U.N. PROTECTION OF MINORITIES & INDIGENOUS PEOPLES

The Protection of Minorities and Indigenous Peoples Respecting Cultural Diversity

I. Introduction

There have been recent developments in international law and politics which have influenced the legal protection of groups and under the auspices of the United Nations, the protection of indigenous peoples has made some progress.

The Declaration on the Rights of Indigenous Peoples, drafted in 1993, was adopted by the Human Rights Council in its first session in June 2006 and was forwarded to the General Assembly for adoption. This may also give rise to a further strengthening of the rights of indigenous peoples in treaty law.

Compared to this development, the instruments for the protection of minorities have not changed much the last decade. The Framework Convention for the Protection of National Minorities of the Council of Europe3 is still the most detailed legal instrument on the international level with the most effective system of implementation and monitoring.

Another development influencing the situation of groups is the growing importance of cultural diversity in international law. The notion plays a role in the debates on migration and pluralistic societies and in the debates on the relation between culture and trade. In treaty law, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005 paves the way for, at least, a change of interpretation of existing rules. The preamble affirms that “cultural diversity is a defining characteristic of humanity. Acknowledging cultural diversity between states or within a state encourages a different view on the protection of groups.

2. The Framework of the Protection of Groups

When the nation state developed, the human beings living in a state were seen under political criteria as a nation. In some state traditions the term “nation” carries connotations of a community shaped by common descent, culture and history and often by a common language as well.

If cultural and ethnic criteria are applied, the nation is understood as a homogenous social group shaped by solidarity and attached to a specific territorial homeland.

Nation can also be understood as a political community especially in states where the creation of the modern state developed in parallel to the building of a nation and where, therefore, the founding myth forced people together. In a nation state, different groups may exist but they are unified as a nation. The criteria of inclusion and exclusion enables the state to implement a differentiated legal order versus different persons. This view of the nation made the difference between majority and minorities possible and entailed the need to protect vulnerable groups.

As a consequence, the protection of minorities was for centuries an important challenge for domestic and international law. Many international conflicts arose because different groups fought each other on behalf of ethnic or religious differences.

After World War I, specific minority regimes of international law were implemented by the League of Nations. The peace treaties created new frontiers and new states and therefore new minorities. The protection of these minorities was guaranteed by the League of Nations but it failed because of external political developments.

Within the United Nations, the protection of minorities aims at fostering peace and security as well as the protection of human rights. In the last 30 years, the protection of indigenous peoples made its way onto the international agenda.

As a matter of fact, the problems of indigenous peoples were part of the discussions on minority rights. Therefore, the related matter of minority rights was the starting point for a legal analysis of the rights of indigenous peoples.

From the point of view of international law, indigenous people were a phenomenon for which specific legal criteria had not yet developed. However, the status of indigenous peoples cannot be treated as part of the protection of minorities because indigenous populations may even constitute the majority in a state and the developments in treaty law point clearly in the direction of a specific legal regime for indigenous peoples.

Nowadays, the rights of minorities and the rights of indigenous peoples should be seen as different legal subjects with overlapping aspects. Certain problems of protection are identical and some legal rules apply to both subjects. Both members of minorities or indigenous populations, may be especially vulnerable under the general human rights system, which entails specific legal regimes for the protection of children or the fight against gender discrimination. But the evolution of the relevant legal instruments points in different directions as the protection of indigenous peoples seems to be more dynamic than the protection of minorities in international law. In order to identify differences in the legal instruments, some fundamental notions will be analysed.

3. Notions

1. The Lack of Definition of a Minority

First of all, it should be clear which group in a state has the status of a minority. If a treaty confers a right to a minority, other kinds of groups cannot assume this right. Because of the very different points of view of states, there is no accepted definition of minorities in international law.

The former Special Rapporteur of the United Nations, Francesco Capotorti, developed a definition in 1979 which is the most prominent concept and the starting point of any discussion. According to his definition a minority is a group which is numerically inferior to the rest of the population of a state and in a non dominant position, whose members possess ethnic, religious or linguistic characteristics which differ 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.

As Capotorti developed his definition for a sub-commission of the former Commission on Human Rights of the United Nations, it is linked to article 27 of the International Covenant on Civil and Political Rights (ICCPR), the most prominent provision in international law concerning minorities. The beneficiaries of the rights under article 27 are persons belonging to “ethnic, religious or linguistic minorities”.

2. National Minorities and New Minorities

The notion of national minorities is necessarily discussed in the context of the above mentioned Framework Convention, which is applicable only to national minorities.

The government of the Federal Republic of Germany considers national minorities to be groups of the population which meet five criteria: Their members are German nationals; they differ from the majority population insofar as they have their own language, culture and history, meaning their own identity; they wish to maintain this identity; they are traditionally resident in Germany and they live in the traditional settlement areas.

National minorities are identified by the institutions of the nation state and they are defined by citizenship. However, any national minority has ethnic or linguistic characteristics differing from the majority.

It is an open question if the so called “new” minorities can be understood as minorities and if they are protected under international law. Because of world-wide migration there are asylum seekers, refugees or people looking for work in a state.

If a large number of them share tradition or religion they may try to be accepted as a minority in the state they immigrated to.

There are nearly three million people from Turkey who live in the Federal Republic of Germany. In Estonia there is a large group of people with ethnic roots in Russia. If these kinds of groups were seen as a minority, they could claim minority rights versus the host state. Recent developments in the United Nations point in the direction of an application of minority rights to “new” minorities, but with restrictions and modifications concerning the concrete contents of those rights. However, state practice on a large-scale cannot yet be observed.

3. Indigenous Peoples

Indigenous peoples are peoples who inhabited a land before it was conquered by other peoples or societies during colonization by force or by treaty and they consider themselves distinct from the society currently governing those territories.

More generally, indigenous peoples are composed of the existing descendants of the peoples who inhabited the present territory of a country wholly or partially at the time when persons from a different culture or ethnic origin arrived there from other parts of the world.”

Still there is no generally accepted definition. However, the importance of historical and cultural traditions and the crucial character of the element of distinctiveness can hardly been contested. The Indian communities in the United States of America, the Inuit in Canada or the Aborigines in Australia are seen as indigenous peoples in this sense.

Those peoples often were prosecuted by the invaders and some of them still have to face prosecution and discrimination. An indigenous people may be a minority, but it is not necessarily a national minority because the territory of settlement may not be identical with state frontiers. As a consequence, an indigenous people can only rely on minority rights if its role as a minority is accepted.

4. Cultural Diversity

Cultural diversity generally means the situation where different societies or parts of a society have different cultural traditions and values. In a narrow meaning it is understood as a counterpart to economic globalization in the context of culture and trade.

Using the notion of “culture” implies a multi-level approach reflecting sociological, economic, historical, political and legal aspects. From the legal point of view, this makes a definition and the application of the notion difficult. The maintenance of cultural differences as such is not a new phenomenon in international law. UNESCO pursues the purpose to disseminate knowledge about and among the civilizations of the world.

In this context the organization seeks to preserve the cultural heritage of all nations as part of its general tasks and article 1 (3) of its Constitution refers to the “fruitful diversity of the cultures”. According to its preamble, the Framework Convention for the Protection of National Minorities of the Council of Europe understands cultural diversity as a “source and a factor, not of division, but of enrichment for each society”.

Also on the regional level, the European Charter for Regional or Minority Languages of the Council of Europe in its preamble mentions cultural diversity as a crucial element for Europe, but stresses in the same sentence that national sovereignty provides for the frame of this diversity.

In this general meaning, the notion of cultural diversity, having a more or less positive connotation, aims to preserve a situation and to achieve a goal; therefore the promotion of cultural diversity implies legal and political consequences. From the point of view of diversity, developments of convergence of cultures are seen from a critical perspective.

Nevertheless, cultural homogeneity may also have positive aspects connected to the problem of self-determination and the question of conflicts and the reasons for them. As a consequence of personal mobility and technical devices like satellite broadcasting and Internet, allowing easy access to information world-wide, the wish to preserve cultural traditions as part of a certain identity entails the need to take measures for the maintaining of cultural diversity.

Diversity may exist between states, because culture is part of state identity. However, cultural diversity may also exist within a state, because culture is never of a monolithic character. Legal questions especially arise if the cultural diversity within a state is linked with ethnic, linguistic or religious diversity because then cultural diversity influences the protection of minorities or indigenous peoples.

These questions are taken into account by article 27 ICCPR which enshrines the right of minorities to enjoy their own culture. The Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005, based on previous works within the organization, is the most prominent expression of the developments to promote cultural diversity on the international level.

In the preamble, cultural diversity is seen as “a defining characteristic of humanity” but in the provisions of the treaty it comes down primarily to diversity in the audio-visual sector. The so-called definition in article 4 of the Convention refers to “the manifold ways in which the cultures of groups and societies find expression” and can be qualified as a general description of the problem. It is not even a definition useful for the purposes of the Convention. In the text of the Convention, the term “cultural expression” is used whereas “cultural diversity” is barely mentioned. There even seem to be differences between the states concerning the meaning and backgrounds of the notions and the relationship between culture and economy.

IV. The Universal Protection of Minority Rights

In history, the protection of minorities was closely linked to the self- determination of peoples. States are reluctant to acknowledge rights of minorities because they try to avoid risks for their territorial integrity. The fight of minorities for their rights has given rise to armed conflicts. These dangers and experiences made minority protection one of the most complicated subjects of international law.

There have been many political discussions in different international organizations especially in the United Nations. As a result, different treaties and institutions have been created in order to organize the protection of minorities. In modern international law the protection of minorities is part of the protection of human rights.

The fight for individual human rights also concerns the fight for the individual rights of persons belonging to a minority. The very special approach of minority protection is linked with the more general problem of the right of groups.

The Permanent Court of International Justice has already identified the two crucial points of minority protection in its Advisory Opinion on minority schools in Albania:

• “The first is to ensure that nationals belonging to racial, religious or linguistic minorities shall be placed in every respect on a footing of perfect equality with the other nationals of the State.

• The second is to ensure for the minority elements suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics”.

The second aspect can be seen nowadays as part of the discussion on autonomy and diversity in a society. The growing importance of the subject of cultural diversity is linked to the status and role of groups in a state and those groups may be minorities.

The law of minority protection is intertwined with the historical and sociological backgrounds of each situation.

Demographic change influences as one factor the protection of minorities because a minority may become a majority or migration may be accelerated. Therefore anthropological, philosophical and sociological reasons are part of the legal reasoning in cases of minority protection.

An interdisciplinary approach is necessary, otherwise conflicts arising because of the diversity of cultures and nations cannot be solved.

1. Specific Treaty Provisions

The core of the human rights of minorities is the principle of non- discrimination. It was strengthened by the International Convention on the Elimination of All Forms of Racial Discrimination of 1965 (CERD). The rules of the Convention are applicable to all members of ethnic minorities. However, the Convention also admits that special measures may be necessary to secure adequate advancement of certain racial or ethnic groups.

The International Convention on the Rights of the Child (CRC), has been ratified so far by 193 states. Its article 28 guarantees the right to education, based on the equality of chances. This may be understood in a way to enhance the position of children, who are members of a minority, namely because article 29 of this Convention stipulates that one aim of education should include the respect of cultural identity. A specific provision of minority protection is article 30 CRC which is similar to article 27 ICCPR.

2. The Declaration 47/135 and the Commentary

The General Assembly adopted the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities in 1992. The Declaration puts an emphasis on state obligations versus minorities. Although the Declaration does not define a minority, it acknowledges a difference between “National or Ethnic, Religious and Linguistic Minorities”.

The notion of “national minority is important in the European instruments, namely the mentioned Framework

Convention, but not in the universal instruments. As a consequence, the question of citizenship does not play a role for the rights of a person belonging to a minority under article 27 ICCPR and the Declaration.

The General Assembly stressed the relationship between minority protection and the protection of human rights. According to the Declaration, the realization of rights, enjoyed by persons belonging to a minority, contributes to political and social stability in the state they live in.

The identity of minorities should be protected. The Declaration claims active measures of a state in favour of the protection of minorities. The Declaration is not binding, but it shows that the majority of states accepts that the individual character of minority rights entails duties of the state to protect the group as a whole because the group is formed by persons entitled with minority rights. This may influence the interpretation of article 27 of the ICCPR.

As a guide to the understanding and the application of the Declaration, the Working Group on Minorities the subsidiary organ of the Sub-Commission on the Promotion and Protection of Human Rights prepared a Commentary. It was adopted at its 10th session, being originally drawn up by its former Chairperson Asbjorn Eide.

The Commentary on the Declaration was finalized by the Secretary-General after a broad discussion and took into account the comments of governments, intergovernmental and non-governmental organizations and individual experts. Therefore it is an important document reflecting the discussions on the protection of minorities in the United Nations but also relating to the protection of indigenous peoples insofar as they may fall under the provisions on minorities. The text of the Commentary will be part of the United Nations Guide for Minorities.

The Commentary provides for a wide scope of application of the Declaration. It comprises various minorities including new minorities but the strength of the entitlements may vary.

“Those who live compactly together in a part of the State territory may be entitled to rights regarding the use of language, and street and place names which are different from those who are dispersed, and may in some circumstances be entitled to some kind of autonomy. Those who have been established for a long time on the territory may have stronger rights than those who have recently arrived.

This approach paves the way for a differentiated and adequate protection of different minorities respecting culture and tradition.

Respecting the reluctance of states in recognizing true collective or group rights, the Commentary holds that the right to self- determination as a group right, guaranteed by common article 1 of the two international Covenants on Human Rights, does not apply to minorities.

Minority rights are individual rights. Indigenous peoples have particular concerns. Persons belonging to indigenous peoples may claim the individual rights of minorities, as has been done by persons submitting Communications before the Human Rights Committee. Referring to article 3 of the Declaration, according to which that persons can exercise their human rights both “individually as well as in community with other members of their group”, be it through associations, cultural manifestations or educational institutions. This does not concern the individual character of the human rights.

3. Article 27 ICCPR and the General Comment

After World War II the United Nations decided on an obligatory provision as late as 1966. Article 27 of the ICCPR is still the most important obligatory provision on the protection of minorities on an universal level. Although there are some points in the provision which are not totally clear, its mere existence helps to preserve minority rights.

The scope of article 27 and its consequences are the object of ongoing discussions. First of all, the definition of a minority is not clear and this lack of clearness reduces the effectiveness of article 27 ICCPR. But the importance of article 27 lies in the fact that social criteria are acknowledged as being part of the concept to define a minority.

The Covenant declines the concept of assimilation and grants people, belonging to a minority, individual rights. The crucial point is whether there are collective rights guaranteed by the provision.

The provision of article 27 stresses the criteria of culture, religion and language as the most important criteria for a minority. This is a success for minority protection.

During the discussions on this provision in the 1960s, states like Australia, the United States of America and Chile fought for their concept of assimilation because they see themselves as immigration states. The rights of minorities cannot be accepted if a state denies the existence of a minority itself. The Australian delegate in the former Commission on Human Rights stated during the discussion on article 27 that there are no minorities in Australia. He argued,

“There were, of course the Aborigines, but they had no separate competing culture of their own, for as a group they had only reached the level of food gatherers.”

This remark reveals a discriminatory view on certain groups which is contrary to the idea of the prohibition of discrimination in human rights. Nevertheless, there are still states holding the view that there are no minorities on their territory, Turkey being such a case. It denies the character of the Kurds as a minority.

Also France does not apply article 27 of the Covenant, because article 1 of the French Constitution declares France as an indivisible Republic. Numerous cases were submitted by French citizens of Breton ethnic origin, but because of the French reservation to the ICCPR that article 27 is not applicable so far as the Republic is concerned, the respective Communications were rejected by the Human Rights Committee as inadmissible.

Other cases from Europe concerned the Sami. In Ivan Kitok v. Sweden the Committee affirmed that a traditional economic activity and way of life such as reindeer husbandry falls within the scope of article 27 since it belongs to the culture of the Sami.

In the context of minority rights, a number of the most prominent individual complaints under the Optional Protocol claiming rights under article 27 came from Canada. In the well-known case Lovelace v. Canada, the Committee decided that the rights of a woman to access to her native culture and language “in community with the other members”, can only be realized in the community within the Indian reserve and the complainant was attributed a right to residence under article 27.

The Communication in the case Mikmaq Tribal Society v. Canada related to the right of self-determination but it was rejected as inadmissible. The Communication submitted by Chief Bernard Ominayak of the Lubicon Lake Band in the famous case Lubicon Lake Band v. Canada led to a decision of the Committee, which held that the rights enshrined in article 27 include the right of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong. The threatening of the way of life of the Lubicon Lake Band constituted a violation of article 27.

On behalf of the protection of culture and the traditional way of life of indigenous peoples the Committee established in the case Länsman v. Finnland No. 1 a combined test of meaningful consultation of the group and sustainability of the indigenous or minority economy.

In 1994, the Human Rights Committee approved General Comment No. 23 (Rights of Minorities) on article 27 ICCPR.

First of all, the Committee held that article 27 recognizes a right which is conferred to individuals belonging to minority groups (para. 1). However, the Committee did not restrict the rights of minority protection to persons possessing the citizenship of the host state (para. 5.1).

Referring especially to indigenous peoples, the Committee noted that the preservation of their use of land resources could become an essential element in the right of persons belonging to such minorities to exercise their cultural rights. The enjoyment of these rights may require positive legal measures of protection (para. 7). Under the regime of article 27, the Committee strives for a wide scope of application. Relating to its jurisdiction, collective aspects are closely connected with the rights of indigenous peoples.

4. Fundamental Elements of the International Protection of Minorities

The protection of minorities is part of the protection of human rights. The individual rights of persons belonging to a minority are not doubted. As with human rights in general, there is still much to do to achieve them. The uniformity of human rights protection and the principle of non-discrimination put pressure on the existing differences.

Nonetheless, exactly these differences between groups in a society make the difference between majority and minorities. What is doubtful is which groups have which rights as a minority.

In spite of the existing treaties on the universal and regional level the protection of minorities is not completely satisfactory. The diversity of minorities and their cultures entails a diversity of problems arising from very different situations. Each situation and each conflict needs an in depth analyze of the historical, political and social background. An interdisciplinary approach may help to find specific solutions for specific problems.

In the cases of the Human Rights Committee concerning Canada, persons belonging to an indigenous people claimed minority rights. The most prominent cases under article 27 which were decided by the Human Rights Committee related to persons specifically belonging to indigenous peoples. The complainants claimed their right of self- determination as a people and were attributed minority rights.

They wished to preserve cultural diversity and autonomy. This claim could be realized within the human rights system by applying article 27. Indigenous peoples may rely on article 27 to defend their way of life and the specific characteristics of their group.

The international protection of minorities works on solid grounds. It may be influenced by the concept of “cultural diversity” insofar as the interpretations of notions like “culture” in article 27 ICCPR may undergo a progressive evolution.

As the general concept of “cultural diversity” is not yet clear, the protection of minorities should not be subject to far reaching changes as long as the direction of the changes cannot be identified. The instruments on minorities have not been modified but the existing instruments at least grant a safe standard of protection under international law.

Careful modifications may refer to the application of the existing provisions. Recent international documents suggest a system of gradual protection. The Commentary to the above mentioned Declaration on Minorities includes all relevant groups in the international protection of minorities but tends to grant more rights to “old” minorities.

However, according to these ideas new minorities fall under the minority protection of international law. This extension of the scope of minority protection works only on the basis of an individual human rights approach. There will be a reluctance of states to accept the concept of conferring rights to further groups if these rights can be interpreted as collective rights for the group. Different minorities have different kinds of needs and claim different rights.

5. The Protection of Minorities in Europe

1. The OSCE and the High Commissioner on National Minorities

At a regional level, protection of minorities is part of the work of the Organization for Security and Cooperation in Europe (OSCE).

In 1992 the OSCE installed a High Commissioner on National Minorities (HCNM). His task is to prevent conflicts. The HCNM is part of the system of cooperation and consultation of the OSCE Member States, dealing with the legal and political situation of national minorities as a whole.

In practice the High Commissioner concentrates his work at first on the use of minority languages. In 1994, the Council of the Baltic Sea States (CBSS) created a Commissioner on Democratic Institutions and Human Rights including the Rights of Persons belonging to Minorities. Part of his mandate is to examine cases of the violation of individual rights, whereas the HCNM is only entitled to examine the general situation of a minority. The Office of Democratic Institutions and Human Rights in Warsaw (ODIHR) established a Roma Contact Point, whose work is supported for example by the Federal Republic of Germany.

2. The Council of Europe and the European Court of Human Rights

In Europe, there are different legal instruments protecting the rights of minorities and their members. The European Convention on Human Rights (ECHR) is the most effective instrument for the protection of human rights in Europe. As the protection of minority rights is part of the protection of human rights, minorities may refer to human rights granted by the European Convention.

A religious minority can claim a violation of the freedom of religion (article 9 ECHR). Persons belonging to a minority can put forward the right to privacy (article 8 ECHR) with the argument that national legislation restricts the use of the minority language.

The prohibition of discriminations in article 14 ECHR contains as forbidden criteria, among others, the fact that a person belongs to a national minority.

In 1968, the European Court of Human Rights had to decide on the use of minority languages in Belgium. The Court held that different treatment was possible, but it may amount to a prohibited discrimination when there is no reasonable and objective justification for it.

As there was no specific provision on minorities, the Court had to tackle minority problems under different legal aspects. In the case Gorzelik and Others v. Poland the Court affirmed that under the ECHR group rights exist. The freedom of association guaranteed by article 11 ECHR is applicable if a group is denied registration as a minority in a state register, but the state enjoys a wide margin of appreciation in deciding if restrictions are necessary to protect national and public order.

Pursuing its general goals, the Council of Europe enacted treaty law on minorities. The European Charter for Regional or Minority Languages of 1992 came into force 1998. It has been ratified by 22 states. It claims the acknowledgement of regional or minority languages and contains provisions on measures fostering the use of these languages.

The implementation of provisions on language depends on state traditions and proves to be a sensitive matter which explains the small number of ratifications.

The French Constitutional Court held in his decision of 15th June 1999 that some provisions of the Charter contradict the French Constitution. In article 1 of the French Constitution it is stated that the language of the Republic is French. The use of other languages in private and public life would violate the Constitution.

A complicated problem is the prohibition of political parties representing a minority. The European Court of Human Rights in Strasbourg had to decide on several Turkish cases. The Turkish government defended the secularity character of the state against Islamic groups which organized political parties. In this context, the government prohibited the so-called Welfare Party, a political party aiming at the implementation of its view of the Islam in the Turkish society by means of violence.

The European Court of Human Rights held that the prohibition of this political party did not violate the ECHR.71 This case may be the nucleus for the development of a human rights system respecting cultural diversity because it shows limitations of diversity which a state can realize in accordance with human rights.

3. The Framework Convention

The Council of Europe has agreed on a treaty which is the most important one in the protection of minorities in Europe. The Framework Convention for the Protection of National Minorities of 1995 came into force in 1998. It was ratified by 39 states. Member States are for example Estonia, Croatia, the Ukraine or the Russian Federation, but not Andorra, France and Turkey.

The Member States have declared in the Convention that the protection of national minorities is part of the international protection of human rights. Persons belonging to a national minority are guaranteed individual freedoms like the freedom of opinion and the freedom of religion.

States are obliged to enable persons belonging to national minorities to develop their culture and to uphold essential elements of their identity. Minority languages can be used and the right to have a name in the minority language is granted.

Member States have to report on the progress they make in implementing the rights of the Convention. The Convention does not define the notion of national minority. The Member States define it themselves.

Germany has declared that there are only two national minorities: the Danes and the Sorbian Nation, and Germany applies the Convention to the German Frisians, Sinti and Roma. However, the Convention tries to foster measures of states in

favour of minorities and aims at an intercultural dialogue.

According to article 5 of the Framework Convention, the State Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will. The Explanatory Report to the Convention holds that this provision does not exclude measures of integration but aims at ensuring that national minorities develop their culture and preserve their identity (Explanatory Re- port No. 42).

According to article 3 para. 2 of the Framework Convention, persons belonging to national minorities may exercise the rights individually as well as in community with others. Following the concept of article 27 ICCPR, collective rights are not expressly acknowledged. The Explanatory Report states that the possibility of joint exercise of the Conventional rights is recognized “which is distinct from the notion of collective rights” (Explanatory Report No. 37).

4. Fundamental Elements of Minority Protection in Europe

The scope of application of the Framework Convention is restricted to national minorities named by the states. The detailed protection of a specific minority depends on municipal law. Of course, the national regimes on the protection of minorities are different. The state obligations flowing from the Convention are of crucial importance for minorities.

The Framework Convention builds a progressive system for the protection of minorities which possesses collective elements. Nevertheless, the underlying concept of the Convention aims at the protection of individual rights. As a consequence of the prohibition of assimilation, minority protection in the Framework Convention is primarily but not exclusively understood as the protection of individuals belonging to a minority. In the monitoring system, collective aspects play an important role.

With respect especially to article 5 of the Convention, the Advisory Committee refers in its remarks to the maintaining of the culture of groups. In this context, the Advisory Committee tries to protect cultural diversity. However, the relevant remarks concern primarily the traditional way of life of indigenous peoples like the Sami.

VI. The Protection of the Rights of Indigenous Peoples

The protection of indigenous peoples is a rather recent issue of international law but is a fast developing one. The legal regime of indigenous peoples has developed into a specific category, distinct from the protection of minorities.

According to the Commentary to the UN Declaration on Minorities, a distinction is drawn between the rights of persons belonging to minorities and those of indigenous peoples.

Rights of persons belonging to minorities are individual rights, where as rights of indigenous peoples can also be collective rights. The difference to minority protection is that indigenous peoples do not primarily fight against discrimination but fight for a high degree of autonomous development. According to their interest of survival as a group, indigenous peoples must not be integrated into the majority society.

Indigenous peoples number roughly some 300 million persons but nevertheless they are vulnerable. They need protection by the international community and by the territorial states. There are many aspects influencing the protection of indigenous peoples like human rights, self-determination, activities of international organizations or the role of non-governmental organizations and of the civil society in law- making and decision-making.

A cross-over perspective is necessary, integrating aspects of sociology and history, religion and economy, an- thropology and other sciences in order to identify the beneficiaries and addressees of rights or the content of those rights. The right to land or property rights are as fundamental for indigenous peoples as the right to economic and cultural self-determination. Each case or situation necessitates a multi-perspective approach to come to concrete legal or political results.

The rights of indigenous peoples have global, regional and national dimensions. In a concrete situation, the applicable rights and their scope depend on the interaction of those dimensions. Specific regimes of the protection of indigenous peoples are installed by the national law of some states.

The United States of America relied in its last census on the self-identification of groups which are categorized as six basic races: Whites, Blacks, Asians, American Indian/Alaskan Natives, Native Hawaiians/Other Pacific Islanders and “Some Other Race”, adding His- panics as an ethnic group and conferring specific rights to specific groups.

In Canada, the Inuit are granted autonomy and their rights as a group are guaranteed by the Canadian government. These rights also concern the exploitation of resources like oil, gold or similar raw mate- rials. In November 2005, the Canadian Federal Government and the provinces and territories concluded a treaty with the so called First Nations and Inuit, promising them 5 billions Canadian Dollars (about 3.65 billion Euros). The funding is intended to improve the living situation in the reserves.

1. Selected Legal Instruments

Persons belonging to indigenous peoples have the interest of enforcing individual and collective rights.86 Apart from the general system of human rights protection of the Covenants and article 27 ICCPR,87 various legal instruments may effect the rights of indigenous peoples. Those instruments form a body of conventional norms which is joined by developing customary law.

On the international law level a measure of protection for indigenous peoples was developed. An early legal instrument concerning indigenous peoples was the ILO Convention No. 107 of 1957 Concerning the Protection and Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries.

The Convention was formed by a paternalistic approach which was heavily criticized and this criticism was supported by the process of decolonization. This first Convention was replaced by ILO Convention No. 169 of 1989 Concerning Indigenous and Tribal Peoples in Independent Countries. Convention Nr. 107 is still the main instrument on the global level relating to indigenous peoples, but it is ratified by only a small number of states.

In the special context of the fight against racial discrimination there are also documents on and guarantees for indigenous peoples. CERD applies to members of indigenous peoples. The treaty-body of this Convention, the Committee on the Elimination of Racial Discrimination adopted a General Recommendation on the rights of indigenous peoples. In this Recommendation the Committee condemned any discrimination against indigenous peoples and called, in particular, upon states to respect the distinct culture and to ensure that indigenous peoples could exercise their rights in order to practice and revitalize their cultural traditions and customs.

The focus lay on the prohibition of unequal treatment but also gave states obligations to en- able indigenous peoples to preserve their own language and culture.

2. UN Activities and the Draft Declaration

Within the frame of the United Nations numerous activities in favour of indigenous peoples were put into place. In 1990, the General Assembly proclaimed 1993 as International Year for the World’s Indigenous People and decided on a first draft of a Universal Declaration on the Rights of Indigenous Peoples. An important result of this year was the awareness for the necessity of an ongoing process of discussion. By A/RES/48/163 of 20 December 1993 the General Assembly declared the Decade of the World’s Indigenous People. With A/RES/50/157 of 21 December 1995 a working program was approved. The Decade was closed in December 2004.

A Permanent Forum on Indigenous Issues was established to provide for a forum for discussion where the indigenous peoples themselves could adequately present their interests. Its 16 members are independent experts including eight indigenous experts. In fact, the main task of the Forum is to analyze whether states live up to the Declaration on the Rights of Indigenous Peoples.

The General Assembly also established a Voluntary Fund for Indigenous Populations. The purpose of the Fund is to assist representatives of indigenous communities and organizations to participate in the sessions and meetings of UN institutions, dealing with indigenous issues, by providing them with financial assistance, funded by means of voluntary contributions from governments, non-governmental organizations and other private or public entities.

In its session in June 2005, the Board of Trustees approved a total of 60 grants, a sum of US$ 280,100,00, to representatives of indigenous communities.

The issue of indigenous peoples has been integrated in the work of organizations like WIPO or institutions like UN Habitat. There is a growing awareness of the specific problems of indigenous populations. But these results only concern the institutional frame within the UN system.

In fact, the situation of the indigenous peoples themselves has not been improved. The report of the coordinator of the Decade acknowledges that indigenous peoples in many countries continue to be among the poorest and most marginalized. In many countries their living conditions have not improved during the Decade.

The official evaluation of the Decade of the World’s Indigenous People has not yet been concluded but in his preliminary review the Secretary-General noted advances in the UN system. New institutions have been established in order to favour the rights of indigenous populations, e.g. the establishment of the Permanent Forum on Indigenous Issues and the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People by the former Commission on Human Rights.

This represented further progress for indigenous issues within the United Nations.

From a legal and juridical point of view, an important goal of the Decade of the World’s Indigenous People, which was not achieved, was the adoption of a Declaration on the Rights of Indigenous Peoples. The former Commission on Human Rights established already in 1995 a working group with the task of reviewing the Draft Declaration on the Rights of Indigenous Peoples, proposed by the Sub-Commission. In May 2004, only two articles of forty five had been adopted at first reading and in view of the slow progress, the Commission at its 2004 session recommended that additional meetings be held. The finalization of the project was one part of the goals of the International Decade. How- ever, the Decade ended in 2004 without any success in this respect.

Progress was finally achieved within the recently installed Human Rights Council, replacing the Commission on Human Rights. As mentioned the Council adopted the text of the Declaration. It contains wide-reaching guarantees for indigenous peoples which are not yet part of customary or treaty law on the international level.

In the meantime, single guarantees may be at least candidates for customary law, especially aspects of the right to the use of land. In the Declaration, the legal personality of indigenous peoples is recognized and their territorial security is guaranteed. Various provisions refer to the protection of their cultural life and identity. Although states have objected to the establishment of collective human rights, some provisions of the Declaration can only be exercised by an indigenous people collectively.

3. Fundamental Elements of the Protection of Indigenous Peoples

The crucial point of the rights of indigenous peoples is their capacity for claiming the right to self-determination. If they are attributed this capacity they would be entitled to put forward rights to autonomy entailing the danger of secession. The standard of protection of indigenous peoples is based on a combination of legal instruments and customary international law. Wiessner concludes this in his in-depth analysis by stating:

• “First, indigenous peoples are entitled to maintain and develop their distinct cultural identity, their spirituality, their language, and their traditional way of life.

• Second, they hold the right to political, economic and social self-determination, including a wide range of autonomy and the maintenance and strengthening of their own system of justice.

• Third, indigenous peoples have a right to demarcation, ownership, development, control and use of the lands they have traditionally owned or otherwise occupied and used. Fourth, governments are to honor and faithfully observe their treaty commitments to indigenous nations.”

This far-reaching standard is not consented to as a whole in international law but it marks the crucial points of protection. As an elementary part of protection, the cultural autonomy of indigenous peoples has to be guaranteed by the state. This contributes to the cultural diversity within a state. The protection of indigenous peoples guarantees the protection of cultural diversity.

VII. Cultural Diversity of Groups

Cultural diversity is part of the framework which is necessary to guarantee the identity of groups of a distinct character in relation to other groups in a society or in other societies. To preserve the identity of a group can be an issue of international law. The rights related to cultural identity are of special importance for minorities and indigenous peoples.

The protection of indigenous peoples is a problem of striving for exclusion and preventing inclusion, whereas the protection of minorities is often a problem of striving for inclusion and preventing exclusion.

Indigenous peoples live apart from the society in their traditional territory; as a consequence there is no discussion about integration. Minorities live in the society and contribute to its cultural richness. They form part of it, but in many cases nevertheless, want to keep their identity; as a consequence the intensity of their integration is a crucial point of discussion.

As a result of the UNESCO Convention of 2005, the concept of cultural diversity is implemented in international law. However, its con- tent is not yet clarified. The main field of application in treaty and statutory law is international economic law, in which cultural diversity provides for a corollary of globalization.

Diversity of cultures in a more sociological sense can be found in the approach of UNESCO promoting a general approach but still linked to the specific protection of cultural goods and services in international trade. This aspect of cultural diversity may be the starting-point for an influence of the notion on the situation of groups.

The idea of cultural diversity in this general meaning may collide with certain approaches of integration. There is a fundamental difference between assimilation and diversity. The government of a state may try to integrate immigrants in a way that they change their identity.

In recent times, this was the way the American Indians or the old nations in Australia were treated. Concerning “new” minorities the problem of integration into society leads to the question of identity.

Measures for maintaining cultural diversity may contribute to the upholding of group identity. This is also the case if the narrow concept of cultural diversity is applied because the cultural goods and services of the groups enjoy a certain protection.

Understanding diversity in a wider sense leads to the protection of culture and tradition of the group in general and may amount to state obligations for the protection of groups. However, under current international law state obligations mainly arise from human rights instruments, especially from article 27 ICCPR.

Relating to the protection of indigenous peoples, economic, social and cultural rights play a central role. The preamble of the Declaration on the Rights of Indigenous Peoples affirms that all peoples contribute to the diversity and richness of civilizations and cultures.

As a consequence of the underlying approach of collective protection, indigenous peoples claim religious or cultural traditions and need access to social welfare systems or adequate housing. They want to uphold their identity as a group.

Minority protection is based on the principle of non- discrimination. The focus lies on individual freedoms. In state practice, minority protection is realized in most cases by granting individual freedoms to persons belonging to a minority. The promotion of minority rights relies on the strengthening of state obligations towards minorities.

VIII. Conclusion

The protection of minorities as a legal issue works in the frame of the general system of human rights protection, but a progress in the direction of a general improvement of the situation of minorities as a group can hardly be recognized. As part of the protection of human rights the contents of minority protection in universal international law has been individualized.

This process has led to the application of the general rules of human rights protection on persons belonging to a minority without regularly taking into account the peculiarities of the protection of a group. International law will contribute to the vanishing of the protection of differences if specific legal regimes are not developed. The most effective existing regime is the European Framework Convention.

However, the advantage of this process lies in the application of the human rights enforcement system, which in spite of its weaknesses, works in favour of the realization of minority rights. In the context of this system, the principles of non-discrimination and individual freedoms are guaranteed for persons belonging to a minority.

The common enforcement of individual rights by various persons is accepted. But the exercise of rights in community with others does not mean that collective rights are acknowledged. Typical collective aspects like preserving the collective identity of a group are neglected by the focus of minority protection on subjective rights.

As a consequence, the chances to maintain cultural diversity through the international law of minority protection are diminishing.

Affirmative action and the maintenance of differences between groups are acknowledged in the context of indigenous peoples. This is one of the reasons for the growing importance of indigenous issues in international law. Most of the prominent cases in which article 27 ICCPR was applied are cases concerning indigenous issues.

The system of the protection of minorities in international law contains the instruments to prevent cultural diversity from disappearing, but the relevant instruments are primarily used in favour of indigenous peoples. The protection of indigenous people is about to become the decisive factor for the promotion of collective rights and group rights.

Persons belonging to a minority enjoy individual human rights which may be exercised collectively. The specific granting of collective rights to minorities can be only rarely observed in state practice or treaty law. But a collective approach is realized in favour of indigenous peoples who enjoy benefits as a group, not only as an assembly of per- sons realizing their individual rights.

Therefore, the general concept of cultural diversity as respecting different cultural traditions and values of different groups is closer to the international protection of indigenous peoples than to the protection of minorities. Persons belonging to minorities, however, are entitled to the right to enjoy their own culture which may entail the fostering of cultural diversity.

At the heart of the matter, the specific legal regime for indigenous peoples applies to the cases of group protection whereas the systems of minority protection apply to the protection of individual rights. The development and promotion of safeguards against the vanishing of cultural peculiarities of groups can result primarily from the protection of indigenous peoples.

Framework Convention for the Protection of National Minorities

Explanatory Report

Background

1. The Council of Europe has examined the situation of national minorities on a number of occasions over a period of more than forty years. In its very first year of existence (1949), the Parliamentary Assembly recognised, in a report of its Committee on Legal and Administrative Questions, the importance of "the problem of wider protection of the rights of national minorities". In 1961, the Assembly recommended the inclusion of an article in a second additional protocol to guarantee to national minorities certain rights not covered by the European Convention on Human Rights (ECHR). The latter simply refers to "association with a national minority" in the non-discrimination clause provided for in Article 14. Recommendation 285 (1961) proposed the following wording for the draft article on the protection of national minorities:

"Persons belonging to a national minority shall not be denied the right, in community with the other members of their group, and as far as compatible with public order, to enjoy their own culture, to use their own language, to establish their schools and receive teaching in the language of their choice or to profess and practise their own religion."

2. The committee of experts, which had been instructed to consider whether it was possible and advisable to draw up such a protocol, adjourned its activities until a final decision had been reached on the Belgian linguistics cases concerning the language used in education (European Court of Human Rights. Judgment of 27 July 1968, Series A No. 6). In 1973 it concluded that, from a legal point of view, there was no special need to make the rights of minorities the subject of a further protocol to the ECHR. However, the experts considered that there was no major legal obstacle to the adoption of such a protocol if it were considered advisable for other reasons.

3. More recently, the Parliamentary Assembly recommended a number of political and legal measures to the Committee of Ministers, in particular the drawing up of a protocol or a convention on the rights of national minorities. Recommendation 1134 (1990) contains a list of principles which the Assembly considered necessary for the protection of national minorities. In October 1991, the Steering Committee for Human Rights (CDDH) was given the task of considering, from both a legal and a political point of view, the conditions in which the Council of Europe could undertake an activity for the protection of national minorities, taking into account the work done by the Conference on Security and Co-operation in Europe (CSCE) and the United Nations, and the reflections within the Council of Europe.

4. In May 1992, the Committee of Ministers instructed the CDDH to examine the possibility of formulating specific legal standards relating to the protection of national minorities. To this end, the CDDH established a committee of experts (DH-MIN) which, under new terms of reference issued in March 1993, was required to propose specific legal standards in this area, bearing in mind the principle of complementarity of work between the Council of Europe and the CSCE. The CDDH and the DH-MIN took various texts into account, in particular the proposal for a European Convention for the Protection of National Minorities drawn up by the European Commission for Democracy through Law (the so-called Venice Commission), the Austrian proposal for an additional protocol to the ECHR, the draft additional protocol to the ECHR included in Assembly Recommendation 1201 (1993) and other proposals. This examination culminated in the report of the CDDH to the Committee of Ministers of 8 September 1993, which included various legal standards which might be adopted in this area and the legal instruments in which they could be laid down. In this connection, the CDDH noted that there was no consensus on the interpretation of the term "national minorities".

5. The decisive step was taken when the Heads of State and Government of the Council of Europe’s member States met in Vienna at the summit of 8 and 9 October 1993. There, it was agreed that the national minorities which the upheavals of history have established in Europe had to be protected and respected as a contribution to peace and stability. In particular, the Heads of State and Government decided to enter into legal commitments regarding the protection of national minorities. Appendix II of the Vienna Declaration instructed the Committee of Ministers:

– to draft with minimum delay a framework convention specifying the principles which contracting States commit themselves to respect, in order to assure the protection of national minorities. This instrument would also be open for signature by non-member States;

– to begin work on drafting a protocol complementing the European Convention on Human Rights in the cultural field by provisions guaranteeing individual rights, in particular for persons belonging to national minorities.

6. On 4 November 1993, the Committee of Ministers established an ad hoc Committee for the Protection of National Minorities (CAHMIN). Its terms of reference reflected the decisions taken in Vienna. The committee, made up of experts from the Council of Europe’s member States, started work in late January 1994, with the participation of representatives of the CDDH, the Council for Cultural Co-operation (CDCC), the Steering Committee on the Mass Media (CDMM) and the European Commission for Democracy through Law. The High Commissioner on National Minorities of the CSCE and the Commission of the European Communities also took part, as observers.

7. On 15 April 1994, CAHMIN submitted an interim report to the Committee of Ministers, which was then communicated to the Parliamentary Assembly (Doc. 7109). At its 94th session in May 1994, the Committee of Ministers expressed satisfaction with the progress achieved under the terms of reference flowing from the Vienna Declaration.

8. A certain number of provisions of the framework Convention requiring political arbitration as well as those concerning the monitoring of the implementation were drafted by the Committee of Ministers (517bis meeting of Ministers’ Deputies, 7 October 1994).

9. At its meeting from 10 to 14 October 1994, CAHMIN decided to submit the draft framework Convention to the Committee of Ministers, which adopted the text at the 95th Ministerial Session on 10 November 1994. The framework Convention was opened for signature by the Council of Europe’s member States on 1 February 1995.

General considerations

Objectives of the framework Convention

10. The framework Convention is the first legally binding multilateral instrument devoted to the protection of national minorities in general. Its aim is to specify the legal principles which States undertake to respect in order to ensure the protection of national minorities. The Council of Europe has thereby given effect to the Vienna Declaration’s call (Appendix II) for the political commitments adopted by the Conference on Security and Co-operation in Europe (CSCE) to be transformed, to the greatest possible extent, into legal obligations.

Approaches and fundamental concepts

11. In view of the range of different situations and problems to be resolved, a choice was made for a framework Convention which contains mostly programme-type provisions setting out objectives which the Parties undertake to pursue. These provisions, which will not be directly applicable, leave the States concerned a measure of discretion in the implementation of the objectives which they have undertaken to achieve, thus enabling them to take particular circumstances into account.

12. It should also be pointed out that the framework Convention contains no definition of the notion of "national minority". It was decided to adopt a pragmatic approach, based on the recognition that at this stage, it is impossible to arrive at a definition capable of mustering general support of all Council of Europe member States.

13. The implementation of the principles set out in this framework Convention shall be done through national legislation and appropriate governmental policies. It does not imply the recognition of collective rights. The emphasis is placed on the protection of persons belonging to national minorities, who may exercise their rights individually and in community with others (see Article 3, paragraph 2). In this respect, the framework Convention follows the approach of texts adopted by other international organisations.

Structure of the framework Convention

14. Apart from its Preamble, the framework Convention contains an operative part which is divided into five sections.

15. Section I contains provisions which, in a general fashion, stipulate certain fundamental principles which may serve to elucidate the other substantive provisions of the framework Convention.

16. Section II contains a catalogue of specific principles.

17. Section III contains various provisions concerning the interpretation and application of the framework Convention.

18. Section IV contains provisions on the monitoring of the implementation of the framework Convention.

19. Section V contains the final clauses which are based on the model final clauses for conventions and agreements concluded within the Council of Europe.

Commentary on the provisions of the Framework Convention

Preamble

20. The Preamble sets out the reasons for drawing up this framework Convention and explains certain basic concerns of its drafters. The opening words already indicate that this instrument may be signed and ratified by States not members of the Council of Europe (see Articles 27 and 29).

21. The Preamble refers to the statutory aim of the Council of Europe and to one of the methods by which this aim is to be pursued: the maintenance and further realisation of human rights and fundamental freedoms.

22. Reference is also made to the Vienna Declaration of Heads of State and Government of the member States of the Council of Europe, a document which laid the foundation for the present framework Convention (see also paragraph 5 above). In fact, the text of the Preamble is largely inspired by that declaration, in particular its Appendix II. The same is true of the choice of undertakings included in Sections I and II of the framework Convention.

23. The Preamble mentions, in a non-exhaustive way, three further sources of inspiration for the content of the framework Convention: the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and instruments which contain commitments regarding the protection of national minorities of the United Nations and the CSCE.

24. The Preamble reflects the concern of the Council of Europe and its member States about the risk to the existence of national minorities and is inspired by Article 1, paragraph 1, of the United Nations Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (Resolution 47/135 adopted by the General Assembly on 18 December 1992).

25. Given that the framework Convention is also open to States which are not members of the Council of Europe, and to ensure a more comprehensive approach, it was decided to include certain principles from which flow rights and freedoms which are already guaranteed in the ECHR or in the protocols thereto (see also in connection with this, Article 23 of the framework Convention).

26. The reference to United Nations conventions and declarations recalls the work done at the universal level, for example in the International Covenant on Civil and Political Rights (Article 27) and in the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities. However this reference does not extend to any definition of a national minority which may be contained in these texts.

27. The reference to the relevant CSCE commitments reflects the desire expressed in Appendix II of the Vienna Declaration that the Council of Europe should apply itself to transforming, to the greatest possible extent, these political commitments into legal obligations. The Copenhagen Document in particular provided guidance for drafting the framework Convention.

28. The penultimate paragraph in the Preamble sets out the main aim of the framework Convention: to ensure the effective protection of national minorities and of the rights of persons belonging to those minorities. It also stresses that this effective protection should be ensured within the rule of law, respecting the territorial integrity and national sovereignty of States.

29. The purpose of the last recital is to indicate that the provisions of this framework Convention are not directly applicable. It is not concerned with the law and practice of the Parties in regard to the reception of international treaties in the internal legal order.

Section I

Article 1

30. The main purpose of Article 1 is to specify that the protection of national minorities, which forms an integral part of the protection of human rights, does not fall within the reserved domain of States. The statement that this protection "forms an integral part of the international protection of human rights" does not confer any competence to interpret the present framework Convention on the organs established by the ECHR.

31. The article refers to the protection of national minorities as such and of the rights and freedoms of persons belonging to such minorities. This distinction and the difference in wording make it clear that no collective rights of national minorities are envisaged (see also the commentary to Article 3). The Parties do however recognise that protection of a national minority can be achieved through protection of the rights of individuals belonging to such a minority.

Article 2

32. This article provides a set of principles governing the application of the framework Convention. It is, inter alia, inspired by the United Nations Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (General Assembly Resolution 2625 (XXV) of 24 October 1970). The principles mentioned in this provision are of a general nature but do have particular relevance to the field covered by the framework Convention.

Article 3

33. This article contains two distinct but related principles laid down in two different paragraphs

Paragraph 1

34. Paragraph 1 firstly guarantees to every person belonging to a national minority the freedom to choose to be treated or not to be treated as such. This provision leaves it to every such person to decide whether or not he or she wishes to come under the protection flowing from the principles of the framework Convention.

35. This paragraph does not imply a right for an individual to choose arbitrarily to belong to any national minority. The individual’s subjective choice is inseparably linked to objective criteria relevant to the person’s identity.

36. Paragraph 1 further provides that no disadvantage shall arise from the free choice it guarantees, or from the exercise of the rights which are connected to that choice. This part of the provision aims to secure that the enjoyment of the freedom to choose shall also not be impaired indirectly.

Paragraph 2

37. Paragraph 2 provides that the rights and freedoms flowing from the principles of the framework Convention may be exercised individually or in community with others. It thus recognises the possibility of joint exercise of those rights and freedoms, which is distinct from the notion of collective rights . The term "others" shall be understood in the widest possible sense and shall include persons belonging to the same national minority, to another national minority, or to the majority.

Section II

Article 4

38. The purpose of this article is to ensure the applicability of the principles of equality and non-discrimination for persons belonging to national minorities. The provisions of this article are to be understood in the context of this framework Convention.

Paragraphs 1 and 2

39. Paragraph 1 takes the classic approach to these principles. Paragraph 2 stresses that the promotion of full and effective equality between persons belonging to a national minority and those belonging to the majority may require the Parties to adopt special measures that take into account the specific conditions of the persons concerned. Such measures need to be "adequate", that is in conformity with the proportionality principle, in order to avoid violation of the rights of others as well as discrimination against others. This principle requires, among other things, that such measures do not extend, in time or in scope, beyond what is necessary in order to achieve the aim of full and effective equality.

40. No separate provision dealing specifically with the principle of equal opportunities has been included in the framework Convention. Such an inclusion was considered unnecessary as the principle is already implied in paragraph 2 of this article. Given the principle of non-discrimination set out in paragraph 1 the same was considered true for freedom of movement.

Paragraph 3

41. The purpose of paragraph 3 is to make clear that the measures referred to in paragraph 2 are not to be regarded as contravening the principles of equality and non-discrimination. Its aim is to ensure to persons belonging to national minorities effective equality along with persons belonging to the majority.

Article 5

42. This article essentially aims at ensuring that persons belonging to national minorities can maintain and develop their culture and preserve their identity.

Paragraph 1

43. Paragraph 1 contains an obligation to promote the necessary conditions in this respect. It lists four essential elements of the identity of a national minority. This provision does not imply that all ethnic, cultural, linguistic or religious differences necessarily lead to the creation of national minorities (see in this regard the report of the CSCE meeting of experts, held in Geneva in 1991, section II, paragraph 4).

44. The reference to "traditions" is not an endorsement or acceptance of practices which are contrary to national law or international standards. Traditional practices remain subject to limitations arising from the requirements of public order.

Paragraph 2

45. The purpose of paragraph 2 is to protect persons belonging to national minorities from assimilation against their will. It does not prohibit voluntary assimilation.

46. Paragraph 2 does not preclude the Parties from taking measures in pursuance of their general integration policy. It thus acknowledges the importance of social cohesion and reflects the desire expressed in the preamble that cultural diversity be a source and a factor, not of division, but of enrichment to each society.

Article 6

47. This article is an expression of the concerns stated in Appendix III to the Vienna Declaration (Declaration and Plan of Action on combating racism, xenophobia, anti-Semitism and intolerance).

Paragraph 1

48. Paragraph 1 stresses a spirit of tolerance and intercultural dialogue and points out the importance of the Parties’ promoting mutual respect, understanding and co-operation among all who live on their territory. The fields of education, culture and the media are specifically mentioned because they are considered particularly relevant to the achievement of these aims.

49. In order to strengthen social cohesion, the aim of this paragraph is, inter alia, to promote tolerance and intercultural dialogue, by eliminating barriers between persons belonging to ethnic, cultural, linguistic and religious groups through the encouragement of intercultural organisations and movements which seek to promote mutual respect and understanding and to integrate these persons into society whilst preserving their identity.

Paragraph 2

50. This provision is inspired by paragraph 40.2 of the Copenhagen Document of the CSCE. This obligation aims at the protection of all persons who may be subject to threats or acts of discrimination, hostility or violence, irrespective of the source of such threats or acts.

Article 7

51. The purpose of this article is to guarantee respect for the right of every person belonging to a national minority to the fundamental freedoms mentioned therein. These freedoms are of course of a universal nature, that is they apply to all persons, whether belonging to a national minority or not (see, for instance, the corresponding provisions in Articles 9, 10 and 11 of the ECHR), but they are particularly relevant for the protection of national minorities. For the reasons stated above in the commentary on the preamble, it was decided to include certain undertakings which already appear in the ECHR.

52. This provision may imply for the Parties certain positive obligations to protect the freedoms mentioned against violations which do not emanate from the State. Under the ECHR, the possibility of such positive obligations has been recognised by the European Court of Human Rights.

53. Some of the freedoms laid down in Article 7 are elaborated upon in Articles 8 and 9.

Article 8

54. This article lays down more detailed rules for the protection of freedom of religion than Article 7. It combines several elements from paragraphs 32.2, 32.3 and 32.6 of the CSCE Copenhagen Document into a single provision. This freedom of course applies to all persons and persons belonging to a national minority should, in accordance with Article 4, enjoy it as well. Given the importance of this freedom in the present context, it was felt particularly appropriate to give it special attention.

Article 9

55. This article contains more detailed rules for the protection of the freedom of expression than Article 7.

Paragraph 1

56. The first sentence of this paragraph is modelled on the second sentence of Article 10, paragraph 1, of the ECHR. Although the sentence refers specifically to the freedom to receive and impart information and ideas in the minority language, it also implies the freedom to receive and impart information and ideas in the majority or other languages.

57. The second sentence of this paragraph contains an undertaking to ensure that there is no discrimination in access to the media. The words "in the framework of their legal systems" were inserted in order to respect constitutional provisions which may limit the extent to which a Party can regulate access to the media.

Paragraph 2

58. This paragraph is modelled on the third sentence of Article 10, paragraph 1, of the ECHR.

59. The licensing of sound radio and television broadcasting, and of cinema enterprises, should be non-discriminatory and be based on objective criteria. The inclusion of these requirements, which are not expressly mentioned in the third sentence of Article 10, paragraph 1, of the ECHR, was considered important for an instrument designed to protect persons belonging to a national minority.

60. The words "sound radio", which also appear in paragraph 3 of this article, do not appear in the corresponding sentence in Article 10 of the ECHR. They are used in order to reflect modern terminology and do not imply any material difference in meaning from Article 10 of the ECHR.

Paragraph 3

61. The first sentence of this paragraph, dealing with the creation and use of printed media, contains an essentially negative undertaking whereas the more flexibly worded second sentence emphasises a positive obligation in the field of sound radio and television broadcasting (for example the allocation of frequencies). This distinction reflects the relative scarcity of available frequencies and the need for regulation in the latter field. No express reference has been made to the right of persons belonging to a national minority to seek funds for the establishment of media, as this right was considered self-evident.

Paragraph 4

62. This paragraph emphasises the need for special measures with the dual aim of facilitating access to the media for persons belonging to national minorities and promoting tolerance and cultural pluralism. The expression "adequate measures" was used for the reasons given in the commentary on Article 4, paragraph 2 (see paragraph 39), which uses the same words. The paragraph complements the undertaking laid down in the last sentence of Article 9, paragraph 1. The measures envisaged by this paragraph could, for example, consist of funding for minority broadcasting or for programme productions dealing with minority issues and/or offering a dialogue between groups, or of encouraging, subject to editorial independence, editors and broadcasters to allow national minorities access to their media.

Article 10

Paragraph 1

63. The recognition of the right of every person belonging to a national minority to use his or her minority language freely and without interference is particularly important. The use of the minority language represents one of the principal means by which such persons can assert and preserve their identity. It also enables them to exercise their freedom of expression. "In public" means, for instance, in a public place, outside, or in the presence of other persons but is not concerned in any circumstances with relations with public authorities, the subject of paragraph 2 of this article.

Paragraph 2

64. This provision does not cover all relations between individuals belonging to national minorities and public authorities. It only extends to administrative authorities. Nevertheless, the latter must be broadly interpreted to include, for example, ombudsmen. In recognition of the possible financial, administrative, in particular in the military field, and technical difficulties associated with the use of minority languages in relations between persons belonging to national minorities and the administrative authorities, this provision has been worded very flexibly, leaving Parties a wide measure of discretion.

65. Once the two conditions in paragraph 2 are met, Parties shall endeavour to ensure the use of a minority language in relations with the administrative authorities as far as possible. The existence of a "real need" is to be assessed by the State on the basis of objective criteria. Although contracting States should make every effort to apply this principle, the wording "as far as possible" indicates that various factors, in particular the financial resources of the Party concerned, may be taken into consideration.

66. The Parties’ obligations regarding the use of minority languages do not in any way affect the status of the official language or languages of the country concerned. Moreover, the framework Convention deliberately refrains from defining "areas inhabited by persons belonging to national minorities traditionally or in substantial numbers". It was considered preferable to adopt a flexible form of wording which will allow each Party’s particular circumstances to be taken into account. The term "inhabited ... traditionally" does not refer to historical minorities, but only to those still living in the same geographical area (see also Article 11, paragraph 3, and Article 14, paragraph 2).

Paragraph 3

67. This paragraph is based on certain provisions contained in Articles 5 and 6 of the European Convention on Human Rights. It does not go beyond the safeguards contained in those articles.

Article 11

Paragraph 1

68. In view of the practical implications of this obligation, the provision is worded in such a way as to enable Parties to apply it in the light of their own particular circumstances. For example, Parties may use the alphabet of their official language to write the name(s) of a person belonging to a national minority in its phonetic form. Persons who have been forced to give up their original name(s), or whose name(s) has (have) been changed by force, should be entitled to revert to it (them), subject of course to exceptions in the case of abuse of rights and changes of name(s) for fraudulent purposes. It is understood that the legal systems of the Parties will, in this respect, meet international principles concerning the protection of national minorities.

Paragraph 2

69. The obligation in this paragraph concerns an individual’s right to display "in his or her minority language signs, inscriptions and other information of a private nature visible to the public". This does not, of course, exclude persons belonging to national minorities from being required to use, in addition, the official language and/or other minority languages. The expression "of a private nature" refers to all that is not official.

Paragraph 3

70. This article aims to promote the possibility of having local names, street names and other topographical indications intended for the public also in the minority language. In implementing this principle the States are entitled to take due account of the specific circumstances and the framework of their legal systems, including, where appropriate, agreements with other States. In the field covered by this provision, it is understood that the Parties are under no obligation to conclude agreements with other States. Conversely, the possibility of concluding such agreements is not ruled out. It is also understood that the legally binding nature of existing agreements remains unaffected. This provision does not imply any official recognition of local names in the minority languages.

Article 12

71. This article seeks to promote knowledge of the culture, history, language and religion of both national minorities and the majority population in an intercultural perspective (see Article 6, paragraph 1). The aim is to create a climate of tolerance and dialogue, as referred to in the preamble to the framework convention and in Appendix II of the Vienna Declaration of the Heads of State and Government. The list in the second paragraph is not exhaustive whilst the words "access to textbooks" are understood as including the publication of textbooks and their purchase in other countries. The obligation to promote equal opportunities for access to education at all levels for persons belonging to national minorities reflects a concern expressed in the Vienna Declaration.

Article 13

Paragraph 1

72. The Parties’ obligation to recognize the right of persons belonging to national minorities to set up and manage their own private educational and training establishments is subject to the requirements of their educational system, particularly the regulations relating to compulsory schooling. The establishments covered by this paragraph may be subject to the same forms of supervision as other establishments, particularly with regard to teaching standards. Once the required standards are met, it is important that any qualifications awarded are officially recognised. The relevant national legislation must be based on objective criteria and conform to the principle of non-discrimination.

Paragraph 2

73. The exercise of the right referred to in paragraph 1 does not entail any financial obligation for the Party concerned, but neither does it exclude the possibility of such a contribution.

Article 14

Paragraph 1

74. The obligation to recognize the right of every person belonging to a national minority to learn his or her minority language concerns one of the principal means by which such individuals can assert and preserve their identity. There can be no exceptions to this. Without prejudice to the principles mentioned in paragraph 2, this paragraph does not imply positive action, notably of a financial nature, on the part of the State.

Paragraph 2

75. This provision concerns teaching of and instruction in a minority language. In recognition of the possible financial, administrative and technical difficulties associated with instruction of or in minority languages, this provision has been worded very flexibly, leaving Parties a wide measure of discretion. The obligation to endeavour to ensure instruction of or in minority languages is subject to several conditions; in particular, there must be "sufficient demand" from persons belonging to the relevant national minorities. The wording "as far as possible" indicates that such instruction is dependent on the available resources of the Party concerned.

76. The text deliberately refrains from defining "sufficient demand", a flexible form of wording which allows Parties to take account of their countries’ own particular circumstances. Parties have a choice of means and arrangements in ensuring such instruction, taking their particular educational system into account.

77. The alternatives referred to in this paragraph – "opportunities for being taught the minority language or for receiving instruction in this language" – are not mutually exclusive. Even though Article 14, paragraph 2, imposes no obligation upon States to do both, its wording does not prevent the States Parties from implementing the teaching of the minority language as well as the instruction in the minority language. Bilingual instruction may be one of the means of achieving the objective of this provision. The obligation arising from this paragraph could be extended to pre-school education.

Paragraph 3

78. The opportunities for being taught the minority language or for receiving instruction in this language are without prejudice to the learning of the official language or the teaching in this language. Indeed, knowledge of the official language is a factor of social cohesion and integration.

79. It is for States where there is more than one official language to settle the particular questions which the implementation of this provision shall entail.

Article 15

80. This article requires Parties to create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them. It aims above all to encourage real equality between persons belonging to national minorities and those forming part of the majority. In order to create the necessary conditions for such participation by persons belonging to national minorities, Parties could promote – in the framework of their constitutional systems – inter alia the following measures:

– consultation with these persons, by means of appropriate procedures and, in particular, through their representative institutions, when Parties are contemplating legislation or administrative measures likely to affect them directly;

– involving these persons in the preparation, implementation and assessment of national and regional development plans and programmes likely to affect them directly;

– undertaking studies, in conjunction with these persons, to assess the possible impact on them of projected development activities;

– effective participation of persons belonging to national minorities in the decision-making processes and elected bodies both at national and local levels;

– decentralised or local forms of government.

Article 16

81. The purpose of this article is to protect against measures which change the proportion of the population in areas inhabited by persons belonging to national minorities and are aimed at restricting the rights and freedoms which flow from the present framework Convention. Examples of such measures might be expropriation, evictions and expulsions or redrawing administrative borders with a view to restricting the enjoyment of such rights and freedoms ("gerrymandering").

82. The article prohibits only measures which are aimed at restricting the rights and freedoms flowing from the framework Convention. It was considered impossible to extend the prohibition to measures having the effect of restricting such rights and freedoms, since such measures may sometimes be entirely justified and legitimate. One example might be resettlement of inhabitants of a village in order to build a dam.

Article 17

83. This article contains two undertakings important to the maintenance and development of the culture of persons belonging to a national minority and to the preservation of their identity (see also Article 5, paragraph 1). The first paragraph deals with the right to establish and maintain free and peaceful contacts across frontiers, whereas the second paragraph protects the right to participate in the activities of non-governmental organisations (see also in this connection, the provisions on freedom of assembly and of association in Article 7).

84. The provisions of this article are largely based on paragraphs 32.4 and 32.6 of the Copenhagen Document of the CSCE. It was considered unnecessary to include an explicit provision on the right to establish and maintain contacts within the territory of a State, since this was felt to be adequately covered by other provisions of the framework Convention, notably Article 7 as regards freedom of assembly and of association.

Article 18

85. This article encourages the Parties to conclude, in addition to the existing international

instruments, and where the specific circumstances justify it, bilateral and multilateral agreements for the protection of national minorities. It also stimulates transfrontier co-operation. As is emphasised in the Vienna Declaration and its Appendix II, such agreements and co-operation are important for the promotion of tolerance, prosperity, stability and peace.

Paragraph 1

86. Bilateral and multilateral agreements as envisaged by this paragraph might, for instance, be concluded in the fields of culture, education and information.

Paragraph 2

87. This paragraph points out the importance of transfrontier co-operation. Exchange of information and experience between States is an important tool for the promotion of mutual understanding and confidence. In particular, transfrontier co-operation has the advantage that it allows for arrangements specifically tailored to the wishes and needs of the persons concerned.

Article 19

88. This article provides for the possibility of limitations, restrictions or derogations. When the undertakings included in this framework Convention have an equivalent in other international legal instruments, in particular the ECHR, only the limitations, restrictions or derogations provided for in those instruments are allowed. When the undertakings set forth in this framework Convention have no equivalent in other international legal instruments, the only limitations, restrictions or derogations allowed are those which, included in other legal instruments (such as the ECHR) in respect of different undertakings, are relevant.

Section III

Article 20

89. Persons belonging to national minorities are required to respect the national constitution and other national legislation. However, this reference to national legislation clearly does not entitle Parties to ignore the provisions of the framework Convention. Persons belonging to national minorities must also respect the rights of others. In this regard, reference may be made to situations where persons belonging to national minorities are in a minority nationally but form a majority within one area of the State.

Article 21

90. This provision stresses the importance of the fundamental principles of international law and specifies that the protection of persons belonging to national minorities must be in accordance with these principles.

Article 22

91. This provision, which is based on Article 60 of the ECHR, sets out a well-known principle. The aim is to ensure that persons belonging to national minorities benefit from whichever of the relevant national or international human rights legislation is most favourable to them.

Article 23

92. This provision deals with the relationship between the framework Convention and the Convention for the Protection of Human Rights and Fundamental Freedoms, reference to which is included in the Preamble. Under no circumstances can the framework Convention modify the rights and freedoms safeguarded in the Convention for the Protection of Human Rights and Fundamental Freedoms. On the contrary, rights and freedoms enshrined in the framework Convention which are the subject of a corresponding provision in the Convention for the Protection of Human Rights and Fundamental Freedoms must be interpreted in accordance with the latter.

Section IV

Articles 24-26

93. To provide for overseeing the application of the framework Convention, the Committee of Ministers is entrusted with the task of monitoring the implementation by the Contracting Parties. The Committee of Ministers shall determine the modalities for the participation in the implementation mechanism by the Parties which are not members of the Council of Europe.

94. Each Party shall transmit to the Secretary General on a periodical basis and whenever the Committee of Ministers so requests information of relevance to the implementation of this framework Convention. The Secretary General shall transmit this information to the Committee of Ministers. However, the first report, the aim of which is to provide full information on legislative and other measures which the Party has taken to give effect to the undertakings set out in the framework Convention, must be submitted within one year of the entry into force of the framework Convention in respect of the Party concerned. The purpose of the subsequent reports shall be to complement the information included in the first report.

95. In order to ensure the efficiency of the monitoring of the implementation of the framework Convention, it provides for the setting up of an advisory committee. The task of this advisory committee is to assist the Committee of Ministers when it evaluates the adequacy of the measures taken by a Party to give effect to the principles set out in the framework Convention.

96. It is up to the Committee of Ministers to determine, within one year of the entry into force of the framework Convention, the composition and the procedures of the advisory committee, the members of which shall have recognised expertise in the field of the protection of national minorities.

97. The monitoring of the implementation of this framework Convention shall, in so far as possible, be transparent. In this regard it would be advisable to envisage the publication of the reports and other texts resulting from such monitoring.

Section V

98. The final provisions contained in articles 27 to 32 are based on the model final clauses for conventions and agreements concluded within the Council of Europe. No article on reservations was included; reservations are allowed in as far as they are permitted by international law. Apart from Articles 27 and 29 the articles in this section require no particular comment.

Articles 27 and 29

99. The framework Convention is open for signature by the Council of Europe’s member States and, at the invitation of the Committee of Ministers, by other States. It is understood that "other States" are those States which participate in the Conference on Security and Cooperation in Europe. These provisions take account of the Vienna Declaration, according to which the framework Convention should also be open for signature by non-member States (see Appendix II to the Vienna Declaration of the Council of Europe Summit).

Indigenous Peoples and Development As socioeconomic development takes place, many development initiatives are extending farther into geographically remote areas often considered the traditional homelands of indigenous peoples; these areas offer resources such as forests, minerals, and hydropower potential. Roads, power transmission lines, and other infrastructure development initiatives similarly are extending into the traditional areas of indigenous peoples. In parallel with physical and economic development, dominant and mainstream populations and cultures also are extending into the traditional areas of indigenous peoples. Protection of indigenous peoples from development or maintenance of a status quo for indigenous peoples should not be a development objective. At the same time, it is not uncommon that interests of indigenous peoples differ from those of the mainstream, and that development policies and approaches addressing the interests of dominant and mainstream communities conflict with the interests of indigenous peoples. What may be in the broad national interest may not be in the specific interests of indigenous peoples, and development emerging from dominant and mainstream community-oriented initiatives may arrive in forms not consistent with indigenous peoples' interests or concerns. Development as it most often is pursued is intended to meet national goals and the interests of dominant and mainstream societies. Reducing poverty and improving the quality of life of people in general most often are the primary objectives of development. However, it is not always the case that poverty reduction and improvement in the quality of life realized from development extend equally to all segments of society, or that improvement reaches each segment of society. Moreover, in mainstream-oriented economic development policies, indigenous peoples communities may bear a disproportionate burden of the negative social, economic, and environmental effects that such development projects may bring, without realizing commensurate benefits. Goals and Objectives of Development There may be differences in views between dominant and mainstream societies and indigenous peoples communities as to the broad goals and objectives that development should pursue. Development viewed from the mainstream often is measured in terms of economic advancement or gain and improvement in quality of life, and most often places emphasis on economic growth. From the development perspective of indigenous peoples, in addition to economic advancement, there may also be concern for social, cultural, environmental, and community aspects of development as a combination of economic advancement and social, cultural, and community development. Indigenous peoples sometimes view the principles and efforts of mainstream development as inappropriate or unsustainable, and as an intrusion into traditional ways of life. The physical intrusions of development interventions into the traditional domains of indigenous peoples, and social intrusions into indigenous cultures, can be viewed by indigenous peoples and others as a violation of human rights, rights to land, and rights associated with the maintenance of culture. Culture and Development Indigenous peoples' desires to protect their cultural identities and to preserve aspects of culture based in ancestral lands and resources is receiving increasing recognition within the international development community. Increasing recognition is being given to the principle of indigenous peoples determining their own pace and path of development, and there is increasing recognition that social and cultural diversity is in the interest of society and is not an obstacle to national development or economic stability. There is increasing recognition that there is dignity in all cultures, that there should be equality in opportunity for all segments of society, and that all segments of society deserve opportunities for equal access to both the factors and the benefits of development.

Laws and Conventions Affecting Indigenous Peoples National Laws and Practices With a substantial portion of the world's indigenous peoples living in Asia and the Pacific, virtually every country in the region has an indigenous population. While the effectiveness of provisions may vary, some countries recognize the unique status of indigenous peoples and offer the privileges and protections of citizenship. Few countries have enacted laws that recognize any rights of indigenous peoples to ancestral lands, or that support indigenous peoples regaining and strengthening their social, cultural, and legal institutions. In many cases, enforcement of laws that may exist has been inadequate. Some countries have experienced conflicts between interests of indigenous peoples and interests of dominant and mainstream communities. These conflicts most often relate to control over and exploitation of natural resources in the areas indigenous peoples claim as traditional domains. Appropriation of ancestral territories or resources in these territories by governments or external interests most often is justified as a part of economic development and growth. Indigenous peoples' sparse occupation of large areas of land and non-intensive use of resources often is characterized by external interests as economic inefficiency or lost opportunity. Indigenous peoples' land and resource management practices sometimes are viewed as unsustainable or environmentally damaging. At the national level, in some cases, new laws, policies, and other measures may be necessary to reconcile competing demands and conflicting interests, especially if interests of indigenous peoples are to be protected. In any case, however, the Bank must respect the will of governments, including legislation and policy that exists and the power of eminent domain that governments possess. Country programs and project selection will be developed in cooperation with governments. When difficulties are encountered, the Bank may be able to provide guidance or assistance through mechanisms such as policy dialogue and technical assistance. International Conventions and Declarations The international community has shown increasing concern for the protection of the rights of indigenous peoples. Conventions and declarations of the international community provide a broad framework, as well as specific statements regarding the protection of indigenous peoples and their interests, cultures, ways of life, cultural survival, and development. It may be noted that some international instruments relating to indigenous peoples have not been ratified by large numbers of the international community. The United Nations Universal Declaration of Human Rights (1948) and International Covenant on Civil and Political Rights (1966) have specific significance for indigenous peoples. The Universal Declaration provides a common standard for the human rights of all peoples and all nations, and proclaims the importance of traditional, political, and civil rights, as well as basic economic social and cultural rights. The Covenant spells out civil and political rights and guiding principles based on the Universal Declaration. The 1957 International Labour Organization (ILO) Convention No. 107, Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, addresses the right of indigenous peoples to pursue material well-being and spiritual development, and was a first international instrument in specific support of indigenous peoples. Largely because of its view that indigenous peoples should be integrated into the larger society, a view that subsequently came to be seen by many as inappropriate, Convention No. 107 was followed in 1989 by ILO Convention 169, Convention Concerning Indigenous and Tribal Peoples in Independent Countries. Convention No. 169 presents the fundamental concept that the way of life of indigenous and tribal peoples should and will survive, as well as the view that indigenous and tribal peoples and their traditional organizations should be closely involved in the planning and implementation of development projects that affect them. As the most comprehensive and most current international legal instrument to address issues vital to indigenous and tribal peoples, Convention No. 169 includes articles that deal with consultation and participation, social security and health, human development, and the environment. To date, Convention No. 169 has been ratified by only a few countries, and so far by none in the Asian and Pacific Region. Agenda 21 adopted by the United Nations Conference on Environment and Development (UNCED) in 1992 recognizes the actual and potential contribution of indigenous and tribal peoples to sustainable development. The 1992 Convention on Biodiversity calls on contracting parties to respect traditional indigenous knowledge with regard to the preservation of biodiversity and its sustainable use. The Vienna Declaration and Program of Action emerging from the 1993 World Conference on Human Rights recognizes the dignity and unique cultural contributions of indigenous peoples, and strongly reaffirms the commitment of the international community to the economic, social, and cultural well-being of indigenous peoples and their enjoyment of the fruits of sustainable development. The United Nation's 1993 Draft Declaration on the Rights of Indigenous Peoples, developed with the direct participation of indigenous peoples representatives and currently under consideration within the United Nations, addresses issues such as the right to participation, the right of indigenous peoples to direct their own development, the right of indigenous peoples to determine and develop priorities and strategies for the development or use of ancestral territories and resources, and the right to self-determination. The emerging concern for indigenous peoples prompted the United Nations to declare 1993 as the International Year of the World's Indigenous Peoples and the decade from December 1994 as the Indigenous Peoples Decade. Practices of Other International Institutions Among comparator organizations, World Bank policies and practices are the most relevant to the Bank. The World Bank's Operational Directive 4.20: Indigenous Peoples establishes specific approaches to indigenous peoples in World Bank operations. Through its operational directive, the World Bank recognizes and takes into consideration issues such as the identification of indigenous peoples, the attachment of indigenous peoples to land and resources, the significance of distinct linguistic and cultural identities, and the primarily subsistence nature of indigenous peoples' production systems. World Bank policy calls for indigenous peoples' informed and willing participation in development, and respect for indigenous peoples' dignity, human rights, and cultural uniqueness. For development interventions that affect indigenous peoples directly and significantly, an indigenous peoples development plan is required. Another comparator organization with direct relevance to the Bank is the Inter-American Development Bank (IDB). While IDB does not have a specific policy addressing indigenous peoples, it does address their concerns through its operational activities, an approach IDB considers more relevant to the circumstances of its region. Operational processes relating to involuntary resettlement, poverty reduction, rural development, and environmental and social impact assessment all include specific consideration of indigenous peoples' concerns. In the IDB region, the poorest segments of society often are indigenous peoples, and projects are designed specifically to assist these groups. In the IDB, creation of special funds to support activities such as enterprise development and capacity building provide other avenues for the pursuit of issues relating to indigenous peoples. The representative offices that IDB maintains in its client countries provide a basis for country-specific consideration of indigenous peoples concerns. Among United Nations agencies, the United Nations Development Program (UNDP) has undertaken a number of programs to address indigenous peoples concerns. In the Bank's region, the objectives of UNDP's Highland Peoples Program, covering Cambodia, Lao People's Democratic Republic, Thailand, and Viet Nam, are to increase organizational capacities and opportunities among highland communities, in participatory planning, management, and coordination; establish and/or reinforce exchange mechanisms and procedures; and work for the overall development of highland communities in the four countries covered.