I started this blog in part to air some of my frustrations at the limitations and ambiguities embedded within the European minority rights framework. However, I am not a minority rights sceptic. I became interested in minority rights acutely aware of what can happen when minority rights are not respected, and are indeed sometimes trampled over given my Northern Irish upbringing and my knowledge and understanding of events in the Balkans during my teenage years.
I was reminded of this when I read the so-called ‘Slovenian non-paper’ on ‘The Western Balkans – the Way Forward’ this week, essentially predicting the ‘dismembering’ of Bosnia and Herzegovina. I will leave analysis of the significance (or otherwise) of the ‘non-paper’ to those better versed in the politics of the region. However, the subsequent furore really brought home to me why minority rights, and making minority rights work, really matters. In earlier posts I have described some of my recent work considering the role of minority (or community) rights legislation in Kosovo, Bosnia and Herzegovina and North Macedonia. However, in this short piece I want to focus on a different angle – the uniqueness of the Council of Europe’s Framework Convention for the Protection of National MInorities as a regional minority rights treaty specifically focused on minority protection issues.
I have recently subscribed to the International Human Rights Law Reports, attracted by their coverage of decisions of both regional and international human rights bodies. One case that caught my particular interest was that of M.T. v. Estonia, 6 August 2020, Communication no. 64/2018. The application was lodged before the Committee on the Elimination of Racial Discrimination by M.T., an Estonian national of Russian ethnicity and a member of the group of ‘Old Believers’, that had rejected reforms that had taken within the Russian Orthodox Church. His complaint related to the refusal of the authorities to include his patronym on his identity card, despite his specific request for it to be included. This is a right expressly recognised in Article 11(1) of the Framework Convention for the Protection of National Minorities, which provides that: ‘The Parties undertake to recognise that every person belonging to a national minority has the right to use his or her surname (patronym) and first names in the minority language and the right to official recognition of them, according to modalities provided for in their legal system.’
The CERD Committee found the complaint inadmissible on the grounds that no concrete example was provided of the refusal putting the applicant in an unequal position with other nationals in relation to the enjoyment of his rights, or evidence of negative effects on his private relations with other members of either the Russian minority or of the Russian ‘Old Believers’ community (para 6.4). As David Harris has pointed out in his commentary, this was not an inevitable conclusion given the applicant’s claim that the refusal was contrary to ‘Russian traditions’ and therefore might have been considered discrimination in relation to the right of freedom of expression under Article 5 of CERD.
What is of particular interest to me in the case is that the applicant cited Article 11 of the Framework Convention for the Protection of National Minorities both in domestic proceedings and before the CERD Committee. In its response the State noted that the Framework Convention did not fall within the scope of the Convention or the competence of CERD and that there was no specific right in the Convention, including under Article 5, that would serve as grounds for his request (para 4.3). The Committee itself found that the applicant had failed to indicate which exact right had been violated (para 6.3). For me what this decision illustrates is the gap within international human rights law served by the Framework Convention. Rights such as the right to use a patronym might be considered to come within the category of ‘symbolic rights’, but are of fundamental importance to those belonging to minority groups.