Featuring
Dinah Shelton
Professor Emeritus at George Washington University Law School
Over the past twenty-five years, Article 27 of the International Covenant on Civil and Political Rights (ICCPR) has been invoked in more than a dozen individual complaints brought to the United Nations Human Rights Committee against states that have ratified the covenant and its Optional Protocol establishing the complaints procedure. These complaints have come from a wide variety of sources and have concerned interference with land and resources and restrictions on use of minority languages. Nordic indigenous Sámi have filed cases against Finland, Norway, and Sweden; Maori brought a complaint against New Zealand; Bretons against France; Sudetenland Germans against the Czech Republic; Afrikaaner and Khoi against Namibia; and indigenous groups have complained against Colombia and Canada. In nearly every case, the Committee has declared the complaint inadmissible or rejected it on the merits.
For minority groups, the Committee’s expansive interpretation of Article 27 through General Comment No. 23, issued in 1994, raised hopes that the UN system would provide them with legal recourse. According to the Comment,
…Culture manifests itself in many 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…The protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole.
There are several reasons why, despite this broad reading of the Article, members of minority groups have been unsuccessful in pressing their claims. First, many cases have been declared inadmissible for failure to exhaust local remedies. The ICCPR requires that all effective and available local remedies be exhausted, even if they are difficult and expensive to undertake. Thus, the Committee has required recourse to the prevailing legal system in a state even in the face of complaints that it deals unfairly with communal land tenure or nomadic lifestyles.
Second, the Committee has accepted without question the right of a state to file a reservation to Article 27, effectively excluding the minority rights contained therein. France filed a “declaration” at the time it ratified the ICCPR in which it asserted that Article 27 was inapplicable in the country because of its national laws on equality and nondiscrimination. The Committee held the declaration to be a reservation, noted that no states had objected to it, and concluded that it therefore lacked jurisdiction over all the Breton language cases brought to it. In effect, such reservations amount to a denial that minority groups exist because all individuals are treated with equal rights and freedoms. No allowance is made for cultural diversity and the right to be different.
Third, the Committee has set a high threshold for finding a violation. It is not enough that there is an impairment of a minority way of life; it should be a serious deprivation of cultural life. Thus, in Lánsman et. al. v. Finland (I), the Committee decided that Article 27 was not violated by the extent of stone-quarrying permitted by Finland in traditional lands of the Sámi. Moreover, the Committee determined that measures were taken to minimize the impact on reindeer herding activity and on the environment. In effect, the Committee interpreted the treaty to mean that measures whose impact amounts to a denial of the right to culture are not acceptable, but those that simply have a “certain limited impact on the way of life of persons belonging to a minority” do not violate the treaty.
In Diergaardt v. Namibia, the Committee judged for itself the link between an economic activity and the claim of cultural rights, determining that cattle herding by descendants of an Afrikaaner and Khoi community did not present the type of links protected as cultural rights. The Committee stated that “although the link of the Rehoboth community to the lands in question dates back some 125 years, it is not the result of a relationship that would have given rise to a distinctive culture.” While the community did have self-government over a period of time, this was not seen as being “based on their way of raising cattle.” Therefore, there was no violation of Article 27.
The Sámi cases suggest a fourth reason why applicants have failed to prove a violation. The Committee considered it significant that the state made efforts to consult the minority community and take their views into account in making its decision. The consultations had been extensive and resulted in some changes in the government’s plans, based on dialogue with leaders of the affected Sámi community. It thus appeared to the Committee that the dispute was as much between factions within the minority group as between the group and the majority represented by the government.
The Committee did not articulate any standards for determining whether the government had acted in good faith, but returned to the issue in the Maori complaint against the government of New Zealand. In Apirana Mahuika et. al. v. New Zealand the petitioners claimed violations of the rights of self-determination, right to a remedy, freedom of association, freedom of conscience, nondiscrimination, and minority rights as a result of New Zealand’s efforts to regulate commercial and noncommercial fishing after a dramatic growth of the fishing industry. The government and the Maori, whose rights are guaranteed by the Treaty of Waitangi, executed a Deed of Settlement in 1992 to regulate all fisheries issues between the parties. The authors of the communication represented tribes and sub-tribes that objected to the Settlement, contending that they had not been adequately informed and that the negotiators did not represent them.
The government acknowledged its duty to ensure recognition of the right to culture, including the right to engage in fishing activities, but argued that the Settlement met the obligation by balancing the needs of the majority and minority after good faith negotiations. According to the government, the system of fishing quotas reflected the need for effective measures to conserve the depleted inshore fishery. Thus, in imposing the quotas the government carried out its “duty to all New Zealanders to conserve and manage the resource for future generations…based on the reasonable and objective needs of overall sustainable management.” The Human Rights Committee decided in favor of the government, 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 concerning these measures and whether they will continue to benefit from their traditional economy.
The consultations undertaken by the government complied with this requirement because the government paid special attention to the cultural and religious significance of fishing for the Maori. Thus, the Committee evaluated both the process and the substantive balance between majority and minority interests.
Finally, the Committee has taken a strict view of what constitutes a minority within a state. For example, it has refused to view English-speakers in Quebec as a minority because they are part of the national majority in Canada even though they are a minority in Quebec. The Committee did find, however, that a measure requiring all commercial signs to be in French was a denial of freedom of expression to the English-speaking businessman. It is not clear how far the Committee will go in re-characterizing minority complaints as individual complaints involving violations of other rights under the Covenant. In the case of the signage, the practical results for the applicant were the same whether the case was won based on Article 27 (minority rights) or on Article 19 (free speech). By characterizing the case the way it did, however, the Committee avoided the prospect of looking within states at smaller geographic areas where the ethnic balance may be different from the country as a whole. The Committee might have felt that this was too intrusive in domestic matters, or that it would exacerbate tensions to call the majority a minority because of population distribution in particular areas.
In sum, the Committee has balanced the cultural and economic needs of the minority with respect for the majority’s laws and has unquestionably regarded the state as the representative of the majority’s decisions made through the democratic process. When it decides the merits of complaints, the Committee has assessed the impact on the minority group of the actions taken, the degree to which the state has consulted the group and attempted to mitigate damage, and the benefits to all those in the state, including the minority, from the actions taken. In general, it has found the state actions reasonable and the harm to the community insufficient to amount to a breach of cultural rights as guaranteed by Article 27. The Human Rights Committee also has restricted potential claims by minority groups through General Comment No. 23, where it provides its interpretation of Article 1 on the right of peoples to self-determination. In the Comment, the Committee concluded that the right of petition cannot extend to matters of self-determination because it is a right belonging to peoples, while only individuals can file complaints. This allows the Committee to avoid deciding matters of self-determination. Thus, despite the Committee’s broad definition of cultural rights in General Comment 23, it has chosen to limit claims of autonomy by minority groups, thus upholding the sovereignty and territorial integrity of states.
