1 Researcher and Lecturer International Law (Ph.D. title: The Role of International Monitoring and Supervision Mechanisms on Enhancing Implementation of and Compliance with Minority Rights Provisions) at the Department of European and International Law, Tilburg University, The Netherlands, and the T.M.C. Asser Institute, The Hague, The Netherlands, member of the Netherlands School of Human Rights Research.
1 The Working Group on Minorities is a subsidiary organ of the Sub-Commission on the Pro- motion and Protection of Human Rights from which it draws its five expert members. The five expert members represent the five geographical regions the UN uses to divide seats on UN bodies. The current members of the Working Group are: Mr. Asbjorn Eide (Chair, Norway, who resigned after the 10`" session), Mr. Jose Bengoa (Chile), Mr. Vladimir Kartashkin (Russian Fed- eration), Mr. Soli Sorabjee (India) and Ms. Leila Zerrougui (Algeria). Since 1995, the Working Group has met annually for one week. 2 Minority Rights Group International (MRG) has produced an extensive report on the 9`" ses- sion that is available at http://www.minorityrights.org/. The Working Group has also provided an extensive final report which reflects the general course of the debate, see for the 9`" session E/CN.4/Sub.2/2003/19,10 July 2003. The final report of the 10th session was not available at the time of writing this article but will become available at http://www.unhchr.ch/minorities/group. htm. 3 See Commission on Human Rights Resolution 1995/24, para. 9, in which the Commission on Human Rights authorizes the Sub-Commission to establish the Working Group on Minorities and subsequently enumerates these tasks.
4 Issues a., b. and c. are discussed under agenda item 3. Agenda item 1 concerns the adoption of the agenda, agenda item 2 the organization of work and agenda item 4 the future role of the Working Group. See for a more thorough overview of the Working Group in general Rianne Letschert, "Review of the 8`" Session of the United Nations Working Group on Minorities", 2 EYMI (2002/3), 493-506. 5 See for the list of participants: Annex 1 of the final report of the 9`" session, E/CN.4/Sub.2/2003/19, 10 July 2003. 6 Representatives of 33 NGOs presented such information. Most statements are available on the website of the Working Group on Minorities, at http:llwww.unhchr.ch/minorities/group.htm.
7 The statement by the representative of the Croatian NGO, Centre for Peace, Legal Advice and Psychosocial Assistance and subsequently the response of the Croatian government observer serves as a good example of an extended dialogue. The NGO referred to the situation of the Ser- bian refugees from Croatia and the slow return process. Those that have stayed or returned suffer from discrimination, harassment and occasional violence. The government observer informed the
Working Group that the government has been taking measures since 2001 to provide solutions to the problem of the return of refugees. He also mentioned that the government has adopted a new Constitutional Law on the Rights of National Minorities. After this statement the repre- sentative of the NGO asked the observer to make some additional clarifications, which he did. 8 See respectively Tom Hadden, "Towards a Set of Regional Guidelines or Codes of Practice on the Implementation of the Declaration", E/CN.4/Sub.2/AC.5/2003/VVT.1; International Centre for Ethnic Studies, "Statement of Principles on Minority and Group Rights in South Asia", E/CN.4/Sub.2/AC.5/2003/WP.2; Julia Kam and Sem Karoba, "Regional Seminar on Minority Rights: Cultural Diversity and Development in Southeast Asia", E/CN.4/Sub.2/AC.S/2003/ WP14; and AsbJ0rn Eide "Conclusions and Recommendations of the Sub-regional Seminar on Minority Rights: Cultural Diversity and Development in Southeast Asia", E/CN.4/Sub.2/ AC.5/2003/2. All documents to be found at http:l/www.unhchr.ch/minorities/ninth.htm. 9 Hadden works as a consultant to the Working Group and is a professor of law at Qyeen's Uni- versity, Belfast. 10 See Hadden, "Towards a Set of Regional Guidelines ..., 2. 11 It should, however, be noted that guidelines on possible measures have been prepared by the Chairman of the Working Group, see the report by Asbjørn Eide, "Possible Ways and Means of Facilitating the Peaceful and Constructive Solution of Problems involving Minorities", E/CN.4/ Sub.2/1993/34 and Add-1 to 4.
12 See also the final report of the Working Group, E/CN.4/Sub.2/2003/19,10 July 2003, 9. 13 See Hadden, "Towards a Set of Regional Guidelines ..., 2-3. 14 See Kam and Karoba, "Regional Seminar on Minority Rights .... 15 International Centre for Ethnic Studies "Statement of Principles .... 16 Paper prepared by E. Gyimah-Boadi and Richard Asante, "Minorities in Ghana", E/CN.4/ Sub.2/AC.5/2003/WP.4. 17 Paper prepared by Anna Matveeva, "Minorities in the South Caucasus", "'E/CN.4/Sub.2/ AC.S/2003, WP.7. See also Mustapha Kamel Al-Sayyid, "Political Participation in Arab Coun- tries", WP.19; Ana Chala, "People of African Descent in South America", WP18; Jorge Bernal "The Rom in the Americas", WP 17; Dru C. Gladney, "China's Minorities: the Case of Xinjiang and the Uyghur People", WP. 16; Erlinda M. Burton, "'Ihe Quest of the Indigenous Communi- ties in Minanou, Philippines: Rights to Ancestral Domain", WP. 15; Abdul Raufu Mustapha, "Ethnic Minorities in Nigeria: Current situation and major problems", WP.10; Nazila Ghanea- Hercock, "Ethnic and Religious Groups in the Islamic Republic of Iran: Policy suggestions for the integration of minorities through participation in public life", WP. 8; Vatthana Pholsena, "Inclusion of Minorities in Public Life in Laos, Thailand and Vietnam", WP. 11; Lily Zubai- dah Rahim, "Minorities and the State in Malaysia and Singapore", WP. 12; Ainur Bekkulovna Elebaeva, "Kyrgyzstan", WP 6; Jon Fraenkel, "Minority Rights in Fiji and the Solomon Islands: Reinforcing constitutional protections, establishing land rights and overcoming poverty", WP. 5; Bhavna Dave, "Minorities and Participation in Public Life: Kazakhstan", WP. 9; I. A. Rehman, "Minorities in South Asia", WP 13. 18 See Hadden, "Towards a Set of Regional Guidelines ..., 4.
19 Ibid, 5. 20 Ibid., 6. 21 Ibid, 6-7. 22 See in this regard the report submitted by the International Centre for Ethnic Studies, with respect to minority issues in South Asia, E/CN.4/Sub.2/AC.5/2003/WP.2. 23 Working Group member Sorabjee presented the report of the first Asian seminar on minority rights, held in Chiang Mai, Thailand, see E/CN.4/Sub.2/AC.5/2003/2. 24 See Hadden, "Towards a Set of Regional Guidelines ..., 9.
25 Ibid., 12. 26 Ibid., 13-4.
32 See also the following quote: "The Commission on Human Rights lacks the capacity to act in the same way that the Secretary-General can through his good offices, and it is unlikely that a special rapporteur would be empowered personally to mediate in a developing dispute." See Simon Chesterman, "Minority Protection, Conflict Prevention and the UN System", revised ver- sion of a paper presented at a meeting convened by the Rockefeller Foundation and the Neelan Tiruchelvam Trust, 18 October 2001,18. 33 For more information regarding this issue I refer to Letschert, "Review of the 8m Session ...", 502-4; id., "Towards the establishment of a UN Special Representative on Minority Issues: Drawing upon the experiences of the OSCE High Commissioner on National Minorities", 13(4) Helsinki Monitor (2002), 326-37; and Chesterman, "Minority Protection, .. ",14-6. 34 MRG, "Possible New United Nations Mechanisms ...", 6. 35 A similar proposal was also made in 1998 during the 4�' session and repeated in the next ses- sions.
36 MRG, "Possible New United Nations Mechanisms ...", 8. 37 Ibid., see further 8.
38 The observer for Switzerland stated that if the Working Group wishes to improve dialogue, more minority representatives need to be able to attend the sessions and more government observers need to be present. 39 See final report of the Working Group, 19 et seq. 40 These criteria and methods of work were adopted at the session of the Sub-Commission to be applied from the 10th session of the Working Group.
41 See further the final report of the Working Group, 21 et seq. 42 Unfortunately it was decided to have the CERD meetings in Wilson Palace instead of the Palais des Nations where the Working Group convenes, so it was less practical to attend both meetings. Working Group member Kartashkin attended a CERD meeting when the issue of non-citizen- ship was discussed and reported back to the Working Group. CERD decided on 2 March 2004 to establish a Working Group to draft a new general comment on non-citizens.
43 The Working Group on the Drafting of an Additional Protocol to the International Convention on Social, Economic and Cultural Rights took place in the same week, and attracted far more attention than the Working Group on Minorities. The Committee on the Rights of Migrant Workers and Families also held its first session this week. Most government observers were also occupied by preparing the sessions of the Commission on Human Rights which started its first session one week later. 44 See http://www.unhchr.ch/minorities/group.htm for the statements made.
45 An extended dialogue took place between the NGO and the government observer since the observer responded twice to statements made. The representatives and the observer also had contact outside the sessions to further discuss issues of concern. 46 The Crimean Tatars were deported under Stalin and as a consequence were deprived of their land.
47 Jose Bengoa, "Minorities and self determination", E/CN.4/Sub.2/AC.5/2004/WP.l. 48 MRG, "An Examination of Approaches by International Development Agencies to Minority Issues in Development", E/CN.4/Sub.2/AC.5/2004/WP.5. 49 Bengoa, "Minorities and self determination" ..., 5. 50 Ibid., 8.
51 See the statement by the Head of Administration of the government of the Aland Islands, Ms. Elizabeth Naucl6r, available from the author's files. 52 See Resolution 1334 (2003), based on the report of the Political Affairs Committee, rapporteur Andreas Gross, Doc. 9824, June 2003. 53 See PACE Doc. 9972 of 13 October 2003, and the statement by Naucler, 4. 54 Eide gave Bosnia as an example where three constituent people live together: Serbs, Croats and Bosniacs. However, many people do not want to be identified as such. Hadden gave a similar
example by referring to the Northern Ireland Peace Agreement that focuses only on Catholic or Protestant communities, thereby neglecting people who do not want to be defined as such, and neglecting new groups in Northern Ireland. 55 However, it was acknowledged that some agencies have attempted to give more attention to minorities such as the UNDP, Swiss Agency for Development and Cooperation, Inter-American Development Bank and the Swedish International Development Agency. 56 MRG, "An Examination of Approaches ...", 3. See also MRG's Briefing on Minority and Indig- enous Peoples' Rights in the Millennium Development Goals, May 2003.
57 See "Minorities and national human rights institutions", 9`" draft United Nations Guide for Minorities. 58 The Hague Recommendations regarding the Education Rights of National Minorities (1996), the Oslo Recommendations regarding the Linguistic Rights of National Minorities (1998), the Lund Recommendations on the Effective Participation of National Minorities in Public Life (1999) and the Guidelines on the Use of Minority Languages in the Broadcast Media (2003), at www.osce.org/hcnm/documents/recommendations. 59 For the opinions of the Advisory Committee on the Framework Convention for the Protection of National Minorities, see www.coe.int/minorities.
60 The results of the visit will not be discussed but for more information I refer to the draft report prepared by Asbjorn Eide, "Visit to Finland", 17-20 January 2004. The final version will be sub- mitted to the 56th session of the Sub-Commission.The result of the visit will serve as an impor- tant monitoring tool and therefore the Working Group urged other states to invite the Working Group to visit. The way Finland approached the visit must also be applauded. The government gave full media attention to the visit and facilitated an open dialogue with members of minori- ties, Working Group members and government representatives. 61 Tom Hadden, "International and National Action for the Protection of Minorities: The Role of the Working Group on Minorities", E/CN.4/Sub.2/AC.S/2004/WP3. 62 Ibid., 3. 63 Ibid., 7. 64 Ibid., 8.
65 Other issues that require further discussion include the extent to which it is permissible or desir- able to identify individual members of particular minorities and the criteria for establishing membership; the range of structures for ensuring effective political participation or autonomy for members of minorities and their representatives at national, regional and local levels; the impact of national development plans on minority communities and alternative approaches to the right of minorities to development; the relationship between the rights of minorities and of indigenous people; and the implications for conflict prevention and conflict resolution. Ibid., 8 et seq. 66 Ibid., 18-9. 67 Ibid., 19, emphasis added. 68 See for example Amnesty International v. Sudan, Comm. No. 48/90,50/91 52/91 and 89/93 (not dated) and Social and Economic Rights Action Center v. Nigeria, Comm. No.155/96,13-27 October 2001, ibid, 21. 69 "Minority Rights often involve highly political issues: the degree of autonomy which a territori- ally concentrated minority may seek; the degree of funding for minority schools, cultural events, etc.: or the decision as to which languages will form the official language of the state. None of these issues are susceptible to judicial resolution, even by reference to standards established in the minorities instruments. Indeed, there is emerging evidence that non-judicial bodies, capable of engaging in an ongoing dialogue as to the meaning of minority and peoples'rights, and their application in particular circumstances, are better placed to resolve minority issues than formal
adjudication bodies.", in Rachel Murray and Steven Wheatley, "Groups and the African Charter on Human and Peoples' Rights", unpublished paper. 70 See for example judgment of 31 August 2001, Case of the Mayagna Awas Tingrti Community v. Nicaragua; see further Tom Hadden, "International and National Action ...", 21. 71 'Ihe "Statement of Principles on Minority and Group Rights in South Asia" prepared by the International Centre for Ethnic Studies "could form the basis for discussions with national gov- ernments and the eventual preparation of a more formal instrument which the states in that region might ratify and implement.", ibid., 23. 72 Ibid. 73 See the different papers at http://www.unhchr.ch/minorities/ninth.htm. 74 Hadden, "International and National Action ...", 25.
75 See statement by Hadden "Recommendations for the future work of the Working Group". 76 MRG organizes training for NGOs one week prior to the Working Group session. This sugges- tion could be difficult to realize since the NGOs can neither afford to stay in Geneva so long nor to go twice, for the training and the session. In addition, some governments refuse to issue visas when they find out that an NGO will be reporting back to a L1N body. 77 The observer for Switzerland expressed his disappointment when he heard that a Swiss NGO had made a statement on the protection of minorities in Switzerland and more particularly regarding a Swiss law on family reunification. The observer was not in the room at that moment because of other obligations (the Swiss observer normally attends all working group sessions and actively participates in the debates). He commented that if he had known about the statement, he would have prepared a response.
78 All Working Group members critically assessed their own work, which could be an agenda item for future sessions. 79 The statement gives several concrete examples such as: "Our organization put our community's issue onto the international agenda and the Lands Minister had a meeting with us".
80 This part is extracted from the preliminary conclusions and recommendations obtained from the Working Group's Secretariat. The final version was not available at the time of writing this article but will become available at http://www.unhchr.ch/minorities/group.htm.
81 This was also recommended at the 9,h session but was not addressed at the 10`s session. 82 A more constructive attitude towards the Working Group of government observers is therefore necessary. The problem, however, is that many observers who attend the sessions are not familiar
with the topics discussed and first need to consult their governments before they can give a reac- tion which sometimes is not possible. 83 The 60the session was held from 15 March to 23 April 2004. 84 See Res.2003/50 and for the High Commissioner's report on minorities to the 60`" session of the Commission on Human Rights, E/CN.4/2004/75, 24 February 2004. 85 Ibid.,14. 86 See Press Release SG/SM/9126/Rev.l, statement of Kofi Annan at the Stockholm International Forum, 26 January 2004.
87 See press releases at http://www.unog.ch/news2/documents/newsen/sg04003e.htm. 88 Packer and Friberg suggest to establish a UN Special Representative on Minority Issues working from the UN headquarters in New York, and additionally, to establish a separate unit at the High Commissioner on Human Rights Office in Geneva led by a Special Advisor on Minorities, with
institutional links to the Special Representative in New York. This would ensure a proper coordi- nation between conflict prevention and human rights organs. See John Packer and Erik Friberg, "Genocide and Minorities: Preventing the Preventable", Briefing Minority Rights Group Inter- national, April 2004, 3. 89 See Res. 2004/51 of the Commission on Human Rights on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, 60`s session. 90 Ibid., para. 7. 91 Ibid., para. 10. 92 Ibid,1, 6'" heading.