorities in

decision-making processes. There has not yet been an individual

communication based directly on Article 27, claiming more

effective participation. However, in the light of the broad

reading – in line with the ratio legis of the article - by the HRC of

the rights enshrined in Article 27, for example in Kitok v. Sweden, a

future communication could base itself on Article 25, in

combination with Article 27 and/or Article 1.

The importance of this Article 1 CCPR is one of the two

recent developments in the views on communications by the HRC that

are relevant for minorities and their participatory rights. The

HRC mentions in two views on communications that the right of

self-determination under Article 1 affects the interpretation of

Articles 25, 26 and 27 CCPR. It applies this principle in a third

with regard to Article 25 CCPR. A second evolution can be seen in

an individual opinion regarding Article 25 expressed by HRC member

Martin Scheinin. According to him, the majority of the members of

the HRC emphasized unnecessarily the individual nature of the

participatory rights under Article 25. Some forms of local,

regional or cultural autonomy may be called for in order to comply

with the requirement of effective rights of participation.

27

Views on communications, which deal indirectly with the

effective participation of minorities in decision-making

processes, are allegations of a breach of Article 27 in view of

limitations on the exercise of culturally significant economic

activities (especially of indigenous groups). Limits to the

enjoyment of cultural rights were justified because of the

consultation of members of the minority in the decision-making

process. Whereas the increasing involvement of persons belonging

to a minority in decision-making processes is a positive

development, it also places them in a potentially vulnerable

position. The HRC should scrutinize the fairness of the

negotiation process, before accepting an outcome, which encroaches

on the enjoyment of the cultural rights of that minority.

28