Throughout the world, human rights have sought to level the playing field between the State and the individual. They have acted as a shield against the sword of the strong and a barrier against those who would interfere with our private lives. Human rights encourage each and every person of the world to treat one another with respect and dignity and have sought to guarantee us the freedom to do so. Though there are many interpretations as to what should constitute human rights, be they Asian or Western values, based on Eastern or Western beliefs or representing Northern or Southern interests, the simple fact remains that they all guarantee a certain quality of life for the individual. However, therein lays the problem. Since the conception of human rights (in modern Europe at least) with regard to the ideals expounded by the United Nations, the terms human rights and individual have coalesced. Some would argue that this is a result of historical circumstances or practical realities but there is also the idea that States value their sovereignty to such a high degree that the idea of any organ other than an individual citizen having a claim to rights is unthinkable.
Therefore it is understandable that the concepts of minorities and group rights prove to be so troublesome for the system of human rights. For though minorities are made up of individuals, together these individuals are transformed into a collective power. It is this power that needs definition, recognition and protection in the same way that any individual alone would. However, the achievement of this goal is a far more complicated matter than the aspiration to it. This essay will look in chapter (B) at how Europe has addressed the problem with particular reference being given in chapter (C) to The Framework Convention for the Protection of National Minorities[1] (hereafter referred to as the Framework Convention). After an understanding has been reached as to what protections are in place for the minorities of Europe and to what degree their rights have been guaranteed, focus will move in chapter (D) onto the experiences of the Roma people in this regard. The purpose of chapter (D) will be to access the practical affects that the Framework Convention has on the lives of minorities in order to judge whether the aforementioned instrument is truly the best way to develop minority rights. Chapter (E) will examine the thoughts behind the granting of autonomy as an alternative and possibly superior method of securing the protection and preservation of Europe’s minorities. Finally chapter (F) will offer some concluding remarks.
What must be remembered throughout this examination is that the cause of minorities is as valid and important as any previous cause that human rights were used to advance. However, human rights in their traditional and individualistic embodiment may not be the only or most appropriate weapon to use in the fight for the advancement of protection of minorities.
(B) PRE-FRAMEWORK CONVENTION
(1) Minority Protection
Prior to the present day protection afforded to minorities in Europe by the Framework Convention, the concept of minority rights was not clearly defined or regulated. One of the major issues to be contended with was that due to the world wars, especially World War II and the drive behind Germany’s expansion, there was a greater desire to guarantee individual rights rather than encourage the idea of a group or collective mentality. This chapter will briefly look at some of the safeguards in place in more recent times with respect to minorities but will not attempt to provide an historical account of an already well researched area.
Article 27 of the International Covenant on Civil and Political Rights[2] (hereafter referred to as the ICCPR) is the primary provision in the United Nations system for the protection of minority rights and the most important one in Europe prior to the Framework Convention that is relevant to our discussion. Before the appearance of this provision in the ICCPR, the law dealt only with individuals. Article 27 specifically provides for the specific protection of the rights of minorities and in that sense is of greater importance than the individual obsessed (though highly important) Universal Declaration of Human Rights[3] (hereafter referred to as the UDHR).[4] There has been criticism of Article 27 regarding the fact that it is the only provision found in the ICCPR that is couched in negative terms[5] which results in a cynical denial of the true realisation of the right. However the Human Rights Committee has stated that although ‘article 27 is expressed in negative terms, that article, nevertheless, does recognize the existence of a "right" and requires that it shall not be denied’[6]. In this regard the Human Rights Committee has employed the language of rights-promotion and highlighted the necessity for positive measures to be taken with respect to minorities.
Another criticism of the above ICCPR provision is that the rights guaranteed by it can only be asserted individually due to the fact that the text of Article 27 refers to ‘persons belonging’[7] to the minorities rather than the minorities themselves[8]. Once again however, the Human Rights Committee has realised that an individual member of a minority is dependant on the group to enjoy any right and therefore it suggested that ‘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 practice their religion, in community with the other members of the group’[9]. This falls squarely into line with the obvious reality that cultural traditions and relevant institutions can only be preserved and sustained by a community on a collective basis[10] and thus the minority and not just its members require rights. A fact acknowledged by some commentators, who are themselves aware of the need for minority rights, that allowing a group to hold rights rather than the individuals is somehow anti-liberal[11] can also be combated by this argument. In truth, it is conversely analogous to the relationship of a child and its parents, a relationship that is necessary if the child is to develop to its full potential. Before the Convention on the Rights of the Child[12] parents had absolute authority regarding the child’s rights and thus the child had no input into its own life just like the minority group would have no effective input into the life of its members if the individuals alone possessed the rights. Since the aforementioned convention, a child has autonomy that exists alongside the rights that its parents will still necessarily posses and a balance is created. This balance could be achieved in the realm of minority protection under Article 27, by granting rights and therefore identity to the group alongside its members.
Another common criticism associated with Article 27 is that the opening phrase refers to ‘those States in which … minorities exists’[13], a statement that could obviously encourage a number of governments to simply claim that they have no minorities[14] and thus no obligations to fulfill. However, only one nation has accepted such encouragement and made reference to that affect[15] and thus this criticism, though well founded, is in truth a moot analysis. This is especially true since the Human Rights Committee confirmed that the existence of the listed minorities in Article 27 is not dependant upon a decision of a State party[16]. The reference made to the listed minorities in the previous remark is to do with the fact that Article 27 only recognizes the existence of ethnic, religious or linguistic minorities. Though it is clear that there are many other grounds upon which minority status could be argued such as cultural, this limiting account for types of minorities is a common and unfortunately topical problem, which will be discussed later in this chapter. However it is sufficient to say for now that the opening phrase of Article 27 should not be read as giving carte blanche to governments to deny minority existence. The drafters of the ICCPR may simply have naively thought that not all countries would have minorities in the same way that the drafters of the early refugee arrangements thought they would only need to apply to certain peoples (namely Russian and Armenian refugees) and would only be for a limited time period.
The next instrument of protection worth considering is the European Convention for the Protection of Human Rights and Fundamental Freedoms[17] (hereafter referred to as the European Convention). Firstly, it must be stated that there is no directly applicable provision in the European Convention with regard to the rights of minorities[18]. Instead it provides for a prohibition on discrimination with reference to an ‘association with a national minority’[19] merely appearing amongst other grounds such as race or sex. This provision is reminiscent of how the UDHR deals with anti-discrimination[20], the text of which would have been available to the drafters of the European Convention[21]. Any similarity should not be deemed surprising as the European Convention is individualistic in nature just like the UDHR. The reference to a national minority above by the European Convention was the first time this expression was used in an International Treaty[22] and in that sense can be considered a European concept, though the European Convention did not offer any definition. This is yet another example of the lack of definition that plagues the system of minority rights protection. As with Article 27 of the ICCPR, the European Convention can be criticized to the extent that minorities are not owed rights, cannot be considered victims under the convention and thus lack any real levels of protection[23]. In fact, the ICCPR even demands more with respect to ensuring that there are measures in place to guarantee the rights to whom they are afforded[24].
Finally[25] in this analysis, attention must now turn to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities[26] (hereafter referred to as the 1992 Declaration). It is clear from just the title of this document that all previously recognized minority labels are covered. There is cause to suggest that the 1992 Declaration goes further than Article 27 in the sense that it calls for more than just the right of minorities to enjoy their culture and traditions[27]. It requires States to effectively cultivate conditions that encourage the promotion of minority identity. This sounds positive in theory but in reality the 1992 Declaration does not have the same legal status of the ICCPR and the rights of minorities must still be asserted individually which surely diminishes its standing. Even those commentators, who recognize the value of the 1992 Declaration, suggest how it is at times no more than a re-iteration of the guarantees found in Article 27[28] and if this is true, when coupled with the lesser legal ranking it possesses, the 1992 Declaration is not a huge step forward. However it must be noted that the 1992 Declaration does take a positive stance with regard to the aforementioned criticism of the negative drafting of Article 27. It replaces the ban against a denial of the right to enjoy culture, religion etc. with the acknowledgment of the possession of that right[29]. This is hugely significant as removing the negative connotation associated with the right denies States the ability to simply do nothing on behalf of their minority population and still claim they satisfy their legal obligations regarding minorities. However the lack of a binding quality of the 1992 Declaration may yet allow States that luxury.
(2) Minority Definition
As can be seen from the brief examination of the various instruments, there lacks a specific definition as to what a minority actually is. It is true that even with the onset of the Framework Convention (as will be seen in the next chapter) there is still no universally accepted definition of what a minority is in Europe or indeed elsewhere in the world. Without question, the lack of a definition leads to countless issues such as minority exclusion and misidentification. Classification of the types of minorities (religious, linguistic etc) has led to the rights and protections that they are entitled to being defined rather than the minorities themselves[30]. It is rare and inadvisable to grant rights to a body that cannot be easily recognised or defined. It results in valid claims to the rights of a minority being ignored and forces consideration of dubious claims. This leads to frustration and also suspicion within the area of minority rights protection.
The most famous and widely accepted definition of a minority was postulated by Francesco Capotorti who stated that a minority was:
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 who, if only implicitly maintain a sense of solidarity, directed towards preserving their culture, traditions, religion or language.[31]
Some key points must be made with regard to this definition which still acts as the only effective modern guidance as to what a minority is. The idea of a minority being numerically inferior does not apply to all situations as shown by the former regime in South Africa, where those in power (and thus holding the seat of the majority) were far less in numbers. However this can be clarified by Capotorti’s non-dominant position which a minority would hold. Article 27’s list of minorities is also reproduced by Capotorti but the era in which this definition was offered must be kept in mind. Finally, the sense of solidarity he makes reference to would appear to hint at an element of autonomy or even self determination which is clearly absent from the ICCPR, the ECHR and even the 1992 Declaration. However, one somewhat depressing addition to this definition is the fact that members of a minority must be nationals of the state. This ideology can lead to the exclusion of minorities such as the Roma and other travelling communities who are often without a designated country of origin.
The above definition and the reality that it is not legally binding or to be found in any treaty concerning the rights of minorities must be kept in mind when a consideration of the Framework Convention (an instrument purportedly solely concerned with the issue of minorities) is undertaken. For the law (including international law) is the means by which the ideals and aspirations of human rights, which arguably encompasses minority right, are made real[32] and thus for minorities to be recognised and protected they must first be legally defined.
(C) THE FRAMEWORK CONVENTION
In each unique area of human rights such as the rights of the child or women’s rights, protection and promotion cannot be guaranteed by the odd provision in random international treaties. As with the demarcation of country’s domestic law into specific areas, which although may overlap are still distinct, the same attention and division must be applied to each category within the human rights system. Otherwise, any protection is boarding on mere tokenism. In that respect, it should be noted that the Framework Convention is the only legally binding instrument that exclusively addresses the protection of the rights of minorities and on that basis alone should be viewed as a progressive development. This is especially true when one considers that it was the first of its kind and was drafted after an era in which the idea of devoting an entire treaty to minority rights was not a widely or enthusiastically backed pursuit[33]. However, this does not mean that the Framework Convention should be exempt from the analysis or criticism that all other multilateral treaties have had to endure.
(1) Text of Framework Convention
The first and most obvious criticism is that there is still a lack of a definition as to what minorities actually are[34]. This is obviously disappointing due to the problems discussed that can arise from failing to define those who are being afforded rights. Naturally, the absence of a definition was caused by a failure to reach universal agreement on a satisfactory definition but some would argue that though it creates some uncertainty, the Framework Convention is better off not having a definition rather than settling for one based on the lowest common denominator[35]. Though this is a fair point, this is not akin to allowing States to make reservations with regard to provisions that deal with controversial subjects in order to complete the negotiations of a treaty[36]. Nor is it similar to employing the language of progressive realisation of rights rather than the language of a duty to guarantee those rights in order to attain more ratifying parties as seen with other international covenants. The definition of those who are afforded rights is fundamental to any treaty and any absence of such a definition casts doubt upon the worth of such a treaty.
Furthermore, in addition to the lack of definition the Framework Convention adopts a narrow approach by guaranteeing protection to national minorities only[37] and thus though it is legally binding, it is actually less expansive that the 1992 Declaration that exists within the United Nations system. However, it should be pointed out that the use of the term national minority is not automatically equitable with Capotorti’s definition which possessed an element of citizenship[38]. Finally in this regard, the Framework Convention declares that States must preserve the identity of minorities which is defined by ‘their religion, language, traditions and cultural heritage’[39]. The use of the term and rather than or could further limit the narrow idea of a national minority.
Regarding the text of the Framework Convention, a comment must be made concerning the fact that it possesses similarities with the ECHR with regard to its preamble and numerous provisions[40], in addition to the use of the expression national minority. The ECHR is renowned as being individualistic in nature and thus is not the best basis for a document that supposedly details the rights of groups. This peculiarity might explain why it is noticeably difficult to find an obvious collective right in the Framework Convention. Also, if the Framework Convention was deliberately drafted to be interpreted in line with the ECHR[41], why then can it not rely on the European Court of Human Rights to ensure implementation rather than the weak reporting mechanism that will be discussed in the next section? To view this state of affairs cynically, one may argue that the Framework Convention has been designed to cement the concept of the individual in the field of minority/group rights and also avoid the possibility of a judiciary actively searching for such rights.
Another criticism levelled at the Framework Convention concerns the title of the instrument itself, i.e. that the term framework softens the legal obligations of States[42] and that it can only be applied via the actions of those States[43]. This flexibility afforded States probably derives from the same reasoning that resulted in a lack of definition of minorities. However, as can be seen in domestic legal systems with regard to judicial activism, the responsibility to flesh out general principles of law into fully rounded legislation can lead to a better than expected development of those principles. In this regard, I do not think that it is wholly negative to leave States with this degree of room to operate within. However, this flexibility will only be considered a positive move if the monitoring of States’ implementation measure is carried out thoroughly. With this in mind, an examination of such monitoring procedures must be undertaken in order to discover their worth or alternatively their ineptitude. This is of great importance as some authors believe that the Framework Convention is a step backward in the protection of minorities due to the fact that even though Article 27 of the ICCPR had no group complaint mechanism, it at least had an individual complaint mechanism[44]. The old axiom that there can be no right without a remedy place pressure upon the Framework Convention’s monitoring process.
(2) Monitoring of the Framework Convention
If the Framework Convention is to escape the criticism that it has employed the weakest mechanism of implementation available by opting to monitor such implementation on the basis of submitted reports, the monitoring process must be beyond recrimination. As a starting point this has set the bar extremely high but that is the cost of excluding a complaint mechanism (whether individual or interstate), which is the best way of instilling confidence in legal commentators and the general public. Naturally, the absence of a complaint mechanism is an attempt to support States rather than sanction them but this support needs to be based on the best interests of minorities. With that in mind the role played by the key monitoring actors, i.e. the Advisory Committee and the Committee of Ministers must be examined.
Firstly, the name itself of the Advisory Committee hints at the limits of its role. The term advisory would suggest that mere opinions can only be offered without any binding affect or real influence upon the Committee of Ministers. In this regard, it still remains unclear as to whether the Advisory Committee will truly be able to stand alone and act in its own capacity[45] as an independent body. The Framework Convention states that the Committee of Ministers will be ‘assisted by an advisory committee’[46], which could be given a liberal or strict interpretation. For instance consider how an assistant manager of a football team could influence and shape the direction of that team as opposed to a shop assistant that is there merely as an extra hand to be used when needed. Naturally the former would be the more desirable role. Some commentators call for the realisation of such a role to the extent that the Committee of Ministers is essentially bound by recommendations coming from the Advisory Committee[47] but this is highly optimistic and a possibility not obviously interpretable from the relevant provisions of the Framework Convention.
The aforementioned optimism would surely be diminished more by the fact that in reality the Advisory Committee is assisting an overtly political body in the monitoring of treaty implementation which is a unique set of circumstances within the framework of human rights[48]. The aims of politicians and human rights advocates are often not in sync with each other and thus the composition and expertise of the Advisory Committee is highly important. Prospective members to such a body are required to have recognisable proficiency in the field of the protection of the rights of minorities according to Article 26(1) of the Framework Convention. However, there is a necessity for such individuals to have experience with non-governmental organisations and minority rights groups if the Advisory Committee is to function effectively[49] . Otherwise this body will be not be able to interact with the essential players in the field of minority rights and the Advisory Committee will be no more than a tokenistic organ. Similarly, as it is governments that nominate such members, their independence is essential if they will be are to be considered more than just a subsidiary and subservient tool of the Committee of Ministers.
Whatever role the Committee of Ministers et al believe the Advisory Committee to hold, for the latter body to offer the best advice possible it will require access to as much information as can feasibly be obtained. In this regard the ability of the Advisory Committee to access more than just the submitted reports is essential. Unfortunately some curtailments are forced on the Advisory Committee in their collection of all available information. For example, it cannot demand additional information from reporting States. Other expert committees in the human rights monitoring system have greater authority and will receive any additional information from the States in question upon request being made[50]. This is an unfortunate set of circumstances since the Advisory Committee can only provide valid advice if it is basing its opinion on all the facts rather than just a selection of them. This could lead to the recommendations of the Advisory Committee being sub-standard and thus tarnish its reputation despite the fact that it could not be considered liable for such an occurrence.
However, as with all expert committees the Advisory Committee could rely on the shadow reports etc. of non-governmental organisations to secure the accuracy of its opinions. For it is widely accepted that the primary function of non-governmental organisations is to excavate the facts that our needed to give a true picture of the implementation of any international treaty[51]. Thus the value of their input cannot be overstated. Unfortunately, as above, the Advisory Committee faces restriction regarding its relationship with non-governmental organisations. The Advisory Committee is unable to actively collect, and can only receive information from non-state sources unless it provides prior notification to the Committee of Ministers[52] of its intention to proactively seek information. This is not to say that the Committee of Ministers will attempt to mould this notification requirement into an effective veto (or to suggest that this is even possible) but it is yet another pointless bureaucratic step that hinders the progress of the Advisory Committee.
In conclusion it must be pointed out that human rights bodies and expert groups have, in the past, displayed a keen ability to read unexpected powers into their mandates which resulted in the strengthening of their respective positions. In relation to this fact, the Advisory Committee displayed early resolve to seek additional information by inviting non-governmental organisations to furnish it with extra data and notified the Committee of Ministers without rebuke[53]. As long as the Advisory Committee continues to employ every available power it has and gives its task the respect it deserves, the only way its relevance can be questioned is if the Committee of Ministers chooses to water down or simply ignore any advice that is offered. However, as minority rights are essential to avoid conflict between peoples and States, the proper implementation of the Framework Convention would be in the interests of States who wish to keep the minorities within their borders happy and docile[54]. Thus a political body such as the Committee of Ministers would be wise to take the Advisory Committee seriously and give due regard to its recommendations.
(D) THE CASE OF THE ROMA
The reason why brief attention must now be given to the Roma people is down to the fact that because the powers that be have failed to reach any universal satisfactory definition on what a minority is, there is a valid postulation that the Roma are excluded from all current attempted definitions of minorities[55], especially when one considers the idea of a national minority under the Framework Convention. This chapter will examine the position that the Roma people find themselves in and why the Framework Convention does not offer satisfactory protection or recognition for them. With that in mind, it must be remembered throughout this chapter that although the Framework Convention may not be the right tool to use to address the problems faced by the Roma, it is essentially the only viable option that can be availed off. This suggests that the tool may not be faulty, but simply that the tool box (international protection of minorities) needs more stock.
(1) The Stigma of Being Roma
The Roma people are a migratory people whom have been branded by the term gypsies, which is not a correct label and is only associated with them due to the belief that they originated from Egypt[56]. This is inaccurate as it is now widely believed that they originated from the region that is modern day India. Labels such as this are a common way to demean and discriminate against such peoples. In Ireland for instance, the travelling community are at times labelled with offensive terminology that relates to the employment that they were previously associated with. The Roma populations around Europe suffer from low literacy rates, lower life spans and poor modes of accommodation[57]. In addition, they experience high levels of unemployment and all these factors combine to produce an over-representation of the Roma in criminal activities[58]. This naturally leads to a stigma that they are lazy and dim-witted with a criminal propensity. However, though this stigma is easy to attach and sensationalise it must be realised that conditions such as unemployment and economic inequality are widely held to have causal links to crime[59] and thus the Roma people are not peculiar in this regard. Such a result is made even more likely by the fact that persecution of Roma is predominantly on economic grounds[60]. This idea of criminal heredity is also a racially motivated idea which was once applied to the Jewish people as well when both minorities were considered non-European and thus potential polluters of the “perfect” European race[61]. These facts must be borne in mind as the debate below moves on to consider the deliberate move of self-exclusion from the majority (i.e. dominant populations) made by the Roma.
(2) Roma Identity and Exclusion
It is clear from the above section that the Roma face discrimination and the fate of stigmatisation. However, to truly comprehend the position that the Roma find themselves in, one must also be aware of the fact that they inherently distrust outsiders, to the extent that their religion could dictate that outsiders are unclean[62]. However, it must be pointed out that most people would understand why the Roma find it difficult to trust the outside world when, as noted previously, the Nazi regime tried to eradicate them alongside the Jews. Also, historically speaking the laws of nations have not been kind to the Roma people who have suffered the dangerous indignity of having their very existence made contrary to the law[63] and the shame of being registered as legal game. Documented centuries of negative interaction with the so-called majority of countries provides a clear reason why the Roma chose (whether voluntarily or otherwise) to remain outside the realms of social and economic development that was taking place around them[64].
With the marginalisation of the Roma in mind, how can the Framework Convention assist them with their plight and if it can, will the Roma maintain their traditional distrust or will they attempt to work within the framework provided? It has already been noted that the term national minority could lead to their exclusion from protection, especially since the Roma are not an indigenous or colonised people and have no homeland, thus cannot be considered a nation[65]. It is also worth mentioning that the Framework Convention could be used anyway by States such as Germany to attempt to limit the protection they offer to the Roma of the world[66]. However, leaving that aside the Roma satisfy all requirements of the Capotorti definition of minorities (except being nationals of the State)[67] and as this is one of the best known definitions, it would appear difficult to refuse to recognise them as such. In this regard though, it must be pointed out that a Roma national consciousness is not universally popular amongst the Roma people[68]. It is hard enough to be recognised internationally as a minority with specific beliefs, traditions or characteristics but the task is infinitely more difficult when the minority does not clearly recognise itself.
From the above it is clear that the Framework Convention is not particularly suited to bring the Roma under its protection. One further point must be made in that regard and was alluded to in the previous paragraph. Would the Roma want to operate within the Framework Convention? Article 5(1) provides that States will ensure conditions that allow minorities to preserve their identity as defined by their ‘religion, language, traditions and cultural heritage’. However this leaves out the hugely important element of a group’s legal system which may mean that the Roma would lose their unique and different legal practices[69]. The laws of a people can define who they are and what they believe in and other historical minorities such as the Basques have always sought the retention of such laws even during occupation by various majorities. Also the Framework Convention guarantees that conditions will be in place to facilitate members of minorities to participate in the cultural, political and social affairs of the majority[70]. However, that presupposes the desire of minorities to do so and it is worth considering whether Article 3 of the Framework Convention could be conversely used to guarantee a right that minority members can choose to be treated and be part of their minority only.
Integration into the majority of a country, whether voluntarily or otherwise still results in the loss of unique elements of the minority’s culture[71]. Whether the Roma are truly covered by the Framework Convention or even wish to be is yet to be seen. However, due to this uncertainty and the highlighted negative elements of such coverage, the concept of autonomy must be analyzed.
(E) AUTONOMY AS THE WAY FORWARD
The employment of terms such as autonomy, self determination and sovereignty cause panic in the parliaments of many governments and give rise to much nationalistic sentiment. They are associated with civil unrest, rebellion and secession and all of these terms spell disaster for any current conception of a State. Many governments believe that they are so linked and interdependent, that it is unwise to grant autonomy as this merely acts as a stepping stone to secession[72] and thus the breaking up of a State. In fact, autonomy leads to self-determination but not to self-governance[73] (which is the true stepping stone towards secession) and the former is no more than States demand for themselves in dealings with foreign powers. Surely therefore, groups within the State that have their own identity deserve such consideration as well.. However, be that as it may States still are hesitant to get involved in the granting of such power to groups within its borders. Regarding the aforementioned Roma, it should be pointed out though that they lack the required military, economic or political power to force the issue of autonomy upon any State that they reside in[74] and also there is no evidence of any common rebellious activity on their behalf[75] to achieve such a goal. However, an element of control over their own affairs and the recognition of this fact could guarantee the true protection and preservation of their people and way of life.
Traditionally self-determination has been linked to those who were considered indigenous peoples or those that had suffered the fate of colonialism[76]. In this regard it is hard for States to deny such allowances as there usually involved an element of subjugation by a majority of the local indigenous people or simply the conquering and theft of a nation. In truth, allowing such peoples to have control over their own affairs is effectively giving back what was rightfully theirs in the first place. Unfortunately, due to the changing of borders, the assimilation of local cultures and especially the unwillingness to relinquish control over land, self-determination is not usually achieved so easily and often involves conflict. This is despite the fact that the right to self-determination is one of the most effective ways of guaranteeing peace, which would seem to be in the best interests of a State and a people. Regardless of this, it again must be pointed out that with respect to the above problems, the fact that the Roma as a people do not inhabit a specific area of land or widely seek such inhabitation, the delicate matter of land rights can be avoided when considering any claims that they may make regarding autonomy in the future.
Regarding the previously discussed instruments concerning minority protection it must be stated that firstly the ICCPR’s reference to self-determination bears little direct applicability to the cause of minorities[77] regardless of any bearing the rest of the document has upon their position. Furthermore, as the 1992 Declaration has a lack of any binding force, its input on this matter would be purely inspirational. That said, it lacks even the mention of self determination or autonomy in any of its provisions and any attempt in incorporating such a notion proved fruitless during its drafting[78]. Similarly, the ECHR does not possess any specific mention of self-determination[79], and if it did the individualistic quality previously associated with it in this essay would hugely limit the ability of a group, let alone an individual, to attempt to establish such a right for minorities. Finally, the Framework Convention does not contain any provision to form the basis for a claim for autonomous governance[80]. It is obvious from the above that the drafters of instruments dealing with the rights of minorities are wary of the concept of autonomy but this is hardly surprising as in essence it is States who write these documents. This fear (highlighted above as being that States see autonomy as a pathway to secession) could also be based on the fact that for autonomy to be realised, there must first be recognition by States of group rights and this could lead to a required guarantee of certain public jobs and the onset of preferential treatment in favour of members of minorities[81]. For if a people are to have autonomy, they must hold power in the majority at some level to facilitate decision making that affects them.
One final point must be made regarding the idea of autonomy. Many commentators have alluded to that fact that the CRC’s incursion into the realm of minority rights[82] points to a recognition of minority autonomy outside the usual framework of minority protection. The CRC speaks of the enjoyment of all the characteristics associated with being a minority but not of the control over this enjoyment. In addition, numerous reservations have been made to the article of the CRC in question and as such it can be inferred that this is yet another move by States to limit the occurrence of autonomy in any form. As such, I do not believe that the CRC will have great impact for the cause of autonomy in the lives of minorities.
In conclusion, minorities such as the Roma who would benefit from a form of internal self-determination and would surely not face as many barriers as other minorities would due to the absence of any connection their autonomy claim could have with secession, still must face the problem of interaction with the majority to achieve such goals. Centuries of discrimination has made the Roma a secretive and introspective group. In States such as the United States, the presence of the Roma has given rise to a parallel society to that of the dominant power[83] and thus they have their autonomy, but in a format that will keep them marginalised and excluded. The melting pot policy of the United States is not one that is widely applied in Europe and thus it may be harder for the Roma to achieve such parallels. This though is a positive fact as autonomy as a result of anonymity is not the way forward. Self-determination must involve more than self awareness; others must also be aware and recognise their existence.
(F) CONCLUDING REMARKS
The cause of the individual is still the main consideration of human rights and there are those who believe that this state of affairs is sufficient, as the rights of a people should be satisfied if the rights of each individual are. Unfortunately however this is just not the case, as a minority (be they a national minority or otherwise) possesses a separate identity and embodies a unique entity from those it consists of and thus protecting the individual alone results in the abandonment of that minority. The pubic at times hold such strong views regarding national pride that it is hard to understand why the same class of people fail to comprehend the desire of these minorities to preserve and maintain their own unique identity, especially in the case of the Roma whom have no homeland to attach such national pride to. It is even harder to understand why States are unable to recognize the need for such an identity, as a failure to do so results in the minority being marginalised and thus forced outside of the society that the State has control over and responsibility for.
It is clear from this analysis that Europe has not yet grasped how to deal with the issue of minority rights. It is bogged down in the notion of individuality and has failed as of yet to even understand and define what a minority is. This results in the marginalised peoples of our society, such as the Roma, being pushed further outside the realm of consideration and towards the status of outcasts. Europe’s response has been slow and at times unhelpful as it fails to disentangle itself from the individualistic ideals of instruments such as the UDHR and ECHR. However, that said it must also be recognised that the Framework Convention is the only binding treaty in the world that concerns itself with minorities, their protection and their rights. It is also a progressive and positive move in Europe, as despite its obvious shortcomings, it at least gives minorities the respect of having their own instrument rather than having their rights construed as mere additional thoughts in other international treaties. However, that does not mean that Europe can rest on its laurels as the reality of the need for autonomy of many, if not all minorities has yet to receive proper consideration. Charles Stuart Parnell once orated that no man has the right to say to his country ‘thus far shalt thou go and no further’. It is important that Europe takes a similar attitude towards its people and continues to develop the rights of minorities.
[1] Framework Convention for the Protection of National Minorities, (opened for signature 1 February 1995, entered into force 1 February 1998) CETS No. 157.
[2] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).
[3] Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR).
[4] John R. Valentine, ‘Toward a Definition of National Minority’ (2004) 32 Denv. J. Int’l & Pol’y 453-454.
[5] Jelena Pejic, ‘Minority Rights in International Law’ Human Rights Quarterly 19.3 (1997) 670.
[6] Human Rights Committee ‘General Comment No. 23: The Rights of Minorities (Art. 27)’ (8 April 1994) UN Doc. CCPR/C/21/Rev.1/Add.5 at paragraph 6.1.
[7] See supra note 2 at Article 27.
[8] See supra note 4 at 455.
[9] See supra note 6 at paragraph 6.2.
[10] See supra note 5 at 674.
[11] Joel E. Oestreich, ‘Liberal Theory and Minority Group Rights’ Human Rights Quarterly 21.1 (1999) 116.
[12] Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3.
[13] See supra note 2 at Article 27.
[14] See supra note 5 at 669.
[15] Patrick Thornberry and Maria Amor Martin Estebanez, Minority Rights in Europe (Council of Europe Publishing, Germany 2004) 13.
[16] See supra note 6 at paragraph 5.2.
[17] European Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 4 November 1950, entered into force 3 September 1953) CETS No.5 213 UNTS 221.
[18] Geoff Gilbert, ‘The Council of Europe and Minority Rights’ Human Rights Quarterly 18.1 (1996) 173.
[19] See supra note 17 at Article 14.
[20] See supra note 3 at Article 2.
[21] Henry J. Steiner and Philip Alston, International Human Rights in Context (2nd Edition, Oxford University Press, New York 2000) 787.
[22] See supra note 4 at 458.
[23] See supra note 15 at 67.
[24] See supra note 21 at 788.
[25] Author is aware of the other instruments regarding minority rights pre-dating the Framework Convention but they do not possess modern relevance or the stand-alone quality of the discussed instruments.
[26] Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities (adopted 18 December 1992) UNGA Res 47/135.
[27] Radhika Coomaraswamy, ‘Identity Within: Cultural Relativism, Minority Rights and the Empowerment of Women’ (2002) 34 Geo. Wash. Int’l L. Rev 489.
[28] See supra note 5 at 677.
[29] See supra note 15 at 15.
[30] See supra note 18 at 169
[31] Francesco Capotorti, ‘Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities’ (1977) UN Doc. E/CN.4/Sub.2/384/Add.1-7.
[32] Conor Gearty, Can Human Rights Survive (Cambridge University Press, Cambridge 2000) 68.
[33] Frank Steketee, ‘The Framework Convention: A Piece of Art or a Tool for Action:’ (2001) 8 Int’l J. on Minority & Group Rts. 3.
[34] Gerd Oberleitner, ‘Monitoring Minority Rights under the Council of Europe’s Framework Convention’ in Peter Cumper and Steven Wheatley (eds), Minority Rights in the ‘New’ Europe (Martinus Nijhoff Publishers, The Hague 1999) 71.
[35] See supra note 32 at 6.
[36] Such as reservations made to Article 14 of the CRC on the basis of Islam.
[37] Gudmundur Alfredsson, ‘Frame an Incomplete Painting: Comparison of the Framework Convention for the Protection of National Minorities with International Standards and Monitoring Procedures’ (2000) 7 Int’l J. on Minority & Group Rts 296.
[38] See supra note 15 at 94.
[39] See supra note 1 at Article 5(1).
[40] See supra note 15 at 103-104.
[41] See supra note 18 at 175.
[42] See supra note 14 at 91.
[43] See supra note 4 at 470.
[44] See supra note 5 at 683.
[45] See supra note 34 at 79.
[46] See supra note 1 at Article 26(1).
[47] See supra note 37 at 302.
[48] Gaetano Pentassuglia, ‘Monitoring Minority Rights in Europe: The Implementation Machinery of the Framework Convention for the Protection of National Minorities – With Special Reference to the Role of the Advisory Committee’ (1998-1999) 6 Int’l J. on Minority & Group Rts. 431.
[49] See supra note 34 at 76.
[50] See supra note 48 at 439.
[51] See supra note 21 at 939.
[52] See supra note 48 at 442-443.
[53] See supra note 33 at 8-9.
[54] See supra note 37 at 303-304.
[55] Mary Ellen Tsekos, ‘Minority Rights: The Failure of International Law to Protect the Roma’ (2002) 9 NO. 3 Hum Rts. Brief 26.
[56] Jonathan Fox, ‘Patterns of Discrimination, Grievances and Political Activity among Europe’s Roma: A Cross-Sectional Analysis’ (2001) JEMIE 2.
[57] See supra note 55 at 26.
[58] See supra note 56 at 3.
[59] Katherine S. Williams, Criminology (4th Edition, Oxford University Press, New York 2001) 326.
[60] See supra note 56 at 12-13.
[61] Ronald Lee, ‘What is Roma Rights’ (Roma Rights Quarterly 1/2004)
[62] See supra note 62 at 55.
[63] Fred Bertram, ‘The Particular Problems of (the) Roma’ (1997) 3 U.C Davis J. Int’l L. & Pol’y 4.
[64] Istvan Pogany, ‘Accommodating an Emergent National Identity: The Roma of Central and Eastern Europe’ (1998-1999) 6 Int’l J. on Minority & Group Rts. 153.
[65] See supra note 63 at 10-11.
[66] See supra note 15 at 172.
[67] See supra note 63 at 16-17.
[68] See supra note 64 at 156-157.
[69] See supra note 63 at 23.
[70] See supra note 63 at 25.
[71] Istvan Pogany, ‘Minority Rights and the Roma of Central and Eastern Europe’ (2006) 6 Hum. Rts. L. Rev. 14.
[72] Javier Rehman, ‘The Concept of Autonomy and Minority Rights in Europe’ in Peter Cumper and Steven Wheatley (eds), Minority Rights in the ‘New’ Europe (Martinus Nijhoff Publishers, The Hague 1999) 217.
[73] Geoff Gilbert, ‘Autonomy and Minority Groups: A Right in International Law?’ (2001-2002) 35 Cornell Int’l L.J. 318.
[74] See supra note 63 at 28.
[75] See supra note 56 at 17.
[76] See supra note 72 at 221.
[77] Javaid Rehman, The Weakness in the International Protection of Minority Rights (Kluwer Law International, The Hague 2000) 170.
[78] See supra note 72 at 224-225.
[79] See supra note 15 at 44.
[80] See supra note 73 at 322.
[81] See supra note 4 at 446.
[82] See supra note 12 at Article 30.
[83] See supra note 63 at 20.
LIST OF RESOURCES
Conor Gearty, Can Human Rights Survive (Cambridge University Press, Cambridge 2000).
Francesco Capotorti, ‘Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities’ (1977) UN Doc. E/CN.4/Sub.2/384/Add.1-7.
Frank Steketee, ‘The Framework Convention: A Piece of Art or a Tool for Action:’ (2001) 8 Int’l J. on Minority & Group Rts. 1.
Fred Bertram, ‘The Particular Problems of (the) Roma’ (1997) 3 U.C Davis J. Int’l L. & Pol’y 1.
Gaetano Pentassuglia, ‘Monitoring Minority Rights in Europe: The Implementation Machinery of the Framework Convention for the Protection of National Minorities – With Special Reference to the Role of the Advisory Committee’ (1998-1999) 6 Int’l J. on Minority & Group Rts. 417.
Geoff Gilbert, ‘Autonomy and Minority Groups: A Right in International Law?’ (2001-2002) 35 Cornell Int’l L.J. 307.
Geoff Gilbert, ‘The Council of Europe and Minority Rights’ Human Rights Quarterly 18.1 (1996) 160.
Gerd Oberleitner, ‘Monitoring Minority Rights under the Council of Europe’s Framework Convention’ in Peter Cumper and Steven Wheatley (eds), Minority Rights in the ‘New’ Europe (Martinus Nijhoff Publishers, The Hague 1999).
Gudmundur Alfredsson, ‘Frame an Incomplete Painting: Comparison of the Framework Convention for the Protection of National Minorities with International Standards and Monitoring Procedures’ (2000) 7 Int’l J. on Minority & Group Rts 291.
Henry J. Steiner and Philip Alston, International Human Rights in Context (2nd Edition, Oxford University Press, New York 2000).
Human Rights Committee ‘General Comment No. 23: The Rights of Minorities (Art. 27)’ (8 April 1994) UN Doc. CCPR/C/21/Rev.1/Add.5.
Istvan Pogany, ‘Accommodating an Emergent National Identity: The Roma of Central and Eastern Europe’ (1998-1999) 6 Int’l J. on Minority & Group Rts. 149.
Istvan Pogany, ‘Minority Rights and the Roma of Central and Eastern Europe’ (2006) 6 Hum. Rts. L. Rev. 1.
Javaid Rehamn, ‘The Concept of Autonomy and Minority Rights in Europe’ in Peter Cumper and Steven Wheatley (eds), Minority Rights in the ‘New’ Europe (Martinus Nijhoff Publishers, The Hague 1999) 216.
Jelena Pejic, ‘Minority Rights in International Law’ Human Rights Quarterly 19.3 (1997) 666.
Joel E. Oestreich, ‘Liberal Theory and Minority Group Rights’ Human Rights Quarterly 21.1 (1999) 108.
John R. Valentine, ‘Toward a Definition of National Minority’ (2004) 32 Denv. J. Int’l & Pol’y 445.
Jonathan Fox, ‘Patterns of Discrimination, Grievances and Political Activity among Europe’s Roma: A Cross-Sectional Analysis’ (2001) JEMIE 1.
Katherine S. Williams, Criminology (4th Edition, Oxford University Press, New York 2001).
Mary Ellen Tsekos, ‘Minority Rights: The Failure of International Law to Protect the Roma’ (2002) 9 NO. 3 Hum Rts. Brief 26.
Patrick Thornberry and Maria Amor Martin Estebanez, Minority Rights in Europe (Council of Europe Publishing, Germany 2004).
Radhika Coomaraswamy, ‘Identity Within: Cultural Relativism, Minority Rights and the Empowerment of Women’ (2002) 34 Geo. Wash. Int’l L. Rev 483.
Ronald Lee, ‘What is Roma Rights’ (Roma Rights Quarterly 1/2004)
TABLE OF LEGISLATION
Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3.
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities (adopted 18 December 1992) UNGA Res 47/135.
European Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 4 November 1950, entered into force 3 September 1953) CETS No.5, 213 UNTS 221.
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).
Framework Convention for the Protection of National Minorities, (opened for signature 1 February 1995, entered into force 1 February 1998) CETS No. 157.
Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR).
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