CEU eTD Collection Hungary 1051 Budapest, Nádorutca 9. Central European University Professor: Tibor Várady, Dr.habil. Rights Human COURSE: LL.M. LONG THESIS State succession andminority rights – acasestudyofthe rights dissolution oftheFormer Yugoslavia © Central European University 20 November, 2009 Antal Berkes By CEU eTD Collection standard of minority protection which shall bind all new States tending to be legitimized. be to tending States new all bind shall which protection minority of standard minimum ahigher of crystallization a to contributed States new the on imposed instruments largelywhich minorityexceeded the Cold The of the Warperiod. rightsinternational standards minorities protecting obligations additional of series a Yugoslavia Former the of States internationalthe Furthermore, was party. predecessor community imposed onthe successor their which to treaties rights human the continue should States minimum,successor of alsobut internationalthe that State, community. only successor the of interests the As a especially Dissolution of States separation and minorities, threaten serves not whoseprotection Executive summary Executive ii CEU eTD Collection . Chapter One: Majority opinion about State successionI. in respect of human rights treaties. Introduction – Definition 1 of the ...... scope of the research Table of Contents I Chapter Two : Minority rights at II. the time of separation ...... 29 of States ehdlg ...... 6 ...... Methodology Notions of State succession – restriction of the research 4 the separationto of States...... Notion of minority 3 rights...... 1 of States...... Research question: ahigher of minority standard in case of protection dissolution .. The connection between separation and 2.1.minorities: a situation of instability ...... 29 1.3...... 27 Conclusion Synthesizing1.2. the doctrinal views: signs of a regional custom of continuity in Eastern State succession1.1. in respect of human rights treaties: a controversial way towards an ... The need of stability through minority2.1.1. protection in the States concerned by Summarizing the1.1.8. 21 ...... arguments The practice of States partly supports the automatic State succession in respect 1.1.7. The practice under the ECHR 1.1.6.supports the 18 automaticity ...... rule The practice of most UN bodies supports1.1.5. the automatic State succession in In case of separation, Art. 34 codifies the automatic State succession in respect 1.1.4. Human rights represent 1.1.3. universal 12 values...... Human rights as acquired rights: 1.1.2. are they directly granted to individuals?...... 12 The irreversibility of 1.1.1. human rights 11 treaties...... 9 ...... and South-Eastern Europe...... 22 9 automatic ...... State succession eaaino islto ...... 29 separation or dissolution ...... of human 20 rights treaties...... respect of human 15 rights treaties...... 13 ...... of treaties iii CEU eTD Collection III. Chapter Chapter Three: The higher standard of minority protection imposed on successor States III. .. Minority rights obligations 2.2. beyond treaty context...... 33 2.3...... 40 Conclusion .. International 3.2. standards of minority protection imposed on successor States of the International minority protection obligations3.1. of the SFRY before ...... 42 1991 ... The claim to consider 2.2.3. minority rights as The claim to consider minority2.2.2. rights as customary 34 law...... Going beyond the principle of 2.2.1. automatic State succession: the possibility of a The stabilizing interests 2.1.2. of the international 32 community...... Conflict settlement in Bosnia-Herzegovina: international standards 3.2.2. of minority ... The first independence wave (1991-1992): the minority rights requirements 3.2.1. of The Osimo 3.1.3. 59 Agreement...... The International Covenant on 3.1.2. Civil and Political 52 ...... Rights Treaty of Saint-Germain-en-Laye3.1.1. 43 ...... (1919) FYatr19 ...... 64 SFRY after 1991 of the SFRY by the international community...... 42 .... The Dayton 3.2.2.2. Agreement ...... 80 The Vance-Owen 3.2.2.1...... 78 Plan 3.2.1.3. Opinions of the Badinter Commission on the of Commission of fulfillment Opinions the the Badinter Guidelines 3.2.1.3. The EC conditions of recognition of 3.2.1.2. the post-Yugoslav The ...... 72 States EC Peace Conference 3.2.1.1. on Yugoslavia...... 67 The succession to the Osimo3.1.3.2. Treaty...... 62 The standard of the Osimo3.1.3.1...... 60 Treaty The (historical) effect of the 3.1.1.4. Minorities The allegedTreaty...... 51 termination of the3.1.1.3. Minorities ...... 49 Treaties A basis for further comparisons – the 3.1.1.2. threshold Internationalof minority obligationsprotection of Yugoslavia 3.1.1.1. under the Minorities Treaty...... 44 ihrsadr fpoeto ...... 33 higher ...... standard of protection rtcin...... 78 protection...... the the 66 EC ensured by the Minorities ...... 46 Treaty ...... 74 iv jus cogens ...... 37 ...... CEU eTD Collection Bibliography...... 113 Appendices...... 96 Conclusions of the thesis...... 93 3.3...... 90 Conclusion ... Reactions of the international community to the second wave of 3.2.3. independence: .... The standards required with respect of the independence 3.2.3.2. of The standards required as a reaction of 3.2.3.1. the Kosovo ...... 84 crisis h 00...... 84 the 2000s...... otngo...... 89 Montenegro v CEU eTD Collection (16 December 65. 4(1)EJIL 65 (1993),p. 1991). In: 1 States including the Federal Republic of Yugoslavia (FRY) were required not only to fulfill the fulfill to only not required were (FRY) Yugoslavia of Republic Federal the including States subscribedcommitments the with accordance in minorities toand in groups national theand ethnic of frameworkrights of the CSCE“ nation-States. new of birth the of victims becoming minorities protect to order in States successor on community international the by imposed requirements new the study to SFRY the of dissolution the of case the chosen has thesis present the why reason the is That minorities. instructive connection example between dissolution strong of the for and protection the especially dissolutionthe oftheSocial Federal Republic Yugoslavia of provided (SFRY) as an Among the independent States stemming from the dissolution wave of the 1990s, doctrinal precedent. vis-à-vis with a “clean hasstarts any new the States whether slate” or State newadditional obligations be in they – continueforce to before or exist, cease and to – bindingthe State predecessor the rules onthe questionswritten whether duties of the no minorityare There treaties“. protection rulesthe governing “in of out States successor conduct the of worked minorityrespect rights minority seemsbe anuncertain public areaof to protection international law,as it has yetnot successionGiven relation and State the between practice, lack the of a consistentState of States Research question: a higher standard of minority protection in case of dissolution Declaration ’Guidelinesonthe Recognition onthe of New States in Eastern Europe and in the Soviet Union’ The European CommunityThe European “theof guarantee SFRYthe successor to requiredthe States minorities. dissolutionthe served asa wavedecisive1990 after However, legal and Introduction –Definition ofthescoperesearch 1 1 as a condition of their recognition. The new CEU eTD Collection crystallized rules of international law in this matter or rather about a gray zone? what On zone? gray a about rather or matter in law this international of rules crystallized dissolution wave of 1990s the withminority respect to protection? Can we talk about this international SFRY undertake minority of standard Whatprotection? has changed after the minorities of protection beforethe 1990? If yes,to standard? Did whatwasthat the respect law” international by required standard “minimum a there Was questions: several raises minorities forming a local majority in a certain area. certain a in majority local a forming minorities aspecial obligationa type the i.e.guarantee of autonomy for status, to States successor conventions protecting minority relevant in the enshrined rights minority implement to republics new obliges it the firstly, reasons: two for instruments international earlier the than stricter minorities 7 Republic of583. Weller(1992)], p. 86(3)AJIL Yugoslavia. 569 (1992)[hereinafter: In: for 6 Commission European of the of Minorities Democracy and Law Protection in the the frameworkfor of the CouncilConvention a of for Europe.” proposals the Minorities; Nations DeclarationsUnited for the onRights of of:proposals Persons account belonging to National appropriate or Religious Ethnic, “take to Linguisticand States successor expects Draft Furthermore, Europe. 5 the Crime of Genocide and the Convention on the Rights of the Child of the United Nations. Conventionof the ofElimination Racial Discrimination, the Conventionon the Prevention Punishmentand of 4 Ramcharan). Kluwer Law International, the Hague/London/Boston. Vol. 1, p.13-23. of 4 November 1991.3 In: The 501. (1998)], p. Hillgruber (1998) [hereinafter: International Conference2 on the Former Yugoslavia. Official Papers (ed. B. G. includedespecially in Article Yugoslavia, 2of on DraftPeace Treaty the the protection of of minorities. protection the which exceededby far minimumthe ever required by standard international law with to respect succession inprovide a alsoof humanto minoritybutState respect –, rights treaties protection human rights obligations assumed by the SFRY – on the basis of the principle of automatic Ibid. 2.c).; see Art. also Marc Weller: International Response The to the Dissolution of the Socialist Federal New the for of Paris Charter the and Europe in Co-operation and Security on Conference of the Act Final The a) par. 1.refers,2. Art. among others, to the CovenantInternational on Civil andPolitical Rights, the Community EuropeanConference The Convention.Treaty (1991-1992). Draft Provisions for Conventionthe Hillgruber: Christian Admission The of New States to the Community.International In: 9 (3) EJIL 491 This attitude of the international community following the dissolution of the SFRY the of dissolution the following community international the of attitude This 4 and particularly in non-binding instruments in non-binding particularly and 2 The rules forming a higher standard of minority protection are protection minority of standard higher a forming rules The 2 6 5 ; and secondly, it imposes on 3 which protects 7 with CEU eTD Collection to National ReligiousEthnic, or Linguisticand Minorities. UN Doc. A/RES/47/135 [hereinafter: the 1992 UN Belief;forEuropean Charter Regional or Minority Languages; Declaration on the Rights of Persons Belonging 8 ICCPR as a starting point seems reasonable since all further international instruments international all since further reasonable seems point starting a as the ICCPR Considering thereto. restricted not but standard, minimum a as (ICCPR) Rights Political Civilof and Covenant International the of 27 Art. from originated rights human the as rights minority understands study the Briefly, protection. minority of details the into go not will thesis As for the minority rights, as the special human rights in the focus of the study, the present rights minority of Notion succession and minority rights. has beensuccession, attempt analyzemade no to State possible the connection between State collapseof the SFRYand of the even more scholarly analyzedwriters rules obscure the of by internationalthe community as aconsequence of ethnicthe conflicts arising in sequencethe obligation on all successor States of future separations and dissolutions. presumption higher the the that of standard minority should formprotection a general caseof the dissolutionthe Furthermore, of SFRYthe may ratified State. by lead theirpredecessor to treaties the on based obligations the than protection minority of standard higher a them research reveals a closer international thatthe State, community theirpredecessor imposed on SFRY of the as compared with ethnic ethnicityStates the the composition successor the of of mainthe whichquestions thesisthe answer. intends to a rule conditions of customary international can we speakabout law in this matter? These are E.g. DeclarationE.g. the onElimination of All Forms of Intolerance ofand Discrimination Based on Religion or Although several authors have dealt with the requirements of minority rights imposed rights minority of requirements the with dealt have authors several Although thesis will The present conclusion fundamentalthe the dueto come that to changes in 3 8 detailing CEU eTD Collection nowadays generally by break-upexisting of the while casesof State States, other three the Considering birth the that State. of occurs another new States to a State of territory the of part newly uniting cases: the and ofStates, independent the transfer separation andthe of States, Archives and Debts [hereinafter: the 1983 Vienna Convention]. Convention];Vienna 2, 1.(a),Vienna B) Convention Art. on Succession of States in respect of State Property, 11 p. 339. Pellet (1991)], 37AFDI 329(1991) [hereinafter: In: 10 26.). (par. forEuropean Charter Regional or Minority Language; theExplanatory Notes of the Framework Convention 9 Treaty FrameworkSeries Convention]. – No. 157[hereinafter: Declaration]; Framework Conventionfor the Protection of National Minorities. Council of Europe, European relations of territory”. the by “the replacement treaties: inanother State of one responsibilitythe internationalfor the The traditional literature. the legal definition succession is of State found in Vienna the two succession under encompasses this common awide treated of notions State range notion by States Notions of State succession – restriction of the research to the separation of community. international only States as strictly of successor the the necessary, attitude the on rather concentrating of and SFRY the of law constitutional the examine will it SFRY, the of dissolution the of case the on byconcentrating standards these examines study present the Although ICCPR. the of the international community on successor States of the SFRY extending the meaning of Art. 27 as the rights enshrined in Art. 27of the ICCPR. notes. extendingandmeaning the of minorityleastin at ICCPR, the rights their refer to explanatory E.g. seeE.g. thepreamble of the 1981 UN Declaration that of and the 1992 UN Declaration; the preamble of the A) Art. 2, 1. (b), Vienna Convention on Succession of States in respect of Treaties [hereinafter: the 1978 the [hereinafter: of Treaties respect in of States Succession on Convention Vienna (b), 1. 2, Art. A) AlainPellet: Note surCommission la d'Arbitrage de la Conférence Européenne pourpaix la en Yougoslavie. 9 Moreover, at the time of the dissolution of the SFRY, minority rights were understood were rights minority SFRY, the of dissolution the of time the at Moreover, The “higher standard of minority isprotection” as a standard understood imposed by 11 Under State succession, the literature succession,the envisages Under State four different 4 10 CEU eTD Collection Considering legalitythe about debates strong the of declarationKosovo’s of independence and international requirements of minority imposed successorprotection States. the upon to the sequentwave whichof formerthe territory concerned the Yugoslavia and led between 1991 and 2006 break-up of successions which State. entail predecessor of the of territory the decrease the the SFRY and the FRY, controversial, of theoretical, than of practical rather by andare importance arevery literature the or Kosovo unilaterally declared its independence. its declared Kosovo unilaterally on21 May held referendum 2006 expressedthe will. after on17February Finally, independence this 2008, of StateUnion tothe Montenegro was2006, Montenegro Serbiadeclaredtransformed (2003-2006). In and of FRY After the establishment (1992). FRY 1992,the the existed 2003 Macedonia(1991) and when until it Bosnian of end 1991-1995), the Former war, Yugoslavthe the at RepublicHerzegovinaterminated (which 19 of doc.p. 199-209(1978). Nations, United Treaties, A/CONF.80/16/Add.2, 18 ILJ36. 29(1995),p. Cornell Michael P.Scharf: Musical The Dissolution Chairs: of States andMembership United inthe Nations. In:28 17 territory of the State without aremaining Predecessor State, one speaks about “scission”. Ibid, p. 22. 16 22. 15 Etats. Université Panthéon-Assas, Paris 2., 2000. p.21. (doctoral thesis) Vahlas: Alexis Les séparations d’Etatsa “sécession”. –l’Organisation des about Nations speaks Unies,one sécession la action, des peuples latter’s ofthe et l’unité desconsequence direct a is separation of the fact the 14 13 12 (like of of States separation categories State continues to exist” continues to State predecessor the not or whether States, more form or one to separate of a State territory the succession remain study willunimportant, the of States. separation focusthe on I.e.: the dissolution of SFRY dissolution the the consisted I.e.: of of separation the Slovenia (1991),Bosnia- (1991),Croatia Applied by Art. 34 of the Vienna Convention of 1978. Vienna Convention on SuccessionSee e.g. 2000. of and 1991 FRYbetween States by the required intitle respectState” “continuator the about debate the See e.g. According to Vahlas, if the separations take place simultaneously involveand the dissociationof the whole According toVahlas, iftheseparation disappearancethe of the State, one speaks about “dissolution”. Ibid, p. “sécession”, whichis defined by Alexis Vahlas: if the will of separationstems from the detached entity, and Art. 17, 1.,See supra fn. 11B). Art. 34, 1.(a), See supra fn. 11 A). As for the territorial thesis, and present itAs territorial timethe the of for focuses separation on scope the Under the 1978 Vienna 1978 the Under Convention, meansseparation case the when of parts “a partor 17 so the study will study the in“separation” so consider sense, broad the 12 and the 1983 Vienna Convention givesasimilardefinition. Convention Vienna 1983 the and secession 5 14 , dissolution 19 from the point of view of the 15 , scission 16 ) are further) are divided 18 i.e. all State all i.e. 13 The CEU eTD Collection to the dissolution of the SFRY [Genocide case (Bosnia-Herzegovina v.Serbia-Montenegro); (Bosnia-Herzegovina case [Genocide SFRY the of dissolution the to Formerthe Yugoslavia. Yugoslavia (Badinter Commission) (Badinter Yugoslavia will take intoand reflecting minimum the standards which can be imposed The on study successor States. account the opinions of the Arbitration Commission of the Conference on Montenegro)]. Herzegovina v 25 1997. Hague, KluwerLaw International, 24 ILM1494-1526. 1494(1992),p. 23 Recognition of New States in EasternEurope the Sovietand in Union’. or universal the SFRYandUnion. Sovietof the relevant Asfor the legal study focuses on the sources, scholarly emergedwritings from that dissolutionyearsthe of recent new reactingthe States on internationalreviewed The literature organizations. by study the encompasses especially the study analyses relevantthe international doctrine, the the instruments, and practice of the States law: international public of sources the also follows methodology The law. international public of view of point the from exclusively topic the examining to restricted is study The Methodology itas aterminatedtreating separation. 22 DiscriminationBased onReligion or Belief). Forms of Racial Discrimination, Declaration Eliminationofonthe All Forms of Intolerance and of Prevention Punishmentand of the Crime of Genocide, minoritiesthe (Charter of the United Nations, Universal Declaration of Human Rights, Convention on the National or ReligiousEthnic, Linguisticand Minorities (A/RES/47/135); orthe material concerning indirectly 21 of Institutions Self-Government of Kosovo (Request forAdvisory ICJReportsOpinion), (2008). 20 the current proceedings current on it,the Applicationof the Convention onthe Prevention Punishmentand of the Crime of Genocide (Bosnia and Conference International onthe Former Yugoslavia Official : Papers. Edited by B. G. Ramcharan. The Opinions No. 1to 10 of the Arbitration Commission of the Conference on Yugoslavia. Reproduced in:31 International Covenant International Civil on Political and Rights, Declaration on the Rights of Persons Belonging to Provisional by the of Independence Declaration Unilateral ofLaw the International with SeeAccordance European Minority Languages; European The Convention onHuman Rights; Declaration on the ’Guidelines on the 21 and European Framework . Serbia and Montenegro) [hereinafter: Genocide case (Bosnia-Herzegovina v. Serbia- (Bosnia-Herzegovina case Genocide [hereinafter: Montenegro) and Serbia Conventionfor the Protection of National Minorities, EuropeanCharter 24 The cases beto examined are the contentious cases of the ICJ related 22 treaties and declarations including provisions protecting minorities protecting provisions including declarations and treaties 20 the thesis will take into account only its tendencies without tendencies its only account into take will thesis the 23 and official the of International the papers Conference on 6 International ConventionInternational on the Eliminationof All for Regional for 25 CEU eTD Collection automatic State succession. State automatic minority anyrules are to related rightsstricter whether there which exceed bare the rule of or not to conventions humanparty earlierto obligation was not treaty rights –either because treaties its predecessor protecting any of absence inthe even obligations rights minority have States successor State. whether will ask It predecessor the of minority obligations treaty the of irrespective rights minority rights.protecting rules So, thiswill by Two find Chapter internationalthe try to stricter State, conventions of predecessor the chapter will since Furthermore, succession. Oneconcernedonly Chapter State of answerhuman rights protected in case rights human within rule particular any the present rights human questionspecial as rights minority manner.stricter succession in couldtreaties beexceeded respectof by humana rule protecting rights in a continuewill chapter This rights. minority namely rights, human special of respect in to trendsetting examine whether succession in of human State respect the of context rights, since broader theserules are in the on the succession inof human This concentrates respect chapter State treaties. rights rules of doctrine commonly acceptedSFRY. the of dissolution the of case concrete the on focus will it finally, and rule obligation treaty any of automatic successionof inminorityminority respect State of related to then those treaties, rights,lack of State [hereinafter: Revision[hereinafter: of ofJudgment the 11 July 1996 case]. ObjectionsYugoslavia),Preliminary (Yugoslavia Herzegovina), v.BosniaICJ Reports, Judgment, and 2003 Conventionon the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina26 Revision of Judgmentthe of 11 July 1996 case; Application for Revision of Judgmentthe of 11 July 1996 in the case concerning Application of the Chapter Two will narrow the research to minority rights: it will examine whether examine will it rights: minority to research the narrow will Two Chapter study analyzes One,the In Chapter doctrinal the majority opinion accepted the about rules the analyze firstly will it special: the to general the from logic a follows thesis The 7 26 Croatia v. Serbia Croatia case 27 ]. v. CEU eTD Collection Serbia), Applicationinstituting Proceedings, 1999 [hereinafter: Croatia v. Serbia case]. 27 chapter will answer the question whether the higher standard of minority protection required in case of dissolutionthe in practice SFRYhadof decade. the any recent required the State consequent protection minority of standard higher the whether question the answer will chapter this Finally, analyze. will part this which instruments international various by defined were which succeeded. New minority theto newStates ICCPR) rights and specified duties State the (mainly era War Cold the under instruments international the by minorities to ensured requirements claimedby internationalthe community whichafter 1990 exceeded protection the the means thesis this protection”, minority of standard “higher Under SFRY. the of minority internationalthe to related rightsthat community from expected States successor the international obligations this chapter will State, of predecessor the study higherthe standards as wellSFRY, as theirdestiny dissolutionthe the after by of SFRY.the Beyond existing the ratified were which minorities protecting treaties rights human international the examine willThree analyze. specificMovingthe rules from to abstract the Threewill case,Chapter international community dissolutionthe sequenceof the of SFRY,the whichtowards Chapter succession rule inof minorityirrespective respect special of the of protection, the attitude Application of the Convention onPrevention the Punishment of and the Crime of Genocide (Croatia v. The conclusions of the first two chapters willchapters The conclusions firstthe two of give a general overview State the about 8 CEU eTD Collection Treaties: Is There a Case for IsThere Automaticity?Treaties: Rasulov 148. 14(1)EJIL 141 (2003)[hereinafter: (2003)], p. In: 30 p. 465. (2000)], Poupart [hereinafter: successioncodification la Nijhoffà l’épreuved’Etats: des p. 465-492. faits. 2000, Publishers, Martinus individus.Pierre MichelIn: Eisemann –Martti Koskenniemi, Hague Academy of Law:International La Successionaux traités et droits de l’homme: vers lareconnaissance d’une protection ininterrompue des Ruiz 104.;Isabelle fn. (2003)],p.95., Poupart : (2003) [hereinafter: of 42 Rights Human Journal International of StatesUniversal in Treaties on the Protection of Human Rights andHumanitarian Law. In:7(2) The Ruiz Florentino (1998)], p.26.; Ruiz:Succession The Müllerson Hague/Boston/London. The 1998 [hereinafter: Brigitte Stern(ed.): Dissolution, Continuation Successionand EasternEurope.in Martinus Nijhoff Publishers, 29 pp. 199-209(1978). A/CONF.80/16/Add.2, 28 State, predecessor The majority opinion prefers akind automaticity of inobligations respecting treaty the of the continue automatically to humanStates the State. successor of predecessor the rights treaties some why reasons are itsthere recognition.but couldone accept Neither existenceparty. hasthe of suchacustomary rule been confirmed by any judicial body, its independence by obligationsthe of human was which to State rights treaties predecessor the principlea recognized remainswhich accordingState to successor bound from the timethe of never law has international Public rights. human to related conventions the mention not providesfor special certain liketreaties boundary regimesregimes, territorial and it other does Although Vienna the Convention of 1978 on Succession inof States of respect Treaties 1.1. See e.g. Ruiz (2003), supra fn. 29, p. 44.: AkbarRasulov: fn.29,p.44.: supra (2003), RevisitingRuizSee State e.g. Successionto Humanitarian ReinMüllerson: Law Politicsand Succession in of States: International Law on Succession of States. In: doc. Nations, United ofTreaties, respect in of States Succession on Convention Vienna See obligationof an supporting arguments several elaborated doctrine the However, I. towards an automatic State succession State succession in respect of human rights treaties: a controversial way Chapter One: Majority opinionaboutState succession in 30 whereas the concept of of “clean concept whereasthe slate” ( respect ofhuman rightstreaties 9 tabula rasa ) doctrine grants ) doctrine 29 28 CEU eTD Collection (Bosnia-Herzegovina v. of Serbia-Montenegro), Judgment 26 February ofopinion 2007, Separate Judge Tomka. Separate opinion of opinion Separate of UN, ECHR organs and that of the States. practice the with argue seventh the and sixth fifth, whilethe Convention, Vienna the of 34 Art. theuniversalbased on values by represented human fourth rights,the explains this theory with isconventions, second analogy the the acquiredbetween rights andhuman rights, third the is thesisthe will “clean supporting the counterarguments the into account take slate” concept. its validity. See does refuteneither Court ofsupportnor the claim the of automaticitythe jurisprudence rule, butthe itis Briefly, significant case. severalthat v. Serbia judges Croatia recognized the finally and 2007 in case Genocide the Revisionthe of Judgment of in 2003Judgment 11 July the the Montenegro),1996 case, the judgment offinal Judgment of 1996 on the Preliminary Objections inthe Genocide case (Bosnia-Herzegovina v. Serbia- respect of the Genocide Convention on several occasions, among which one can33 highlight four steps: the 490-492. (1993)], p. Müllerson ICLQ 473(1993)[hereinafter: Müllerson, Continuity The Successionand of States, by Reference to the Former USSR and Yugoslavia. In: 42 25 Hong Kong LawIn: Covenants. 169(1995),p.176.;ReinJournal Applicability of International the Aachen, Hong Jayawickrama: Verlag, in Rights Nihal HumanKong.Continued p. 243.; The (2002)], Jäger Shaker [hereinafter: 2002 Treaties.] Rights Human and Succession State Jäger: [Philipp Menschenrechtsverträge Jäger: Staatennachfolge und Philipp (2000)], p.577.; Zimmermann 2000 [hereinafter: Berlin, Respectof Treaties. AnApport to the Possibilities Limitsand of a Codification of Law]International Springer, den zu Betrag ein Zugleich Möglichkeitenund Grenzenvölkerrechtlicher Verträge. Kodifikation. [Andreas Zimmermann: State Völkerrechtliche Succession in in Staatennachfolge Zimmermann: Andreas 52.; p. RuizO’Brien fn. 29, (2001)],p.596-97.; (2003),supra 2001 [hereinafter: Law. Taylor &Francis, International O’Brien: John p. 466.; 29, fn. Poupart (2000),supra 469-484.; (1996)],p. Kamminga [hereinafter: (1996) 32 a Case for IsThere Automaticity?Treaties: Rasulov 148. 14(1)EJIL 141 (2003)[hereinafter: (2003)], p. In: 31 succession inof human respect State automatic rights treaties. Europe. of practice Central by and among State Eastern the rights scholarstreaties andsupported is there succession agrowing need practice, for automatic State the in State of humanrespect predecessor States or not. or States predecessor joindecide whether to choice free international the the to of States treaties theirsuccessor As for the practice of the ICJ, its jurisprudence concerned the question of automatic State succession in succession State of automatic question the concerned jurisprudence its ICJ, ofthe practice the for As SuccessionState Respect in Kamminga, T. ofMenno Seee.g. 7(4) In: EJIL Treaties. Human Rights 469 AkbarRasulov: fn.29,p.44.: supra (2003), RevisitingRuizSee State e.g. Successionto Humanitarian The first argument for the continuity is the lack of termination clauses of human rights human of clauses termination of lack the is continuity the for argument first The In what follows, the study will summarize the arguments of the literature supporting the The final conclusion of this part is that although there is no unequivocal, consistent unequivocal, isno there although that is part this of final conclusion The Genocide case Judge Shahabuddeen, (Bosnia-Herzegovina v. Serbia-Montenegro) v. (Bosnia-Herzegovina 31 of Judge Weeramantry, of Judge Parra-Aranguren; Genocide case Genocide Parra-Aranguren; of Judge Weeramantry, of Judge 33 10 , Preliminary Preliminary Objections,, ICJ Rep. 1996, 32 Parallel to these arguments, these to Parallel CEU eTD Collection impactmake this argumentconsiderable. danger of such a legal gap in human rights and its negative treaties moral and destabilizing calls an “accountability gap”, deprived of the protection guaranteed before the State succession. before guaranteed State the deprived protection of the casea breakin of the human rights population the protection, of territory the would be bea material suspendedin terminated or to response breach by party. another humanprovisionno protecting rights contained inthat of treaties humanitarian maycharacter Vienna 1969Viennathe Treaties (the Lawof the Convention on Convention), which declares Kammingathis adds, special human of character is rights also treaties reflected in of 60(5) Art. 38 215. (1996)], p. Degan 42 AFDI 206 (1996)[hereinafter: SuccessionLa des etDjuro Degan: en nouveauxmatière traités les d’Etats Etats (issus de l’ex-Yougoslavie). In: see44; also fn. Ruiz fn. 29,p.63.;Vladimir- of (2003),supra infra Judge Weeramantry, argumentation the GenocideShahabuddeen, case (Bosnia-Herzegovina See 635, 637.; 25, p. also fn. v. Serbia-Montenegro), supra 37 36 Court Case, 41. DecisionCompetence, onthe par. Constitutional 24September13., 1999, p. Case,See Decision Bronstein Ivcher onCompetence,treaties. the 42; 24Septemberrights par. 1999, p.11., HumanRights, Courtestablished the inboth case its competence, referring to the special character of human 35 also Rasulovp. 152.; 31, fn. (2003), supra theapplicationterminate of ICCPR.the See UN Doc. CCPR/C/21/Add.8/Rev.1, General Comment 26.; See 34 ICCPR the under obligations the of termination the 26 Comment General its in prohibited Committee Rights Human the Moreover, clauses. termination contain not do conventions rights Human See Kamminga (1996), supra fn. 32, p. 484. 32, fn. supra (1996), See Kamminga same the case in before Two judges argument ICJ. Seethe used this Separate opinion of Judge See p. 473.; also 32, Rasulovp. 152. fn. supra 31, fn. (1996), See(2003), supra Kamminga of Court Inter-American of the competence the revoked it that cases ongoing two in declared Peru When 25 August on itwouldComment No. declared 26 was1997 Korea General that issued had North after The 1.1.1. 34 Beyond legal the side of this argument,one should keepin mind its moral aspect: in and the Inter-American Court of Human Rights followed also this view. this also followed Rights Human of Court Inter-American the and The irreversibility ofhumanrights treaties 38 where human rights violations remain unaccountable. The unaccountable. remain violations rights human where 11 37 That is what Kamminga what is That 36 35 As CEU eTD Collection similarreasoning Weeramantry Judge of in Bosnia the and Herzegovina v. Yugoslavia case to be protected by internationalthe be protected communityto as awhole. which value have universal of are rights human is that argument philosophical more Another, acquired rights and human rights is refutable,one should so arguments. lookfor other cannot becannot expressed in cash value. rights and humanitarian treaties do andhumanitarian rights not representexchange an of interests but aredesigned to protect the 44 43 42 41 changes, would be protected by the courts in alawful State”. See Lauterpacht (1977), supra fn. 39,p. 136. definitionsimilar given by Lauterpacht :“an acquired isany right which,right were there no territorial 40 Law 33. 12 (2007),p. 4(2)MiskolcYugoslavia.of Journal In: International EvolutionThe ofHasani: Succession Enver the p. 136.; (1977)], Process Lauterpacht inFormer [hereinafter: (ed.) 126 (1977) Lauterpacht of Collected Papers Lauterpacht Herschthe Law;Being International 3 : Hersch168.; Lauterpachtp. 31, Succession: of StatesRespectwith to Private Law Obligations.In : E. 39 assessable monetary value” incorporeal, or properly vested undermunicipal law in a natural juristicor person and of an power. becomeclaims voidnot do asaconsequence changeof the sovereign of State the the against validlyindividuals’ so enforced alsoagainstState, successor the rightsproperty and other heldprivate rights German canbe that the in Court case, the Settlers Poland that case.In by advisorythe opinionreferring of of to PermanentInternational the inJusticeCourt (PCIJ) scholarly Most humancompare writers rightsby analogy notion of the “acquiredto rights”, Judge Weeramantry mainly argues with the universal values of treaties. rights human He holds that human See Rasulovp. 151. 31, fn. (2003), supra p. 110. issue. 32, doubts fn. See expressedthis Jäger (2002), supra Jäger in similar See D.P.O’Connell: International Law, I-II. London, Stevens & Sons ( 1970), p. 763. (Advisory SeptemberPoland, PCIJ Series 10 1923, in Opinion) B,Settlers No. 6,at36.;See German the 596.; Rasulovp. 32, fn. fn.supra (2003), supra (2001), O’Brien 27.; p. 29, fn. supra (1998), Müllerson E.g. 1.1.3. 1.1.2. 40 However, under the definitionthe under However, of O’Connell, acquired rights are“any rights, corporeal Human rights represent universal values Human rights as acquired rights: are theydirectly granted toindividuals? 41 . This definition excludes its applicability to human rights, as these as rights, human to applicability its excludes definition This . 42 Thus, the argumentation argumentation based the on analogythe Thus, between 12 43 Most authors refer also to the 44 39 CEU eTD Collection Treaties does not deal particularly not does Treaties with human them grants but the rightssame treaties, of in respect States of Succession on 1978 of Convention Vienna the above, As mentioned the Vienna Convention, aprovision that the next point will discuss. automaticity itisruleproposes, and, wiser examine asPoupart to practice and State 34of Art. These value-oriented claims do not seem in themselves sufficient to prove an basicthe human rightsthe of areof person” 47 46 45 ofopinionSeparate 645-653. fn. 25, Judge pp. Weeramantry, supra Serbia-Montenegro), v. (Bosnia-Herzegovina case See Genocide treaty). the to State new of the accession continuation treaties,ofrights citizens human the would be left unprotected during the periodinterim (until the irrespectively of State succession. other The arguments arebased onthe problem that without automatic whichbecame part of customarythe law international (like the prohibition of genocide) remain valid Reports23.), 1951,p. thesame can be said of treaties.rights all human Fifthly, rules protecting humanrights States”Reservations in to Conventionthe Preventiononthe and Punishment of the Crime of Genocide (ICJ the principles underlying the Genocide Conventionwere recognized “by the civilized nations as binding on “by virtue of humanity”, Statestheir the only the recognizetreaties. in rights human Fourthly, he finds as that arenotThirdly, agift rights given human by the State butthem. they entitlement are an to concern not whichdoes people sovereignty subjectof the werethe in born succession so the concern, ofuniversal are they as sovereignty ofState boundaries beyond the far are treaties such i.e. sovereignty, of State concepts transcend communityinternational as awhole intereststhan rather of particular States. Secondly, treaties humanrights d’être commonnamely, interest, accomplishmentthe high whichof those purposes are the enshrine not conventions do but abalanceparties, “a reciprocal State of the of interests called (often treaties “law-making by doctrine the or“universal treaties” whichtreaties”) earlier ICJ the existencerecognized must the be that noticed of a It special States. of category or to the Barcelona Traction Barcelonathe Traction case to or See Poupart (2000), supra fn. 29, p. 469. 29, See fn. supra Poupart (2000), Reservations to the Convention on Genocide, Advisory Opinion, ICJ Reports (1951), p. 23. See Barcelona Traction, Light Power and Company, Limited, Judgment, I.C.J. reports 1970, par. 33-34. 1.1.4. of convention”. of the respect treaties of In case of separation,Art.34 codifies Statesuccession the automatic in 46 45 , where the ICJ held that “principles and rules concerning rules and “principles that held ICJ the where , 13 erga omnes nature, i.e. invokable against all against invokable i.e. nature, 47 raison CEU eTD Collection customary customary validitylawthe andhas about expressed doubts of this article. Considering the heterogeneous State practice, Considering State heterogeneous the 51 p. 397. 36/3 RBDI Dumberry In: (2003)], 377 (2003) des– Turp [herainafter: traités. de continuité présomptiond’une l’émergence à rase table dela principe du secession: la de cas le et detraités matière en d’Etats succession see p. 779.;Similarly, P. Dumberry 38, (Bosnia-Herzegovinafn. La – D.supra Serbia-Montenegro),v. Turp: Whole, 48 Whole, 50 Bangladesh. and Singapore 49 rasa in their historytheir in by the separation. Slovakia,Slovenia, the Former Yugoslav Republic of Macedonia, Ukraine Yugoslavia,and allof them affected remarkable Stateamong thatthe Parties,one finds Bosnia and Herzegovina, Croatia, the Czech Republic, 48 State succession inof State treaties: respect codifies (1) 34 automatic case of In the Art. separation, types of treaties. as other treatment reflect not a customary rule following for the reasons: does provision this that admitted be must it However, requirements. formal any without This provision unequivocally succession State in automatic the requires of allrespect treaties See: It was It recognized by Francis Vallat,memberSir of the ILC. See Summary Records, ILC, Committee of the Examples of separation before the adoption of the 1978 Vienna Convention: theseparations of Pakistan, However,for “newly independent States” (States born of decolonisation), the convention codifies the principle, see Art. 17 (1). see Art. principle, - - - predecessor State continues in force in respect of each successor State soformed; State successor of each respect in force in continues State predecessor (a) any treaty forcein at the date of the successionof States inrespect of the entire territory of the exist: to continues State predecessor orparts of the part a Whenterritory of a State separate to form one or more States, whether or not the http://untreaty.un.org/sample/EnglishInternetBible/partI/chapterXXIII/treaty2.asp Separated successor States very often chose the “clean very the chose often States slate” rule successor than rather the Separated The ViennaConvention came intoforce only indecades after its almost1996, two In the 1970s, the ILC could not base ILCcould itsIn the 1970s,the not on an work abundant practice, State multilateral with treaties a limited number participants. of or bilateral agreements, military political, of case in especially rule, automaticity willingness of States to accept its provisions.willingnessaccept to of States codificationonly and have Parties ratified17 State it codified “progressive the development of law”. th meeting, 8 August 1978, p. 105, par. 10.; It is the ofopinion the Itis Judge 10.; Kre 105, par. 8 August1978,p. meeting, 48 14 53 the doctrine does not consider Art. 34 as 50 51 - a fact that indicates the low 52 ü a in the Genocidethe casea in 54 (29.12.2008). Itis (29.12.2008). Thus, this article this Thus, 49 tabula but CEU eTD Collection predecessor State in a humanState predecessor rights convention concluded by latter. the assumed ensurethe protection to practice requiring byconsequent newStates the the Rights (ECHR). Human on Convention European the of bodies the of that point, next the under and bodies views of the treatyneverthelessimpliedly,could if practice accept reflect State States the protestation without body. 56 55 p. 219. RBDISee Bojanic 37, 494.; fn. (2000)],p. also 489(2000)[hereinafter: (1996), supra Degan étatique matièreen de succession aux traités de la République Socialiste Fédérative de Yougoslavie. In:33 See779.; de also Bojanic: Marc 25, p. d’appréciation la pratique Éléments fn. Serbia-Montenegro),supra law international public of source indirect subsidiary, Although special bodies independenttreaty are can thus of only States, the provide a (2003), supra fn. 50, p. 397.; It is the opinion of is the Judge It Kre 397.; p. 50, fn. supra (2003), Öffentlichesof und Ausländisches Rechtfür 2 Zeitschrift 259(1979), respect p.279.;Dumberry In: in – Turp Treaties.] Succession State on UN Convention The Treviranus: D. [Hans Verträgen. bei Staatensukzession über Die Nationen KonventionVereinten der D. Hans Treviranus: (1994)],p.1.; Williams [hereinafter: (1994) Czechoslovakia: do they continueforce? in In: 23(1,Fall) Denver Journal of LawInternational and Policy Williams: Treaty The Obligations of Successorthe States of the Former Soviet Union, Yugoslavia, ed.its (1999),p.129.;PaulR.4th in opinion Similar 135.]. p. 1990, Münich, edition, Law.3rd International Public Ipsen: 135. [Knut 1990,p. Auflage, 3. Völkerrecht. Ipsen: München, 488.; Knut p. 32, fn. supra 54 53 52 vacuums continuity and stability relationssuccession,of notwithstandingtreaty aState theoretical and practical influence: doctrinal the arguments in favour 34(1)arethe of Art. legal strong basisserve asa cannot for automaticitylessen the not it does rule. However, its See Degan (1996), supra fn. 37, p. 217. 37, See fn. (1996), supra Degan p. 487. 32, See fn. (1993), supra Müllerson See e.g. Poupart (2000), supra fn. 29, p. 472.; Kamminga (1996), supra fn. 32,p.484.;Müllerson (1996),suprafn. (1993), Kamminga 472.; p. 29, fn. supra (2000), See Poupart e.g. See infra, point 1.1.8. p. 217. 37, fn. (1996), supra ; Degan p. 489. 32, See fn. (1993), supra Müllerson 1.1.5. From the State succession wave State in the From 90s,UNbodiesthe have less amore or presented ” and the principle of “ respect of human rights treaties The practice of most UN bodies supports the automatic State succession in 58 Thus, the thesisThus, the will examine of practice special the UN treaty pacta suntservanda 15 ”. ü a in the the a in Genocide case (Bosnia-Herzegovina v. 56 57 and their views are not binding, they binding, not are views their and 55 avoiding “legal CEU eTD Collection the treaty bodies are of the view that the successor States areboundcontinue treaties the to States successor the viewthe bodies of are that treaty the wording of the resolutions speaking about a “confirmation” of existing treaty obligations treaty existing of “confirmation” a about speaking resolutions the of wording 63 des organisations internationales. International Law Association,Taipei Conference, 1998, p.17., 18. successiond’Etats enmatière de traités constitutifs d’organisations internationales et de traités adoptés au sein la sur Rapport Préliminaire Stern: 508. ;Brigitte 54, p. fn. fn. 102.;Bojanic (2000),supra 18., 54, p. fn. supra 62 Decemberin 1994, UN 31. Doc. par. A/49/537, E/CN.4/RES/1995/80,2.; Seepar. also the fifth meeting of the persons treaty the rights human chairing bodies respect of Conventionthe Eliminationofonthe All Forms of Racial Discrimination, UN Doc. 61 60 Comment No. 26 is also based on the continuity of treaty obligations. See supra, fn.34. FRY did notsimilarly perceives thiscompliance as arecognition of automatic Stateconfirm succession to the ICCPR although the automaticity rule.See: UN Doc.CCPR/C/SR.1201, 2. The Comment p. to itsthe report submitted by the FRY succession. the submissionof the report thecompliance and of Croatia with the Committee as arecognition of the by Bosnia-Herzegovinaimplied asan recognitionof the automaticity rule. Similarly, the CommitteeSee considered Covenant.UNSee: UN Doc. CCPR/C/SR.1178/Add.1,Doc. p. 2. The Committee considered the submission of the report “allCCPR/C/79/ADD.16,peoplesthat the withinthe territory of the formerYugoslavia entitled are to the guarantees of the submit reports, while supposing they that allboundare by ICCPRthe as successor of the SFRY. It emphasizes 233-243. Furthermore, Humanthe Rights Committee required Bosnia-Herzegovina, Croatia andthe FRY to p. ReportsRights Human 2., 233(1992),p. 15European In: PoliticalRights. CovenantCiviland on International the par. 3. Finally,59 the58 General57 this notification to contribute a constitutive force. succession the notificationthe of excludes about depositary ofthe automaticity since they confirm to all relevanturged theirthe States successionhuman successor to rights treaties. submission nationalof the report. independence should instead of succession, Committee the continue disapproved “the thisof date that practice and noted to be the starting point” for all the obligations except for the Racial Discrimination chair human of the the or persons rights (CERD) bodies treaty apply human rights treaties.” former [of the Yugoslavia] States successor continuepresume wouldnot that to to reason See e.g. UN Doc. E/CN.4/RES/1993/23, par. 1., fifth phrase of the preamble and first paragraph. (1994), Seeabove fn. 37,p.225.;Williams p. 155-157.;Degan (1996),supra 31, fn. Rasulov (2003),supra See theGeneralRecommendation XII (42) of the Committee on the Elimination of Racial Discrimination in 67. CCPR/C/SR.1332, par. p. 12., Human Rights Committee Decisionon State succession to the Obligations of the Former Yugoslavia under p. 76. 32, See fn. (2002), supra Jäger p. 78. 32, See fn. (2002), supra Jäger Some authors criticize of practice the authors special Some bodies requirementthe treaty stating that In 1992, the Humanthe In 1992, Rights Committee issued a resolution stating that “there was no Other important special treaty specialimportantbodies, such Other treaty as theCommittee Elimination on the of 59 When the successor States of of SovietUnionthe When accessionchose States successor the 60 16 62 However, this claim is refuted by the 61 also 63 - CEU eTD Collection consistently followed automaticity the rule. Rights – as a functional commission of the UN Economic and Social Council (ECOSOC) – bodies. perceived asaformality serving with legal the respectivecertainty cooperation andtreaty the accession. retroactively of Covenantfrom theirindependence,respective date from of date the not the itconsidered Committeethe them declared that instead bound succeedingby of thereto, the succession bound by as ICCPReventhe States certain lack Committee of any treated confirmation of E/CN.4/RES/1995/18, par. 1. par. E/CN.4/RES/1995/18, UNsee 1.; UN UN Rights, 1.; Doc. par. Doc.E/CN.4/RES/1993/23, Doc. par. E/CN.4/RES/1994/16, 68 583. UN body, Security the ICRC fn. 32,p. monitoring and the Council (2000),supra did.See the Zimmermann SFRY conventions aspartiesto the humanitarian USSR until they and of the haveStates declared successor they consider succession not did or accessionGovernment Swiss thereto,the Convention, Geneva of the depositary doesand clearly not refute the above mentioned practice of treaty rights human bodies. Similarly, whereas the Yugoslavia[UN Doc. S/24795(11November (b)].However, VII.,Appendix, 1992), Annex no legal force has it constitutivethe force of notificationthe was supported by the ConferenceInternational on the Former supra fn. 37,p.219.; thepractice Onthe other hand, of bodies rights nonhuman is inconsistent. It seems that law,does not awritten require notification to the depositary in case of succession to a treaty. See Degan (1996), by Art. 38(1) of the 1978 Vienna Convention, which, no matterhow weakly it reflects customary international is confirmed it addition, In 68 BYIL Succession.(1997)],p.145.; CravenState In: 127 (1997)[hereinafter: and 67 4. CCPR/C/79/ADD.38, par. Committee disapproved method the of accessionused by post-soviet republics instead of succession, see 66 or accession to the ICCPR, see UN Doc. A/55/40(VOL.I), par. 64. Kazakhstan to submit report anational notwithstanding the fact Kazakhstanfailed that to notify its succession similarly 3, 7.orcasethe par. in of FRY,the see CCPR/C/79/ADD.16, par. 3.; the Committee requested 61. 65 fn. above, See of confirmation. declaration bodiesDecember in 1994 expressly emphasized thatthe automaticity rule applies notwithstanding the CCPR/C/79/ADD.16,3. Finally,par. the 2., fifth p. meeting of the persons treaty the rights chairing human its view the onexistence of automaticity even lack of any confirmation of succession. See UN Doc. treaties.See: E/CN.4/1994/SR.41, p. 11-12. Furthermore, asnoted above, the Human Rights Committee based confirmationsuccessionon only declarative force, thus supported the Russia 41st onthe Chile meetingand of the Commission on Human rights since both contributed to the 64 ipso jure As Secretary-General, forthe see UN Doc. E/CN.4/1996/76, 9. par. ; As for the Commission onHuman Genocide The p. 544.;Matthew Craven: 32, Case,fn. Law the supra of(2000), Treaties SeeZimmermann See See 41.; also A/48/40(PARTI),e.g.A/51/40[VOL.I](SUPP),par. Nevertheless, I/A.; Annex the Vol.I., after submission E.g. the of national reportthe by Bosnia-Herzegovina, see UN Doc. CCPR/C/79/ADD.14, of representatives of the comments tothe also He refers 544. p. 32, fn. supra (2000), Zimmermann See 67 Beyond special bodies, Commission Secretary-General and the the treaty on Human from the date of of independence. from date the 66 65 All these facts prove that the requirement of the notification of succession can be and even in cases where post-Soviet republics chose to accede to the ICCPR andevenrepublics the in accedeto caseswhere choseto post-Soviet 64 68 Furthermore, in several Furthermore, Humancases, the Rights 17 ipso facto continuationof rights human CEU eTD Collection Union or by the SFRY. Both the Czech UnionbyRepublic or SFRY. Both the andSlovakia declared notwithstandingthat The ECHR was ratified before 1991 only by but Czechoslovakia, not by the Soviet Ministers. of Committee the by exclusively is made decision which organization, international the of membership the to admitted canonly State become Convention.the Thus, asuccessor amember being ECHRafter the of Art. 66 Art. The legal succession problem in with anautomatic State of ECHRisthe respect thatformer all to parties human States. are State of theirrights treaties predecessor 73 72 71 70 69 succession. become members to least respective of the human by whether rights treaties, accession by or succession inof human respect and at rights all treaties States of them successor encouraged One can nevertheless state that most UN bodies required more or less an automatic by States. successor treaties the bodies equally sincein two question the latter these accession accepted and successionthe to and Committee the Rightsthe on Committee Child of againstthe Torture remained indifferentthe it, supported partially Women against Discrimination of Elimination the on Committee the viewsthe andrule, of Committeethe Economic, on Social and Cultural Rights, CERDand the automaticity the supported clearly Rights Human on Commission the and bodies rights human See Zimmermann (2000), supra fn. 32, p. 572.; Jäger (2002), supra fn. 32, p. 227. 32, fn. (2002), supra Jäger p. 572.; 32, fn. (2000), supra See Zimmermann Since the entry into force of Protocol 11 on 1November 1998, Art. 59. Genocide the have not signed Convention. Turkmenistan and Tajikistan 01.09.2009, until E.g. p. 242. 32, See fn. (2002), supra Jäger See a deeper analysis on the practice of all these bodies at Jäger (2002), supra fn. 32,p. 235. 1.1.6. 72 Although the practice of Humanthe Although of Rights practice the Committee, meetingthe of chairmenthe of provides that only that provides a member Council of the is become entitledof Europe party to to 70 Their troubles achieved that most successor States –with very achieved States troubles Theirsuccessor mostfew that exceptions The practice under the ECHR supports the automaticity rule 69 73 18 71 – CEU eTD Collection ECHR on the basis of the successor State’s expressed will to do so or on basisexpressedthe willbasis on the State’s so or of successor on the of the do ECHR to did recognize succession the Court the clear whether from practice the in not of the respect In sum, the practice of the bodies under the ECHR supports the automaticity rule. It is 2004 and5June 2006aswell as thereafter”. continuously been inin force as of respectof Montenegro 3 March 2004, between 3 March held in Conventionthe Court “shouldthe a recentcasethat beFurthermore, deemed ashaving State. of predecessor the treaties the as“succession” to expressly process the recognizes accede to the Councilthe of accede to Europe. and invited andits Protocols ECHR the itto Ministersas aparty to Montenegro considered This practice was followed after the separation of Montenegro: the Committee of dissolution, but before the accessionthe Councilto of Europe. independence, from of date States the theirsuccessor Rights consistently two these applied to ECHR the 1993. and Slovakia bybound their of are from independence, ECHR date the i.e. from 1 January 80 SeeSignatory”. CM/Del/Dec(2007)994bis 9May 7and 2.1a; 2007, Item 79 78 par.118-121. application, the 77 71. Republic, 2000), par. (6June No. Judgment Appl. 33644/96, Case of 70; par. Ceský2000), Czech Republic,the (25April v.No. Judgment the Appl. 31315/96, Czech 76 p. 570. 32, fn. 2989 C,13July by(2000), supra 1993. Cited Zimmermann 75 Flauss (1994)],p.1. Républiquela Slovaquie. tchèqueetla 1 1993 concernant In: RUDH du30juin date 1 (1994) [hereinafter: etsuccession d'Etats aux traités: une curiosité, ladécision duComité des Ministres du conseil Slovak de of l’Europethe en Government by the Republiceuropéenne Convention Flauss: des J.-F. 8 December madeon in: droits Reprinted de Declaration 1992. l'homme the also See 80/31.; A/Conf doc. of Europe Council In: 1992. 74 ECHR. by the bound themselves consider they Europe, of Council in the membership of lack the See Case of Bijeli or a Party been had Montenegro and of Serbia Union State the which to conventions those to succeed “to See CM/Del/Dec(2007)994bis 9May 7and 2.1a 2007, Item Republic, CzechNo. v.the Appl. 22926/93,DecisionA. J. See e.g. of 1994 on7 April Admissibility the of 36;Case 2000),par. (4 April of Judgment See Case ofNo.v.25006/94, Slovakia,e.g. v.Appl. I.S. Punzelt See the unpublished note of the Legal Department of the Council of Europe to all memberStates, RB/hms JJ See Declarationof the Czech National Council to All Parliaments Nationsand of the World of 17 December 75 The European Commission TheEuropean ofHuman Rights and the of HumanEuropean Court 74 The Committee Ministersof decided Czechthe both 30 June on Republic 1993that 76 even in cases individual wherethe complainthad been filed of after date the ü v. Montenegro and Serbia, Appl. No. 11890/05, Judgment (28 April 2009), par. 69. 2009), par. (28April No. Serbia, Judgment v. Appl. 11890/05, and Montenegro 78 It is important to highlight that the Committee of Ministers of Committee the that highlight to important is It 80 19 77 79 CEU eTD Collection is not supported by the actual trends of international law, since the State practice did not Rasulov concludes that automatic State succession and producing sometimes lengthy gaps of protection. successionof by expressed Alma-Atathe Declaration, reflecting “clean the rather slate theory” chose the formal treaties. chose the the accession to conventions exceptions), (with rare consistently SFRY) the of successionchose in case of most international human rights of Czechoslovakia andStates (successor States successor While European and Eastern Central Rights. Human of Commission practice which was State consistently assistedand by European Court European the initially Committee the followed of or Ministers, cases reflect by both States successor the doestype not strongly supportof neither State succession.automatic See Rasulovp. 157. 31, fn. (2003), supra declarative automaticand State successionas a convenience, not alegal duty. Rasulov finds that State practice “ moderate succession”respect in of treaties rights withouthuman issuing any confirmation; and secondly, the more 84 p.55. 33. and fn. p. 81-82., 29, fn. See Ruiz(2003), supra Rasulovp. 160.; 31, fn. (2003), supra there was only one exceptionfrom the generally applied accessionto the treaties (Kazahstan ratified the CC). 83 explanation of the exceptions, see infra fn. 100. separated Statesby towards recently chosen the most conventions rights human important international action inAppendices. the As for the summarizing table of the version extended and corrected actualized, 82 Committee confirms it, but from the date of its independence. See Zimmermann (2000), supra fn. 32,p. 572. decisionof Committeethe of Ministers:successor a State may succeed in respect of the ECHR only if the 81 declaration of the successor State. declaration successor of the any of lack similarly acted have would it whether and Ministers, of Committee the of decision He distinguishes two types of continuity: firstly, the interpretation under of Kamminga, the “ 95), above,fn. (see all at party as reported not was State successor a where few very cases the from Apart fn. 32.See 80-81., See29, p. Seethe 160.; also Rasulov fn. 31, p. Ruiz(2003), supra fn. (2003), supra is of Zimmermann the view asuccessionthat to the treaty obligations under the ECHR depends on the 1.1.7. de facto respect of human rights treaties The practice partly of States supports theautomaticStatesuccession in continuity”, whenformalities areperformed, but successor States consider them as 81 82 Whether the perception of an automaticity rule was successor States of USSRdidthe andStates generally not successor 83 They chose accession contrary to the general the They accessionwillchose to contrary 20 84 in respect of inof human respect rights treaties ipso jure State CEU eTD Collection widespread international acceptance”, continuity, favour continuityof the of human rights treaties”, The final conclusion of most authors is nuanced: they speak about a “presumption in accession. in manyrightstreaties, cases they apply continued to samethe before treaties formal the Union reflected akind sympathy of continuation: although towards they humanacceded to inconclusivethe of automaticity Sovietthe the rule.Moreover, States successor the of practice humansuccession/accession to rights treaties. mainly is be whichpractice, inconsistent law formed to by proved inState between debate the international public that recognizes thesis this However, automaticity. the support majoritythe In sum,arguments, UNandtheoretical bodies ECHRtreaty doctrine, the of all slate” view. revealed “clean the rather States of practice post-Soviet automaticity, the State for support which of States practice isindicates the law general whatthe the is.doctrinal to Contrary Cited by Zimmermann (2000), supra fn. 32, p. 577., fn. 564. fn. p. 577., 32, fn. (2000), supra Cited by Zimmermann 90 89 88 87 86 85 follow it. follow Malcolm N. Shaw: State N. Shaw:Malcolm State Succession YearbookRevisited. Law of82 (1994),p.84. 5Finnish International 243. p. 239., 32, fn. (2002), supra Jäger p. 158.; 67, fn. See(1997), supra Craven p. 484. 32, fn. supra (1996), See Kamminga p. 577. 32, fn. (2000), supra Zimmermann Similarly Ibid,p. 69.; Ibid,p. 67. Ibid,p. 165. 1.1.8. Nevertheless, there isNevertheless, aspreadingthere follow long-term to tendency amongStates successor 85 86 88 His argument is persuasive: because State succession is based on customary is succession His customary is basedon law, argument persuasive: becauseState it a“considerable signs itexistence,supporting” Summarizing thearguments 90 or the “indicatives” which fight for the recognition of recognition the for fight which “indicatives” the or 21 87 a“wide for principle the support” of 89 a development “on the verge of CEU eTD Collection Customary international law, under the definition of Rosenne, “consists of law, derivedthe under of “consists definition rules of Rosenne, international law Customary from the consistent conduct of humanof rights treaties. in respect States principle automaticity the following acting Europe Eastern and in Central custom outregional a of the belief that isthere can one that suppose sovietStates, post of Czechoslovakia andthat SFRY) the andof the law required (of States successor in European of Central thepractice and between thepractice Eastern (Rasulov),practicethis thesis golden arguesfor the mean: although thereis aclearState difference inconclusive the rather highlights which criticism its and Müllerson) Kaminga, Poupart, (especially continuity of principle the supporting opinion majority the summarized Having 1.2. region. European and South-Eastern of Eastern the States the on Nevertheless, the following part argues for a type of regional custom, being mandatory about an already existing customary rule, but about its need and a tendency towards it. treaties. concerns onlyrights following 506. Therefore, the fn. 54,p. human argumentation supra BojanicSee (2000), States. by successor all undertaken were SFRY by the ratified treaties of the quarter one Only Convention. supported by evidence:reality, in successor the States of the SFRY of did not followrespect Art. 34 in of of States the 1978 Vienna succession the on treaties andnot by a continuity norm. SeeConvention Rasulov (2003), Vienna supra fn. 31,p.164.; Nevertheless,by the bound claim his is felt not SFRY the and Czechoslovakia of States successor the that to believe evidence sufficient is there that answers Rasulov Europe, Eastern 92 259. (1993)], p. Schachter Law 260 (1993)[hereinafter: of Journal International Virginia 91 the rule of continuity. However, to the possible claim one that canobserve a regional custom of continuity respectin to Central and Succession: State Once and Future Schachter: Law.Oscar The 489.; 33 p. 29, fn. Seesupra Poupart (2000), in Eastern and South-Eastern Europe South-Eastern and in Eastern continuity of custom regional a of signs views: doctrinal the Synthesizing 91 Because of a lack of consistent State practice, no author dares to speak to dares author no practice, Becauseof a lack of consistentState 92 22 CEU eTD Collection 1. law, the thesis will examine the existence of a regional custom in respect of continuity: 95 – Pelletp. 315-316. (1992)], : Daillier de et DroitGénéral 1992[hereinafter deJurisprudence, Furthermore, applying analogously the same criteria, the ICJ itself recognized the possibility of a regional local or customary law. possibility the recognized itself ICJ the criteria, same the analogously applying Furthermore, 3. 94 p. 55. Publications, 1984, 93 2. 1. requirements: 97 96 way.” that act them to International Legal International ResearchTutorial. See at: NguyenQuoc – Patrick Dinh Daillier – AlainPellet: Droit International Public. 4 Oceana New York, Rome, London, Law. ofInternational Methods and Practice Rosenne: Shabtai Colombian-Peruvianasylum case, of Judgment NovemberICJ, Reports276-78. 1950: 1950,p. 20th, NorthSea Continental Shelf, Judgment, ICJ Reports 1969, p. 42., par. 73. Opinio juris: States have to act so due to a sense of obligationdue to Opinioso (subjectiveact havejuris: to element) States Montenegro notified its succession to all major human rights treaties to which Serbia and Serbia which to treaties rights human major all to succession its notified Montenegro followed it.participating in this practice, since all bornafter 1990in States successor the region As for theall “whose interests can bewere specially that concludedStates affected” were second waveCzechoslovakia of SFRYfollowedandthe same the after practice gaining independence. It of State of States humanof in succession successor rights respect treaties, State automatic successionFirstly, practice requirement State of the custom shouldthe be By proved. applying (after 2001) in the region, included that of States whose interests werespecially interests whose included of States that affected.” “a very widespread andrepresentative participation in convention”,the “provided it by a significantnumber States.” of by taken are a significant“the acts prevalentfeature: Its number andrejected not of States uniformly. and similar practice: State international over time, by be have constantly repeated acts States to 94 93 According to this commonly used definition, a custom has three main three has custom a definition, used commonly this to According 97 Based on the essential the Basedon criteria of customary international 95 The ICJdidrequire not unanimity among but States, http://www.law.duke.edu/ilrt/cust_law_2.htm 23 96 e édition, Paris,Librairie (01.02.2009). CEU eTD Collection http://www.iemed.org/anuari/2007/taules/ae01.pdf 98 101 does not seem to weakenradically a possible regional custom. context. Since they have State duties to prevent discrimination underother rights human treaties, this failure SportsApartheid in atall,afactbe can that explained by the practical insignificance of that treaty in European Slovakia, that Slovenia the and FYROM have not become party to the ConventionInternational against Finally, itmust be214.; p. 32, added fn. succeedingSeesupra (2002), Jäger thereto. than rather Convention Genocide the to accede to FRYchose why the is That thereto. succeeded not had thus before, Convention not beenGenocideit had case bound(Bosnia-Herzegovina by25] that fn. v.Serbia-Montenegro),supra the FRYtime,the that wasat interested FRY: in provingof the in the ongoing strategy ICJ procedure procedural by against Bosnia-Herzegovinathe be only explained can [See It Convention. Genocide the to accede to 2001 in As fn. 32,p.199.; for exception,supra later FRY the See the (2002), Jäger chose 1993 (ratification). 15 August apply to territorythe of Slovenia,it was legally correct thatSlovenia acceded to the Convention, with adate of ratified by SFRYthe only on 10September 1991. Since at the time of its independence the Convention did not ofconsidered date 25 independence it since its June 1991, but Torture the Convention wasagainst Convention 100 Republic of Montenegro is to be regarded as a Party to the ECHR. Council of Europe, Committee the of Ministers decidedresolution ina dated 7and9May 2007 that the http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en 99 See UN Doc. A/HRC/WG.6/3/MNE/1. See also in: IEMed Institut Europeu de la Mediterrània. See at: See Status of the Multilateral Treaties Deposited with the UN Secretary General, Chapter XXIII, North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 43, par 74. ICJ Reports 43, par Shelf, Judgment, 1969,p. Sea North Continental first The case is not really contrary to a possible regional custom of automaticity: Slovenia acceded to the uniform”. virtually and “extensive is practice ifState custom a of birth the itself in bar not does of period shorttime ruled inNevertheless, the ICJ that decent-long practice region. the the problematic: considering unique the succession, andirregular isState of there character no As for the constancy of the repetition of the custom, this condition seems more being asuniform. ispractice worth treated in region the consistentlyStates successor followed automaticity rule –this widespread case, some States have not become parties to a treaty. havebecome to parties not case, some States accession insteadof succession choose and in to circumstances inducedone isolated States excludepossible not does exceptions and indeed incases intwo region,the very particular has this repetition to be Furthermore, uniformly observable Uniformity and constantly. accordingly. was party Montenegro 101 Since the application of the continuity rule concerned a period of time firstly time of period a concerned rule continuity the of application the Since 99 98 and the Secretary General Secretary indicated andthe in it the depositary records (03.02.2009). 24 (03.03.2009). Furthermore, within the within Furthermore, (03.03.2009). 100 Apart from from exceptions, rare Apart these CEU eTD Collection 3. 2. http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en formerYugoslav(ICCPR,(the 12 Dec.CEDAW, GC) or1994 (CAT) Republic of Macedonia). See at: Herzegovina),ICCPR)1993 (e.g.and (Bosnia 2Dec.1 Sept. 1992 (GC)or 1993(CRC) or 1994 18Jan. 22 Febr. 1993(Czech Republik),1992 (Croatia), 28May12 Oct. 1992 (Slovenia), Jul. 1993 (Slovakia), 29dec. Secretary GeneralXXIII),(Chapter most conventions humanrights were succeeded at the following dates: 6 102 RecognitionGuidelines required SuccessorStates to enshrinedguarantee invarious rights the human p. 1. fn. 54, supra concluded (1994), by predecessorSee States. Williams the EC ; Last but least,the not States of the SFRY, Czechoslovakia andtheSoviet Union obliged are to continue the treaty obligations of treaty rights human bodies).the See point 1.2.1.E.;The US consistently emphasized the that successor successorStates of the USSR, Committee the onofthe Elimination Racial Discrimination or the chair persons 107 a possible regional customary law. tries Kosovo not, or State whether sum, In to followof Kosovo. Republic the practice of of the othersuccessor States the regionin thisattitudeand strengthensConstitution the argumentationfor of the 22 Art. and 145 Art. rule of “Continuity of AgreementsInternational andApplicable Legislation” whichSerbia was Party to. See too early to deduce any conclusions. By all means, itshould be mentioned thatits constitution incorporated the 106 105 319. 104 (Montenegro). 103 According to theday of successionreported by Statusthe of the Multilateral Treaties Deposited with the UN Namely, Human the Rights Committee theCommissionand onHuman Rights (and mainly respectin of the As foreventualState,an Kosovo, ninth which declared independence from Serbia on 17 February 2008, it is Ibid. – Pellet tobe See customs, fn.have (1992),supra 94,p.317- Daillier whichfor Except unanimous. bilateral of2001 (date of 12March admission UN, Montenegro to the Serbiaand 2006 “Serbia”),23 Oct after 2006 Thirdly, States of the region have to act due to a sense of obligation.due to Thirdly, act of region Asmentionedthe have to before, States follow the continuity rule. continuity the follow manyare there international bodies which they informed that should States successor the condition of widespread participation is fulfilled. is participation widespread of condition the that conclude can one continuity, of rule the cases of number overwhelming in followed considering Europe, 8 successor States Eastern that States forming regional the States more the unanimitypractice, is necessary. participation should be examined. unanimity of States is not a condition. Secondly, conditionas for the of widespread andrepresentative participation, the region. Now the criteria the of region. Now In sum, the condition of practice State seems to be fulfilled by the State practice of the condition. constancy fulfillment the of the for argue from1994 1992 to 102 and secondly from 2006 2001 to 107 Although no such declaration was binding on States, as a as States, binding on was declaration such no Although opinion juris 104 Nonetheless, the more restricted is the group of 25 and widespread the and representative (03.03.2009) 106 103 are concerned and all areconcerned of them , these two waves let the thesis 105 In Central and Central In CEU eTD Collection Secretary-General. Historicallaw”), international in: information of aboutcustomary the State parties to consideration the treatiesin deposited taken was with the decision (“This Slovenia from Secretary-General by the received valid principles oflaw tothe international and extent defined by it”); see the letter dated 1 July 1992 and letterdated 19May 1993 and sent to the Secretary-General by Slovakia (bothcontains: “In conformity with the 111 requirement of continuity. requests of the HumanRights Committee to submit reports,successor all States of the region followed the obligationis more unequivocal the case in of the submissionof national reports: asaconsequence of the See also 32.; Bojanic Moreover,fn. fn.54,p.494.; (2000), supra 223., compliance the p. withthis 37, Novine”“Narodne (Officialof 1991: cited No. 849., by 25June 31/1991,p. Journal), fn. Degan(1996), supra deposited Secretary-General.;the with See also e.g. the constitutional decision on the independence of Croatia 110 109 108 p. 223. fn. 37, See3.2.1. ICCPR. point See also conventionsas the such infra Degan(1996), supra rights human international See the letter dated 16 February 1993 and sent for the Secretary-General by the Czech Republic or the a the or Republic Czech by the Secretary-General the for sent and 1993 February 16 dated letter the See As for the notifications of succession, see Historical information about the State parties to the treaties See Ruiz (2003), supra fn. 29,p. 83., fn. 36. UN 1. Doc. par. E/CN.4/RES/1993/23, treaties. in they act conformity that expressed with their given obligation the succeedto to continue the treaties intreaties the continueforce concluded by State their predecessor to intention the expressed them of All treaties. rights human to succeed to obligation of region the mustStates have felt successor the requirementsrecognition EC, the of the In order to comply with the requirements expressed by the competent UN bodies or the its opinion on the recognition of the concerned State (e.g. in the case of Slovenia). human as of successionexamineone conditions rightstreaties the it to had that to before Badinter Commissioncases, the In some itselfthe States]”. to referred [successor words “encourage successor States to confirm to succession]”, “shall[the States succeed” successor “encourage words the byusing will its expressed example for Rights Human on Commission the pressure, Union which perceivedindependence their similar asaprocess newly to independent decisionthe conclusion the on and ratification than of republicstreaties the of Sovietthe constitutionallywere they recognized unitsa federal of had State: more influence during of SFRYand the of Czechoslovakia States is successor the did not that post-Soviet the which element explain could why Another this rule the followed region continuity and 111 26 110 and some of them 108 109 , “calls CEU eTD Collection constituent partof the Yugoslav Federation, granted its had agreement to the ratificationof the international considerationin taken of customary law international ofand the fact thatthe Republic of Slovenia, as a former 112 international instrument enshrining minority rights or not. or rights minority enshrining instrument international irrespectively they ratifiedobligeStates State successor whether their anyof predecessor protection. If minorityhumandefinition else somehow other rights than in treated of strictness the respect of the rights belonged to as regional custom or not. whether region, inthis validity a has obligations rights human of continuity that claim certainly one can in practice of theregion and Europe, rightsCentral its State and treaties Eastern successionHaving State automatic the growing of in acceptance the proved respect of human 1.3. guarantees. to the human ratified anyof region Thus, the shallbynew State States. theirsucceed predecessor rights treatiesan obligation of particular respect all ensurethe basedcustomary law on to human rights of its in hadand have above, Europe Central followsStates it andsuccessor Eastern presented that predecessor, main these accepts If one arguments validity for the of a regional of continuitycustom it cannot “lower the bar” and lessen the See the letter dated 1 July 1992 and received by the Secretary-General from Slovenia: “This decision was decision “This Slovenia: from Secretary-General by the received and 1992 July 1 dated letter the See rule which bound successor States of the region. as federalautonomy units main arethe for asensereasons of obligation continuityof the In sum, the international claims for automatic succession and the former constitutional States, gaining sovereignty and liberty in foreign affairs. Chapter II will discuss whether a special human right, namely minority rights are by are rights minority namely right, human special a whether discuss will II Chapter Conclusion jus cogens 27 or customary law, it would follow that follow would it law, customary or 112 ipso jure CEU eTD Collection parties to the treaties deposited with the Secretary-General. accordancetreaties in withthe then valid constitutional provisions.” In:Historical information about the State 28 CEU eTD Collection case of case of dissolutionthe SFRY. of the implicates negativeThis the of latter. reaction the which majority different ethnically the from separating State independent an establish to try it will State, the by recognized officially not is minority a if Especially movements. tension the among national and ethnical minorities which of a State separatistaccelerates (1996)], p. 296. (1996)], p. n° Internationaux Cahiers Montchrestien,10, 1996[hereinafter: Nationalité, minorités et successiond’Etats X Paris colloqueCedinNanterre, de desPrague 22-24 septembre 1994 [10e internationale]. Journée d’actualité Emmanuel DecauxPellet: –Alain Nationalité, minorités et successiond’Etats en Europe de l'Est. Actes du 114 3. 32, p. 113 rightsviolations and massive atrocities. human by followed often is which instability, political involves usually States of separation A also that of the international community (point 2.1.2.). but 2.1.1.), (point State given the of interests only the not serves protection whose minorities, succession,and concretely dissolution especially andState separation of States threaten 2.1. William A. SchabasA.William Crise La : Yougoslave : Les tentatives internationales de protectiondes minorités. In: fn. (2002), supra 469.; Jäger 32,p. fn. (1996),supra See152.; Kamminga 31,p. fn. Rasulovsupra (2003), 2.1.1. II. instability The connection between separation and minorities: a situation of Chapter Two :Minorityrights atthetimeofseparation of by separation or dissolution The needof stability through minority Statesconcerned protectioninthe 114 113 But inversely, political instability usually increases usually instability political inversely, But 29 States circula vitiosa was clearly observable in the observable clearly was CEU eTD Collection Montenegro face with ethnic pluralism in their remaining territory. remaining their in pluralism ethnic with face Montenegro only which likealsoterritories butrump have States Serbiaof separation separated, after the Moreover, a minority which forms a regional majority in a given territorial part of the State is State the of part territorial given ina majority regional a forms which minority a Moreover, minority. the overshadowing or suppressing by power political their stabilize to tend of can exacerbatesituation minority the the context newsince State “new majorities” often the overnight. became Moreover, newState the of adominatedState group predecessor of the merely placed in a different context, State themselves in asimilar soethnicethnic tensions heterogeneity as their were States, predecessor found by secession born States new Many mixed. historically and is traditionally region of the composition ethnic the since States, homogenous ethnically pure, establish to illusion an was solve ethnicwas deemed to conflicts within theseethnically diverse societies. Nevertheless, it ethnicalbut guaranteed, claims and Separation constitution weresuppressed. of nation-States of minorities protection was that SFRYandCzechoslovakia)the 1990 after was not (the USSR, States One of socialist of of the grounds collapse multiethnic the various circula vitiosa alter its boundaries.to would consent tensionsbe cannot reconciled by modificationthe boundaries, territorial of the sinceState no Responses to Ethno-separatist Claims. In: 23 Yale Journal of International Law 36. 1 (1998),p. of 23Yale Journal International Responses In: Claims. to Ethno-separatist 118 540. (2004)], p. Johanson Law 535 (2004)[hereinafter: of 73Nordic Journal In: International [hereinafter:McGarry (1998)], p. 221.; See also Märta C. Johanson: Kosovo: Boundaries and Liberal Dilemma. States. National In: Self-Determination Secession.and By Ed. Margaret Moore. Oxford University Press, 1998 117 116 11. Budapest,2007, p. 115 questioning of territorial the boundaries”. According to Kardos, “the most serious consequence of ethnical conflicts is the See McGarry (1998), supra fn. 117, p. 223.; Diane F. Orentlicher: Separation Anxiety: International Separation Orentlicher: F. Diane 223.; p. 117, fn. supra See(1998), McGarry Post-Secession and Regions Secessionist in Pluralism ofNational Secession’: ‘Orphans McGarry: John Ibid. Kardos Gábor:Kisebbségek: Konfliktusok és [Minoritiesgaranciák : Conflicts Guarantees].and Gondolat, The consequence ofthisThe consequence “succession ofethnic diversity” the dominant wasthat group : the recognition and respect of minority rights. 116 There is only one solution which can remedy this remedy can which solution one only is There 117 115 30 they they were alsonot “succeeded”. Furthermore, However, according to Kardos, the ethnical the Kardos, according to However, 118 CEU eTD Collection sufficiently protect minority groups within its territory. The dissolution of the SFRY, the SFRY, the of dissolution The territory. its within groups minority protect sufficiently Johanson argues thatnew ethnicled to tensions and further possible like separations, in caseof FRY.the the no independentif minority minoritiescontrary, the it has to guaranteed State, of rights successor not the were successor human of recognized asaddressees are neighbor and especiallyStates minority rights. On the the of Stateone to or predecessor the of ethnicity the to whether belonging minorities the also has legitimacyestablishresponsibilityonly to where not a country the States plurality, thesuccessor on but if itface achallenge to had of their eventual ethnic tensions. wasaparticularly There important does Thus, all successor States of the region, especially not the successor States of the SFRY consequences the all weaken the stability newof the State. whereitforms amajority. State the is Whether reaction violent to the not, State or successor State. of an own 221. minority in Azerbaijan, Russian the Ukrainianand minorities in Moldova. McGarry (1998), supra fn. 117, p. Serbia;similarly did Bosnia’s Serbian Croatian and minorities, theOssetian minority in Georgia, the Armenian 121 exclusion of masses of Russians minority members from citizenship inEstonia Latvia. and the narrowing of the language ofrights the Hungarianminority Slovakiain underthe Meciar government, the 120 519. (1999)], p. Ringelheim (1999) [hereinafter: 119 aiming prevention rebellion the secessionof eitherthe at wholeState of the successor violent by react could minority the disastrous: be could minorities national of situation The consequences of the privileging of the national majority and the disadvantageous tension. are all1991 after born concernedEurope with dominant-dominatedthe ethnic group situation minorityof the inpost-separation the new States Eastern depend on various factors, level. national the on ethnicity dominant latter the forms ifthe especially territory, that in group minority regional the oppress to susceptible also E.g. Croatia’sE.g. Serb minority resisted to the independence of Croatia andtended to unite its territory with wereSuch 221. instances expulsionp. the 117, of fn. Serbs supra 1995, (1998), McGarry from in Croatia Julie Ringelheim:Considerations Reaction International the in to the 1999 Kosovo Crisis. 2RBDI 475 120 122 However, the most usual reaction of the minority is the migration from the from migration isthe minority the of reaction usual most the However, 31 119 Although the intensity of the conflict and conflict the of intensity the Although 121 orthe creation CEU eTD Collection justified the intervention of the international community protecting human and rights, but at the at but rights, and human protecting community international the of intervention the justified case study case study of Yugoslavia will inprove III, Chapter State, can easily against State, be transformed into threats international peace and security. if especially within to leading tensions, armed violent Ethnic the conflicts successor guaranteeing acceptable the living conditions of minoritiesthe living in State. the without be ensured cannot boundaries of sanctity the that War, World First the after did it as 127 126 16-17. p. Minorities], Concerning Minorities. UN-Doc. E/CN.4/367, 7April 1950, Geneva [hereinafter: Study of the Validity of the Undertakings obligations.” See Commissionon Human Rights: Study of the Validity of the Undertakings Concerning community the stability of whichit was designed to ensure, itwas also a safeguard for the States bound by the of a special character: while representingadvantage an for the protected minorities and for the international “(...) guarantee of the Leaguethe of Nations regarding obligations inrespect of the protection of minorities was Leaguethe of Nations,also recognized thisthree-fold advantage of the protectioninternational of minorities: 125 124 123 p. 221. 117, fn. (1998), supra 122 sufficient minority protection system. protection minority sufficient in internationalthe of community interestalso the is it as a stabilizewhole to and ensure new the a State State, in that living minorities the and State successor the of interests the Beyond community. often needed motivation regimes,and assistance States successor international of the protection minority appropriate establishing of process the In tensions. ethnic resolving by and minorities for context liberal a byestablishing legitimacy gain to State successor the of liberal of minorities treatment State. predecessor inof the theterritory lack the from from of Serbia of of SerbiaKosovo Montenegro separation due to andthat were See Johanson (2004), supra fn. 117, p. 547. 117, fn. See (2004), supra Johanson 476. Recognition (1992)],p. Warbrick: Colin Warbrick of 41(2)ICLQ 473 (1992)[hereinafter: States. In: The CommissiononHuman Rights, whenexamined the minority protectionsystem underthe auspices of Recognition See 71. ofTürk: 4EJIL Danilo 66 (1993), p. In: States: aComment. See the forecast of Johanson. See Johanson (2004), supra fn. 117, p. 547. E.g. the Abkhazian minority in Georgia, the Chechens in Russia, Kosovo’s Albans in Serbia. See McGarry 2.1.2. 124 The stabilizing interests of the international community 125 Theinternational community recognized in 1990s, the 32 a priori the international the peace andsecurity 123 Thus, it is the interest 126 127 As the CEU eTD Collection automatic State succession: State automatic study ways eventual the to two higherare standardof minority There barethe rights rule compared of to obligations. treaty of in lack or obligations treaty of irrespectively rights minority beforeby expressly 1990 not universal ICCPR, the protected international treaties. importance especially in minority caseof rights which from singleapart one were, provision of the ratifiedespecially more human or one if States, or a party rightsto was not treaties if the predecessor conventionssucceeded conventionalhuman duties related to obligationsrights, what other have successor do not coverisThat exactly willwhat thisState. part predecessor examine: beyond the automatically certain which isprotection increase of by required standard the to treaties of the or force the special human by rightsother guaranteed not human treaties inthe i.e.any more,require protect obligation to rights? obligations Butitnot abarecontinuationthan of treaty does the of predecessorState. the This question succession in of State humanautomatic The rulerespect of entail not does rights treaties more has an 2.2. requiringfor respect the minority rights. ensure alongsame andespecially term timeto stability States tended Europe in region the by 2.2.1. The thesis will haveexamine a States specialsuccessor whether protect duty to Minority rights obligations beyond treaty context treaty beyond obligations rights Minority a higher standard ofprotection Going beyondtheprinciple of automatic Statesuccession: thepossibility of 33 CEU eTD Collection developing customary intointernational law. are rights minority that suggest might instruments international by minorities protect customary international law. consider Art. 27of the ICCPR writers as a rule of customaryscholarly internationalmore and law. more even Nowadays, rights. minority protecting instruments As already mentioned, guarantee. to have States all which standard minimum a creates which and law customary to belongs which rights minority of scope narrow a is there that conclusion the to lead will point This Bruylant, Brussels,Bruylant,p. 514. 1996, Hard-Core of Minority Rights. In:D.Prémont (ed.): Non-Derogable Rights andState of Emergency. Émile law ofnature see27, Art. J. Packer: United Nations Protection of Minorities in Time of Public Emergency: the Packerspeaks (1995)], p.391.; similarly onpossibilitythe Craven of[hereinafter: (1995) 333 customary the 130 p. 117. (2004)], Pentassuglia Conseilde 2004[hereinafter: l’Europe, Strasbourg, VI-2., 1995, p.385. Cited by Gaetano Pentassuglia: Minorités endroit Une international. étude introductive. Collected Thornberry: Minority In: Rights. CoursesPatrick of15.; p. Academythe (2005), of Law,European 129 128 See Matthew C. R.Craven: European The Community Arbitration Commission on Yugoslavia. In:66 BYIL StevenWheatley, Democracy, Minorities andInternational Law. Cambridge University Press, Cambridge, See 1.2. point supra - - 2.2.2. Wheatleymay 27 Thornberry Art. and recognize that be considered asarule of Secondly, thesis the will examine the Firstly, the present study will discuss whether minority rights could be considered as considered be could rights minority whether discuss will study present the Firstly, the Badinter Commission (point 2.2.3.). minority rights on the basis of a sense of obligation (point 2.2.2.). customary rules.thisUnder logic,all are bound all byStates duty protect the to The claim toconsider minority rights ascustomary law 128 Art. 27 of the ICCPR served as a basis for further international 129 Craven claims that the longstanding international efforts to efforts international longstanding the claims that Craven jus cogens 130 34 Dinstein considers Art. 27 as “a minimum of minimum “a as 27 Art. considers Dinstein nature of minority rights declared by CEU eTD Collection argues, the Commission indirectly recognized the customary nature of Art. 27. 134 7. par. 12/85, 133 Emergency 4)],UN(Article Doc. CCPR/C/21/Rev.1/Add.11 13(c). par. (2001), Comments No. aStateGeneral 29 [Derogationsof UN.Doc.8.; During CCPR/C/21/Rev.1/Add.6par. (1994), Covenant Optionalorthe Protocols Thereto, orRelation in to Declarations under Article 41 of the Covenant), 132 118. (1976)], p. 131 Brazilv. although ICCPR. later the the party was case (1985) to not Yanomami in the 27 Art. applied it rule: customary as ICCPR the of provision rights minority in becannotemergency derogated situations 4. under Art. freedom rightto clause18 (the conscienceof andthought, in Art. 4 (1) Art. and religion) non-discrimination the genocide, against prohibition the elements, such among that warned minorities includes in elementsmustbe respected all that circumstances.” Consequently, it to belonging persons of rights the of protection international “the that held Committee the 29, No. Comment General in its Secondly, language.” own their use or religion, own their Committeethe mentionedminorities of rightcharacter, the enjoy “to their profess own culture, incompatible of Covenant.the Amongandpurpose provisions the object the with of customary reservations to the ICCPR that offend peremptory norms or customary rules would be its general comments. in rights minority of character law customary the recognized itself Committee Rights Human identity”.separate rights recognized by customary international law” itpreserve “righta as the andinterprets to See Pentassuglia (2004), supra fn. 129, p. 118. 129, fn. Seesupra (2004), Pentassuglia Inter-AmericanComission onHuman Rights, Comunidad Yanomami. Caso No. 7615. Resolución No. GeneralComment No. 24 (Issues Relating to Reservations Made upon Ratification or Accession to the YoramCollectiveDinstein: Human Rights of Minorities. 25ICQL In: 102 (1976) [hereinafter: Dinstein Furthermore, the Inter-American Commission on Human Rights treated in one case the The protectors of the customary nature of of minority customary nature the of rights may fact the the The protectors referto that 131 132 Namely, in General Comment No. 24, the Committee held that held Committee the 24, No. Comment General in Namely, 35 133 Thus, asPentassuglia 134 CEU eTD Collection the next point will explain. will point next as the norms, peremptory are rights minority that argue to difficult more is it and law international as In rights minority a sum, it of is whether has whole customary a doubtful character privileges. keyelementthe cover axioms not of minority anddo granting the of specialprotection, before law the 139 supports the same view, ibid. 138 University 109. (1991)], p. Press, Thornberry New York, 1991[hereinafter: 137 136 p. 104. 114, fn. (1996), supra protectiondes minorités nationales endroitNationalité, international? In: minorités et succession d’Etats asobligationsrights assumed by States as soft law obligations. See Jiri Malenovski: Vers unrégime cohérent de 135 existence rightthe to protection: minority of heart the form to said be may nature law customary a presenting rights only not may but a customary law have character, belong to identity one’s of recognition to right the or discrimination racial of prohibition the law: customary to belong undoubtedly rights minority of rights ingredient Some precision. some entirety entirety of minority of strength customary yetreached the rightslaw, hasnot As opposed to these instances, a considerable part of the doctrine still holds that the See e.g. Pentassuglia (2004), supra fn. 129, p. 118. 129, fn. supra See (2004), Pentassuglia e.g. Hefn. 137,p.221.; cites opinionofsupra the unpublished (1991), SeeBrownley Jan Thornberry who See Patrick Thornberry: LawRights International the and of Minorities.(Clarendon Paperbacks) Oxford p. 340. See 10, fn. Pelletsupra (1991), See e.g. Malenovski, who sees no customary laws matterof inthe minority rights, but considers minority 139 and the right not to be assimilated. However, these rights seem nowadays seem rights these However, be assimilated. to not right the and 137 and the prohibition of genocide, the non-discrimination rule, non-discrimination the genocide, of prohibition the and 36 jus cogens . 136 Similarly, the following the Similarly, 135 which needs 138 equality CEU eTD Collection ensure respect for the rights of minorities.” See ibid, p. 184., par. 2. referring toitsOpinion No. 1– “the that – now peremptory – norms of law international require states to No. Opinion 2declares1) e);Furthermore, more par. clearly 182., – p. 182(1992), Peoples.3 EJIL In: Pellet: The Opinions of the Badinter ArbitrationCommittee. ASecond Breathfor the Self-Determination of 143 412. (1995)], p. Craven (1995) [hereinafter: 142 was article unanimously adopted bythis Note that ILC.p. 57. See the 130, fn. Verdross (1966), supra 141 cogens MichelVirally Verdross (1966)],p.55.; [hereinafter: (1966) AJIL 55 60 : Réflexions Law.In: surle can be summarizedresponding thereto asfollows: main arguments againstthe of have status the discussing the succession.” the all to parties fundamentalthe rights of individualthe and rights the of people and minorities are binding on norms of “the peremptory general that international stated law and, in for particular,respect it when Commission) (Badinter Yugoslavia on Commission Arbitration Community European 140 are bound by them. bound are States successor all that follows it States, all on obligations impose norms peremptory Since Art. 53 of 53of 1969Viennathe Art. Convention, only existencethe Not of the OpinionNo. 1of the ArbitrationCommission of the Conference on Yugoslavia. Reproduced in: Alain Matthew C. R. Craven: The European Community Arbitration Commission on Yugoslavia. In: 66 BYIL 333 23 May Law 1969).UN, ofthe on (Vienna, Convention Treaty Treaties Series, Vienna vol. 1155,p.331. See Craven (1995), supra fn. 130, 381.; AlfredVerdross 130, fn. : Jus DispositivumSeesupra Craven (1995), and 2.2.3. . In : 12 AFDI 5 (1966), p. 5-29. : 12AFDI 5(1966),p. . In The opinion of the Badinter Commission was strongly questioned by the doctrine. The doctrine. by the questioned strongly was Commission Badinter the of opinion The subsequent norm of general law international having thesame character. whole as a norm from which no derogation ispermitted andwhich canbe modified only by a law international is anorm accepted andrecognized by communitythe international of States as a law.international For the purposes of the present Convention, aperemptory norm of general A treaty is void if, the time at of its conclusion, itconflicts witha peremptory norm of general The claim toconsider minority rights as dismembrement jus cogens 142 This rule was also affirmed and extended to minority rights by the rights minority to extended and affirmed also was rule This – aview before. never stated 143 of the SFRY – includes the audacious claim that minority rights minority that claim audacious the includes – SFRY the of jus cogens jus cogens This phrase of the first opinion of the Badinter Commission – Commission Badinter the of opinion first the of phrase This nature of nature of minority rights andarguments pro the , 140 but also its definition is widely accepted: under accepted: widely is definition its also but 37 jus cogens 144 141 Jus cogens in International jus CEU eTD Collection (1994), par. 8. (1994), par. http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en 149 319. 114, p. 148 Papers Official Yugoslavia. Former the on (ed. B.Conference G. Ramcharan). Kluwer Law International, the Hague/London/Boston. International The In: Vol.1991. 1, p.13-23. November 4 of Convention 147 146 319. 114, p. 145 144 object the purposeand of the treaty) to reservations violating the Vienna Conventionon the Law of Treaties (the prohibitionof reservations being incompatible with the not be compatible with objectthe purpose and of the Covenant”. Thus, the Committee extended Art. 19 (c) of 150 2. 1. See Status of the Multilateral Treaties Deposited with the UN Secretary General, Chapter XXIII, see at: Commentaires de Wladyslaw Nationalité,Czaplinski.In: minorités et succession d’Etats (1996), supra fn. Community Convention. Treaty Conference European (1991-1992).Draft Provisions The for the p.339. see 10, fn. Pelletp. 391.; supra similarly (1991), 130, fn. See(1995), supra Craven Commentaires de Wladyslaw Nationalité,Czaplinski.In: minorités et succession d’Etats (1996), supra fn. p. 339. 10, fn. supra Pellet (1991), p. 390.; 130, fn. See(1995), supra Craven As the As the Human Rights Committee stated inits comment, “reservations offendthat peremptory norms would excluded applicability the objected to was its reservation not ICCPR, the 27 of of Art. to object to a reservation a reservation offending to object aperemptory norm.to Child. three States to thewhen 27 ratifying Art. made to reservation ICCPR a (France the andStates Turkey) and minority clause (Art. 30) of the Convention on the Rights of the argument of argument impreciseof the minority of nature rights. the strengthens implemented, States in successor all not was Draft Carrington the rights, minority of list extended this that fact the Nevertheless, rights. relevant the enumerates Secondly, minority rights are not at all recognized by all States. all by recognized all at not are rights minority Secondly, referred to the Draft Peace Treaty on Peace Treaty Yugoslavia Draft the (Carrington Draft), to referred Commission Badinter the since rights, minority of content the about guidelines sufficient Committee which body treaty detailed meaning the this of article.Secondly, are there added: firstly, Art. 27 gave birth to a various case law before the Human Rights contentthe of detailing minorityconvention rights human specific no was rights there Commission, exceptBadinter for Art. 27 of the ICCPR. norms. Firstly, imprecisethe norms of these excludes nature evolution the towards 149 145 According to the practice of of practice Humanthe the haveAccording parties Rightsto Committee, State Similarly, Craven notes that at the time of the adoption of the opinion of of the opinion of the adoption the of time the at that notes Similarly,Craven 38 jus cogens (04.03.2009) . See UN Doc. CCPR/C/21/Rev.1/Add.6 150 However, after Francehad after However, 146 Two remarks Two should be 148 For example, two jus cogens 147 which CEU eTD Collection 155 2004. Publishing, Proceedings30-31 October ofStrasbourg, Minorities. Conference 2003. Councilthe heldin of Europe studies). Routledge,2009, Frame.p. 46-60.; the Filing Five Years of Monitoring for the Protection of National Europe EasternMinority Central and (BASEES/Routledge in rights series on Russian and East European Hofmann: The Framework Conventionfor the Protection of National Minorities. Bernd In: Rechel (ed.): 154 319. 114, p. 153 Yearbook of by p. 391. vol.248. Cited ILC, 130, 1966, the fn. 2, p. (1995), supra Craven adds ILC the that hasneverconsidered minority asbeingrights peremptory norms (i.e. non-derogable). See GlobalProtection 1(1)The Reviewof In: Minorities. Linguistic Cravenof44-45.; 41(2001),p. Ethnopolitics Human Rights, Minority Rights andthe Right to Self-Determination Its and Importance for the Adequate they are reasonable objectivelyand justified. See: KristinHenrad: TheInterrelationship between Individual 152 8.5. 151 5. 4. 3. See Pellet (1991), supra fn. 10, p. 331. See 10, fn. Pelletsupra (1991), Althoughit isthe Committee of Ministers whichis responsible for the monitoring. See e.g. Rainer Commentaires de Wladyslaw Nationalité,Czaplinski.In: minorités et succession d’Etats (1996), supra fn. See e.g. Lovelace v.Canada (1981), where the Committee set out that limitations of Art. 27 are acceptable if UN No.222/1987, Communications Doc. v.France, H.K. CCPR/C/37/D222/1987, 8December 1989,par. As Schabas notes, the phrase “the – now peremptory – norms of international law” not have any any force, binding have not Finally, one should take intomonitoring. account that the opinions of playstheCommitteerecognized of experts composed anincreasing role in the BadinterAdvisory the Minorities, Commission National of Protection the for Convention do Framework severallawandits case comply pressed to times Protocol States Aswith for 27. the Art. Optional the under complaints individual for responsible is Committee Rights Human the increasing of monitoring elaboration the needfor mechanisms. results, As for concrete by internationalbecrime prosecuted criminal to tribunals, arenevertheless there an rights. minority of violation the to react not does community international the Fourthly, practice of the Human Rights Committee similarly confirmed it. confirmed similarly Committee Rights Human the of practice minorityof rights is 27is,Art. that under theICCPR, aderogable right. The past Thirdly, maybe the most important argument of the critics of the of critics the of argument important most the maybe Thirdly, rights. by Party, any State other 153 Although the violation of minority rights in itself does not form an international an form not does in itself rights minority of violation the Although 154 151 155 which suggests the non-peremptory nature of minority of nature non-peremptory the suggests which but nevertheless but may international reflect current the law. 39 152 jus cogens qualification CEU eTD Collection Secession. Report to Government of Canada concerning unilateral secession by Quebec. 1997, par. 44.. See See at: http://www.tamilnation.org/selfdetermination/97crawford.htm 44.. par. 1997, by Quebec. secession unilateral concerning of Canada Government to Report Secession. law.”current international See James Crawford: State Practice International Lawand in Relation to Unilateral 158 157 p. 339. fn. 10, 278. fn. 114,p. seesupra ; similarly, successionPellet (1996), et (1991),supra d’Etats minorités Nationalité, 156 protection. minority of standard minimum elements of minorityThese axiomatic protection. elements can be considered asthe absolute provisions minorities protecting as – Chapter One comply proved –,butto with customarythe haveonly not Europe Central andEastern a customary of obligationcontinue treaty the to before law) the have certainly gainedfollowssuccessor States It acustomary law that nature. equality and assimilation forced of discrimination, of genocide, of prohibition the existence, customary nature of minority protection. Furthermore, certain minority rights (the right to by doctrinethe asbelonging peremptory norms, is to there an increasingfor support the Although minority rights –asspecial humanconsidered and practice by rights not –are State 2.3. of international reflect actual status the not law. does it accepting Commission Badinter the of opinion the protection, minority of nature succession 114, fn. (1996), supra d’Etats Crise Yougoslave les tentatives: internationales deprotectiondesIn minorités. Nationalité,minorités: et majority andthe practice State of doctrine the that haveyetreached auniversal not is 27 aderogableArt. Considering recognition right.and that rights minority that decisive is it counterarguments, and arguments above the Summarizing As Crawford stated, the protectionof minorities determined by the Badinter Commission went “well beyond p. 390.; 130, fn. (1995), supra Craven p. 339-340.; See 10, fn. Pelletsupra e.g. (1991), SchabasA.William Crise YougoslaveLa : les tentatives: internationales de protectiondes minorités. In : shaky ground of current internationalshaky of current ground law. implies that the Badinter Commission was aware of its innovator role, innovator its of aware was Commission Badinter the that implies Conclusion p. 278.; See Craven (1995), supra fn. 130, p. 391. 130, fn. See(1995), supra p. 278.; Craven 158 40 157 (04.03.2009); SeeA. Schabas alsoWilliam (04.03.2009); La : haveyet imperativerecognized the not 156 concerning a concerning CEU eTD Collection current international current whichstandards ahigher of minoritycreated standard protection. beyond requirements the that examined international above,the prove will community added certain It SFRY. the of dissolution the of sequence the towards community international the of attitude special the chapter following in the examine will thesis the rights, minority Having an overview about the general trends of the State succession in respect of 41 CEU eTD Collection analyze formerlythe enumerated international instruments and their impact successor the on Osimothe Agreement andthe (point Hereinafter,ICCPR (point3.1.2.) 3.1.3.). thesis the will obligations of minorities requiring protection the under peace the treaty of 1919 (point3.1.1.), the Statethe to Socialist Federated Republic of Yugoslavia. Itis generally recognized politicalthat changes as the after1945 to Federated People’s Republic of name of the new changed constitution1963, the Yugoslavia. In 159 under different names and constitutional structures. existedwithin samethe borders from 1919 until 1991 (hereinafter: Yugoslavia), although The nomination of Socialthe Federal Republic of Yugoslavia originates in State the but1977, 3.1. 3.2.). newthe obligations standard to required by internationalthe community after 1991(point international obligations compares SFRYthe second this of the before part 3.1.), 1991(point additional undertake Whereasof thisones. first analyses the chapter part of thestandard the to but obligations, protecting minority these continue to only not States successor required mentioned regional custom (at that time that (at custom regional mentioned minority which undersucceeded by before- werethe to related protection States successor the SFRY the of obligations international concrete the examine will thesis the Europe, Eastern Having established aregional customary law which in binds Central States successor and The Kingdom of The Serbs, Croats Slovenesand changed its name in 1929 to Kingdom of Yugoslavia, and III. International minority protection obligations of the SFRY before 1991 imposed onsuccessor States oftheSFRY by theinternational Chapter Three: The higherstandard ofminorityprotection in statunascendi community 42 159 Until international it1991, undertook ). The international community international The ). CEU eTD Collection treatment oroppression.” See of any they verydanger against have unjust adequate fromthe assured protectionbeginning guarantees and 1919: “It is believed thatthese populations will be more easily reconciled to their new position if they know that accompanied thecommunicationof the final draft of the Treaty of Versailles to the Polish Government inJune 161 p. 402. Gilbert (1999)], Studies 389 (1999)[hereinafter: of International 160 p. 254. 91, fn. See(1993), supra Schachter State remains. change of constitution the name,the formorthe of State do not lead to State succession the and identity of the in the enshrined obligations international main the summarize will thesis the Hereinafter, Treaty) the Minorities The signed its newly (hereinafter: Treaty Yugoslavia Minorities created obligedconclude were so-called and powers defeated to MinoritiesStates Treaties. 20 2003 [Szalayné SándorErzsébet: International Legal The System of Institution of Minority Protection inthe (Kisebbségi században. Gondolat20. – MTA Kiadói KörKisebbségkutató III.). Monográfiák a Budapest,Intézet, intézményrendszere jogi nemzetközi A kisebbségvédelem Erzsébet: Sándor See Szalayné 1920. November 29 163 Croat-Slovene Kingdom were p. 402. properly See 160, fn. supra called “Minorities Treaties”. Gilbert (1999), 162 p. 402. 160, fn. (1999), supra of minoritiesthe and stabilization the newlyof the States. created reconciliation long-term the served have would This system. protecting minority large-scale As a compensation for the minorities, the victorious powers intended to establish a minorities. ethnic significant incorporate would Europe central in established be to States in framework newthe Worldthe of the peace settlement.framers War The I awarethat were concluded were rights minority protecting agreements international systematic major first The ensure have in continuityunder the to their territory rule. establish minorityof ameasured standard which protection will all of region the States successor paper this scale, evaluation uniform a using by obligations, these of basis the On States. Research Center] [hereinafter: Szalayné Sándor (2003)], p. 81. (2003)], p. Szalayné Sándor Research [hereinafter: Center] See theletterof Frenchthe Prime Minister Clemenceau to the Polish Prime Minister Paderewski which Geoff Gilbert: Religio-nationalist Minorities the and Development of Minority Rights Law. In:25(3) Review th on of Nations League of the auspices the under protected became and 1920 July 16 on force into entered It Only the agreementsinternational concluded with Poland, Czechoslovakia, Romania, Greece the and Serb- Century.(Minority Monographies III.). Gondolat Kiadói Kör –Hungarian Academy of Sciences Minority 3.1.1. 163 in 1919 which determined the minority inprotection Yugoslavia until 1945. Treaty ofSaint-Germain-en-Laye (1919) United Kingdom Treaty 43 Series 8 (1919), Cmd 223., par. 4. Cited 4.Cited by par. Cmd 223., (1919), GilbertSeries 8 161 As new the aconsequence, 162 160 CEU eTD Collection 1919 citizens1919 transferred territories the from of enemyYugoslavia to byStates peace the articlesthe Some of applyconclusion Treaty. the of inhabitantsonly those to whowere before the of time the at Yugoslavia of situation geographic and composition ethnic the context, of rights special minority includes Treaty which was The inclusion Minorities due to the establishments. educational and social religious, expense” own their “at maintain and establish to right the have members minority Finally, State. the for appreciation flexible a language own one’s use of courts, beforethe clause which leaves a wide margin of establish a purely right the “adequately”it grants However, to duty. negative ensure State the to seems provision this authorities, public with communication the in language own one’s language in private,public life and in thepress.Since provide not for itdoes the free use of and itrecognizes thefree Furthermore, useof 6). being (Art. nationalsnot State another State of the of territory inthe born persons” “all to nationality grants It minorities. linguistic or religious racial, privileging rights minority clear grant but 7-8), (Art. law the before equality and 7) (Art. non-discrimination 2), Art. religion, of freedom and liberty life, to (right As for the general minority rights, the four articles not only ensure basic human rights rights”). minority (“special minorities special to regard with whilerights”), five articles wereespecially takingdrafted minority situationthe into account of 1919, (“general Yugoslavia of “nationals”) (or inhabitants all of respect in applies 8) From the nine material articles related to minority protection (Art. 2-10), four (Art. 2, 6, 7 and ensured protection by it (points minority 3.1.1.2-3.)of and examines threshold its historical historical effectthe (point 3.1.1.4.). measures 3.1.1.1.), (point Treaty Minorities 3.1.1.1. International obligations of Yugoslavia undertheMinoritiesTreaty 44 CEU eTD Collection and to refer a dispute to the PCIJ. Later, the League the of Later, Nations PCIJ. the established refera dispute to and a to petition andgiveaction suchdirections as itmay deem andeffectiveproper in circumstances”the of before-mentionedthe respect the guarantee rights. The Council such “take to has the power As for the guarantee mechanism, Art. 11 provides that the League of Nations shall privileges. certain minority Muslim the allows or – sums public certain of application and enjoyment in the share equitable the schools, in primary tongue mother in the instruction various entitlementsfor nationality, rightsuch as the territories option – transferred the to the of members minority the grant rights minority special The Yugoslavia. in members minority all life and linguistic religious the for free ensures cultural, In Treaty sum, the Minorities foundations and establishments shall be recognized andassured by State. the Kingdom of the Serbs, Croats and Slovenes), 10 September1919 [hereinafter: the Minorities Treaty]. 165 spiritual leader,the protection of religious establishments by the State (Art.10). 164 It grants It the grants Muslim special privileges religious population instruments stated it. financialis particular of importance sincesupport very internationalfew later providing adopted provision this Especially purposes. charitable and religious educational, for sums public of share equitable an from benefit shall minorities these addition, In 9). (Art. schools primary in language minority the in instruction to right the ensure shall State the minority, the to belongs proportion” inwhichaconsiderable districts and “in towns that provides Treaty In territories transferred to Serbia or to the Serb-Croat-Slovene State since 1913, the nationalitySerb-Croat-Slovene nationality the or 3-4). of their (Art. kin State either for right opt the to territory transferred of the population the grants The Treaty treaties. Art. 11 of the Treaty of Saint-Germain-en-Laye (Treaty between the Allied and Associated Powers and the and Powers Associated and Allied the between (Treaty of Saint-Germain-en-Laye Treaty 11of the Art. The privilege to regulate personal status andfamily law religiousundertheir rules, to have a nominated 45 164 addingreligious that 165 CEU eTD Collection monitoring bodies tried to specify the above mentioned obscurities. AlthoughStates have undoubtedly a wideof margin appreciation, some instrumentsinternational or the in itself that does not specify who, where, when, what language to and what extent shall enjoy this right. classicalminority stipulated right by severalinstruments is the to right use the minority language, aprovision whichleaves theState a wide flexibility to decide to what extent itensures theminority rights. For example, a forcebinding extremely differs. Thirdly, minority provisionsrights have been drafted traditionally in amanner instruments of differenta wide on nature, scale from international treaties up to political declarations whose the practice followed by States only to a limitedextent. Secondly, the thesis will compare international 168 167 legal sanctions, procedure this similarly led to political compromises. See Gilbert (1999), supra fn. 160, p.405. examinationof the petition the Councilin which afilterhad mediator and role the in procedure. Instead of Endowmentfor Peace, International 1945, p.103-104.; The Minorities Committees were responsible for the National Minorities.Experiment.AnTranslated from Spanish the by Eileen E.Brooke. Washington, Carnegie 13-14. See also p. Pablo de Geneva,1931. I.B.1 (C.8.M.5.1931.I), Azcárete y Florez:League of Nations and Religious Minorities by Leaguethe of Nations.Series of League of Nations Publications, I. B. Minorities, 166 establish auniform system of comparison which leastcould at by another. required those with instrument rights human one under obligations international the compare to impossible fast is it that admitted be must it However, instruments. international further the with comparison of basis a as serve will which protection, minority of threshold theoretical On the basis of the obligations enshrined in the Minorities Treaty, the thesis will establish a confrontational” and minorities had at least aforum turn to to. whichthrough complaintsprocedure could be addressed itwithout being seen as international the Nations, of League the servedorganization as a “formalised, supra-national Although a little percentage of cases could be effectively solved under the auspices of Council.the and to violatorthe State which to was later forwarded Nations of League the with petition a file to right the had individual or group any mechanism: Firstly, comparisonthis focuses mainly onthe text of the minority rights provisions and takes into account p. 406. See 160, fn. supra Gilbert (1999), See theTittoni Report of 1920,elaborated inthe League of Nations, see Protection of Linguistic, Racial or 3.1.1.2. 168 As opposed to the difficulties of such an analysis, the thesis will nevertheless will thesis the analysis, an such of difficulties the to opposed As ensured bytheMinorities Treaty Abasisfor further comparisons –thethreshold ofminority protection 46 167 grosso modo 166 demonstrate how CEU eTD Collection instruments. any case, categorythe of “otherprivileges” isable to cover allfurther minority rights codified by other included already the Minoritiesin Treaty and which formed a basis for further progressive legal instruments. In indigenous people or the dynamically developing rights of migrant workers), but focus on the rights which were 169 State funds, “shall survey The present measure try theto standard not does ensure” etc.). (e.g. obligations positive expressed with rights the are weighty most the and more weight clause flexibility a by limited obligations positive or etc.) bodies treaty provision, the of text the through well-defined is content the but State, the of appreciation of margin a (with obligation national legislation”are evaluated less, obligations etc.) other expressed positive without with accordance “in possible”, as far (“as clause flexibility a by limited obligations whereas The weight obligationthe of standard. legaldepends onthe stringency of obligation:the inclusionthe of each beforeof the mentioned elements will asalevelcount increasing instruments, the When under of international the measuring standard minority protection autonomy). like status constitutional rights, political (e.g. members minority of privileges other 10. language; minority the of instruction have to right the and/or language minority inpress minority access to 8. authorities; language;have right 9.the instruction to in the administrative before in public language minority the use to right the 7. courts; before public in language minority the use to right the 6. life; private in language minority the use the to 5. right institutions); educational cultural, maintain and establish to right (the rights cultural 4. common underone 3.obligations be aspect); concerningtreated religiousalso rights minority;the of could two later the (although law before equality 2. non-discrimination; of rule the 1. part of State) of the part the on obligation an meaning “rights”, as sometimes (expressed obligations State following the from the of point instruments view of The will thesis protecting the analyze minority States. differentYugoslavia elements successor imposed andits the instruments of on of international far standard the minority developed andwhich protection are the common Admittedly, these do rights not cover the whole spectrum of minority (e.g.rights the rightsofland 169 : 47 CEU eTD Collection visualized as follows: as visualized Considering the above criteria, the standard required by the Minorities Treaty can be mechanism. strongest bindinginternational mechanism guarantee with a complaint is evaluatedprocedure as the lessadvisorycounts than amonitoring power body functioning a petition whereas a procedure, with body monitoring a evaluated: similarly be will any, if mechanism, guarantee international the of strength the Moreover, by it. established threshold the is higher the practice), relevant the or text, by the (either defined are obligations the precisely more the and instruments international in the enshrined are rights more The instruments. international other of to it those compares and threshold the of visualization the with oneself contents but quantitatively, Standard ofthe Minorities Treaty (See Appendices) Minorities Treaty Minorities 2 2 3 3 2 2 3 0 1 2 3 48 Non-discrimination law before Equality rights Religious institutions educational cultural, maintain and establish to right The private life in language minority use to Right language Access topress in minority language minority the in education to right The before administrative authorities language minority use to right The before courts language minority use to Right Other privileges International guarantee mechanism CEU eTD Collection under the 173 172 Minorities]. Study Genevaof1950), Validity [hereinafter: Doc. April ofthe (7 E/CN.4/367 Concerning the Undertakings 171 p. 94. Collectiondelegate, of Romanian Documents of Conference,Paris Both vol.p. 227. cited byI., Kontou (1992), Romanianthe representative, 2 September 1946,Doc. CP/ROU/P Doc.8, p. 13. See also the declaration of the Kontou As (1992)],p.94.; forPress Oxford,Oxford,1992 [hereinafter: seeRomania, ofStatement Clarendon LightTreatiesthe of in New Customary Law.International (Oxford Monographs Law)in International protectionsufficient. argumentation Forthe of Hungary, see Nancy Kontou: The Termination and Revision of widerconcept of the universal protectionof thus individualrights, held human the “indirect“ minority apply didnotthus more the Minorities Treaties. The majority of States imagined minority protectionthe in Romania considered special the protectionof minority asincompatiblerights with the concept of rights, human 170 of of circumstances, changedthe on situation as awhole. but exist”. minority regime Versaillesthe of protection “should treaties be considered as having ceased to by bound in interested minoritiesStates or the treaties. concludedand treaties andfinally the 1945 after considerableCharter the UN changes in the by the position of the substitution its and regime protection minorities inter-war the mechanism, changes,examines study the thedissolution of League the of Nations as guarantee the principle in enablesterminate caseof fundamental atreaty to change of circumstances. As such clausula rebus sic stantibus requested togive an opinion on the validity of the Minorities Treaties. Treaties concludedTreaties in inter-warthe period. different represented Conferenceopinions validitythe and States about of Minoritiesthe Minorities WorldAfterthe expressly War, Second werenot Treaties terminated Peace the on See Study of the Validity of the Undertakings Concerning Minorities, supra fn. 171, p.70. See Study of the Validity of the Undertakings Concerning Minorities, supra fn. 171, p.71. See CommissiononHumanRights: Study of the Validity of the Undertakings Concerning Minorities. UN- Forinstance, whereas Hungary claimed Minorities thatthe Treaties were stillforce, in otherStates like 172 Summarizingthe concludes that above-enumerated changes, the Secretariat the astudy prepared The Secretariat It seems that the study based study thisthe seems conclusion that on each It not of fundamentalthe changes 3.1.1.3. clausula rebus sic stantibus The alleged Treaties Minorities termination ofthe could be applied Minoritiesthe to Treaties. This always disputed , the study examines its applicability to Yugoslavia. The Yugoslavia. to applicability its examines study the , 171 170 in which it examined whether the principle of principle the whether examined it which in 49 Within was Secretariat United the the Nations, 173 Beyond this general conclusion general this Beyond CEU eTD Collection 175, p. 121. 175, p. fn. (1996),supra See284.; Åkermark 176,p. 177, p.32.; fn. also (1954),supra fn. Kunz supra (1975), See Haraszti treaty. of the termination expressed an for need no been have would there then it, to objected had others stantibus 178 p. 32. (1975)], Haraszti III) [hereinafter: 177 p. 285. 48AJILLaw ProtectionIn: Kunz(1954)], of for Minorities. 282 (1954) the National [hereinafter: International 176 Bruegelp. 415. (1974)], 413 (1974)[hereinafter: Journal Rights Bruegel: ANeglected Field of the Protectionof Minorities. 2-3 In: Revue des Droits de l’Homme/Human likeparties Secretary-General. its UNor the fundamental changecircumstances of is invokable only by by of one not parties, butthe third the Convention, Vienna 1969 the of 62 Art. under is that conclusion the against argument reasoningthe is “defective and inconclusive”. (1979); Bruegel also is forthe Law 116-123, 128-129.Reproduced17 p. StudiesInternational (1958)], Feinberg inhis [hereinafter: (1958) Minorities andthe Clausula Rebus Sic Stantibus. Concerning See also In: Studies inLaw, Undertakings of 5 Scriptathe Hierosolymitana Validity Legal The 95 Feinberg: See N. of desuetudo. process accelerated by an Kontou (1992),96.170, supra fn.p. ; Similarly,Feinberg claims the that Minorities Treaties were terminated is called the parties to disregard the minorities treaties inthe future on the basis of protection. rights human This latter new customcan terminate a treaty: either by a specific act of one of the parties or by a tacit agreement among New York, 1979[hereinafter: Capotorti Study],140.; Kontou par. notes there that are the two ways in which a Francesco Capotorti: Study onthe Rights of Persons Belonging to ReligiousEthnic, and Linguistic Minorities. famous study, cited the conclusions of the Secretariat’s study without critics. See UN Doc. E/CN.4/Sub.2/384, his in (1996)],p.121.;Capotorti, Åkermark Hague-Boston, London-The 1996 [hereinafter: International, Spiliopoulou Athanasia Åkermark: Justifications of Minority Protection Law.International in Kluwer Law Protection International The of NationalMinorities in Europe. Åbo Akademi, Åbo, 1969, p. 72-73. Cited by rights. minority première guerre mondiale. In: VI(1)Revue In: mondiale. guerre Hellpremière 65.;fn. Dinstein (1976), supra fn. 131, p. 117.; Aristos Frydas: Validité des traités minoritaires conclus après la Cited Universityby163, p.170., Harvard p. 55-60. fn. 1955, Press,(2003), supra Szalayné Sándor Cambridge, 175 174 Secretariat’s conclusion,Secretariat’s minorities, these least” asregards Minorities the regime Treaty “ismore no applicable”. “at that holds it enemies: Yugoslavia’s for population) Greek the and Turkish the than other (minorities minorities the of assistance the of basis the on mainly conclusion its draws study wasrule calledThis by Haraszti “procedural asthe requirement” of principlethe of 146 ofRecueil In: Circumstances. Change des Cours Fundamental 1 (1975- György and Treaties Haraszti: 168-169.; See 163,p. fn. Josef(2003), supra See of Sándor Present Status Szalayné The L. Kunz: the See Thornberry (1991), supra fn. 137, p. 54.; Inis L. Claude: National Minorities: an International Problem. anInternational Minorities: National L.Claude: Inis 54.; p. 137, fn. supra See(1991), Thornberry See Study of the Validity of the Undertakings Concerning Minorities, supra fn. 171, p.65. On the other hand, some authors do not share the conclusion of the study. One basic One study. the of conclusion the share not do authors some hand, other the On As for the evaluation of the study by the doctrine, most authors accepted the . He holds if that any of the parties had invoked the desuetude 176 in whichcase in theminority protecting obligations should not be expressly terminated. See Haraszti is of the view that although the final conclusion of the study is just, is study the of conclusion final the although that view the of is Haraszti 175 but some among but them criticized passivity the of the UN related to desuetudo rather than the fundamental change of circumstances, see J. W. see J. of circumstances, change fundamental the than rather þ nique de Droit International (1953), p. 60–63.; Tore Tore 60–63.; Modeen:(1953), p. de International Droitnique 177 178 50 Given legal the weaknesses of study the and clausula rebussicstantibus clausula and no one of the clausula rebussicclausula 174 CEU eTD Collection Minorities. See UN Doc. E/CN.4/SUB.2/1996/2, p.11., par. 44. CommitteeInternational forEuropeanSecurity Cooperationand on the first session of the Working Group on view E/CN.4/Sub.2/1992/NGO/27 (3September this was1992); Similarly, by represented observerthe of the Reconciliation,non-governmental a consultative organizationin status (category II). See UN Doc. Discrimination Protectionand of Minorities. WrittenStatement submitted by FellowshipInternational of 180 See 175, Bruegel fn. minorities”. supra (1974), from by “protection War the World Second the after replaced was of minorities protection the notes, Bruegel ofsign tendency the isafurther 153.; It to according 163,p. fn. as which, supra (2003), Szalayné Sándor See See discussion. of the pointlessness expected of the because study the consideration into take to not the properness of the study. Szalayné Sándor Commissionadds the that on Human Rights voluntarily decided study. It was for years 179 on their agenda and there was no expressed reason why these bodies did not deal with the of invoke as study of a Secretariat the the example,majorto wasreticentFor precedent ILC the reactivation. their proposed even or Treaties Minorities the of validity possible the discussed in the Cold War era, theAlthough international the continue Minorities the communityto shortsighted Treaties was too historical changes of 1990 gave rise to certain claims which either ensure which their standard to nextwillpointthe explain. Minorities Treaties in the Cold War period as a Sub-Commission on Prevention of Discrimination and Protection of Minorities proposed to proposed Minorities of Protection and Discrimination of Prevention on Sub-Commission the of Minorities on Group Working the of members two Similarly, Convention. Vienna 1969 bestudy enduring. to proved the of conclusions the reason, that for and mechanism rights minority a revive to tried power in However, Coldthe Yugoslavia of War party. contracting climate,status asa noleading neither general the special the nor changes of circumstances did fundamentally transform the this memorandum thesisTreaties, considers Secretariat’s the legally Furthermore, erroneous. particularly lack the of invoking the Forlatter,the see e.g. claim the ofNGO an onthe meeting of the Sub-Commission on Prevention of Inaddition, the CommissiononHuman Rights andthe Sub-Commissionwere reluctant evento discuss the clausula rebus sic stantibus 3.1.1.4. The (historical) effect of the Minorities Treaty 179 Consequently, this thesis considers the termination of the of termination the considers thesis this Consequently, clausula rebus sic stantibus and the study got a minor role in the commentary of the p. 414. 51 fait accompli fait , but emphasizesbut , ascholar claim by any party to the Minorities the to by any party 180 CEU eTD Collection thesis is due to a special article on the protection ofminorities,a specialthesis isto article the protection 27.Beforeanalyzing due Art. on the The SFRYsigned in ICCPR the 1967 and ratified in relevance1971. The of Covenantin this exceeding them by internal legislation. Minorities by Treaty international contemporary adopting and eventuallystandards by of of the least SFRYensure standard the the at States isitsuccessor required reason, that international law,later “lowerbar”must it andweakenthelegal the not that For guarantees. obligations:human reachedastandardof State’s aState once requiredrights by protection theoretical requirement is linked to the irreversibility of human rights treaties, rights human of irreversibility the to linked is requirement theoretical theironce citizens that enjoyed. protection the Thisguarantee to States Yugoslav successor for call would claim doctrinal a validity, its support not does law international Although actuality subsequentas the and, humanitarian crises show in importance. its region,the nor it. to succession Yugoslavia’s and Treaty Minorities the of validity itneither excluded confirmed that nor least canstate one at the possibilitygrounds, of the other on jurisdiction its based and Treaty Minorities the of validity the discuss to avoided Court the Although valid. considered it which Treaty Minorities the under bases, other among inGenocide ICJhad the the case(Bosnia-Herzegovina jurisdiction, that v. Serbia-Montenegro) exclude that the Minorities Treaties were still binding. still were Treaties Minorities the that exclude 184 ofJudgment 38. 11 July par. 619., 1996, p. 183 182 181 enforce the past Minoritiesenforce past the Treaties See 1.1.1. point supra Objections, Preliminary 25, fn. supra Serbia-Montenegro), v. (Bosnia-Herzegovina case Genocide See See UN Doc. E/CN.4/SUB.2/1996/2, p.12., par. 46. See UN Doc. E/CN.4/SUB.2/1996/2, p.11., par. 45. 3.1.2. As these instances indicate, the validity of Minorities Treaties have lost neither its neither lost have Treaties Minorities of validity the indicate, instances these As The International Covenant onCivil and Political Rights 181 and even Chairman-rapporteur,the Asbjørn Eide did not 52 182 Finally, Bosnia-Herzegovina argued 183 184 and focuses on CEU eTD Collection led finally in adoption the of 1992UNDeclaration. the 1992 to of Minorities” Protection a ”Declarationon which proposal was the as to draft important most rights. minority on proposals draft times several submitted Yugoslavia itself: Yugoslavia influenced by the material provisions of the Minorities Treaties. Minorities the of provisions material the by influenced préparatoires the Nevertheless, protection. minority with deal not did UN the 1966, in ICCPR the of D/CN.4/1983/66. CommissiononHumanRights at its 39 189 ofrepresentatives p. 251. Yugoslavia. 137, fn. See (1991), supra Thornberry finally,not surprisingly, the minority ofparagraph the 1975 Helsinki Final Act was also prepared by the seminars underaegis the of the UN (UN Doc. ST/TAO/HR/23, Ljubljana; UN Doc. ST/TAO/HR/49; Ohrid); Yugoslavia. 1974,Yugoslavia twoand UnDoc. 1968 and organized In E/C.3/307/Rev.2.; Denmark Union, Committee of the General Assembly,proponents main the of detailed minority provisions were the Soviet on the Italian Peace Treaty, see supra fn.170; During the discussions on the drafting of the UDHR in the Third Minority IV (1)Rights. The Western In: Political Quarterly 1 (March, 1951), p. 8.;As for the similar proposal that warned and it would lead disagreement to conflicts.international his expressed See Joseph B. Schechtman: Decline representative of Yugoslav the International ProtectionThe ofdelegates. British the and American about education the of Yugoslavian minority members motherin their tongue which was rejected by the 188 religion, or to use their own language. “ See UN Doc. E/CN.4/641, Annex II. community withothermembers of group,their to enjoy owntheir culture, to profess and practice their own drafted1950:“Persons in belonging to ethnic, religious, or linguistic minorities shall not be denied in the right, 187 p. 726. SR/A/C.3/161, 186 [hereinafter: Un Doc. E/CN.4/52], Section I.,p.8. Minorities,Report submitted totheCommissionon Human Rights, Un Doc. E/CN.4/52, 6 December 1947 185 protecting minorities protecting article an of inclusion the on proposal a was there Rights, Human of Declaration Universal minorityof UNrelatedthe to subsequentworks Already protection. during drafting the of the necessary: firstly, lapse the Minoritiesthe of hinder did Treaties not its indirecteffect the on theminoritysubstance of rights ensured by this provision,remarksintroductory seem two As forYugoslavia’s see proposal, UN Doc. E/CN/4/1.1367/Rev.11978); see (2March also ofreport the the After Secondthe World War, Yugoslavia proposed to include a provision the peace in treaty with Hungary Moreover,123.; core175, p. of 27wasadopted the fn. Art. latter supra already (1996), Seethe Åkermark Itsadoptionwas hindered by EleanorRoosewelt, member a of the drafting committee. See UN Doc. CommissiononHuman Rights, Sub-Commission Preventiononthe of Discrimination and the Protection of Secondly, not only the Minorities Treaties had an effect on the adoption of Art. 27, but of Art. 27 of the ICCPR did not take place in a legal 185 (although it was finally rejected finally was it (although th session UN(1982): UN 446.; Doc. Doc. par. E/1983/13, 53 186 ) and ) between 1953 and the adoption 189 187 vacuum , but were certainlybut , travaux 188 Its CEU eTD Collection to take affirmative action in order to ensure the rights of minorities, the minimalist view’s minimalist the minorities, of rights the ensure to order in action affirmative take to have 27and of Whereas holdsArt. activist radical scope thatStates the school extends the or Minorities: PositiveMinorities: 344-371. orNegative? Quarterly 344 (1988),p. Rights 10Human In: (1983-4) Recueilp. 323-324.;Ryszard182 des Cholewinski: 251(1983), Cours State Duty towards Ethnic PoliticalRights. p. 270-289.; 1981, Felix Ermacora: The Protection of Minorities before the United Nations. In: Rights of Minorities.LouisIn: Henkin (ed.): The BillInternational of Rights – The Covenant on Civil and 191 Nijhoof,Honourp. 195-210. ofMartinus 1994, Vol.III, Dordrecht, Schermers. In: R. LawsonRights: Discrepancies Divergences and between– the CovenantInternational M. andthe Council of Europe System.de Bloisp. 480-505.;Åkermark mentions also Higgins as possibly belonging to (eds.): this school: Rosalyn Higgins: Minority Mosler, Nowak 1983,p.949-979.; Hermann für fn. Festschrift (1993),supra Menschenrechte. Gerichtsbarkeit The DynamicsCivil Politicaland Rights. In:Rudolf etBernhardt al.:Völkerrecht als Rechtsordnungof Internationale the ProtectionTomuschat:108-109.; Christian Protection of Minorities under Article 27 of the CovenantInternational on of Human190 Rights in Europe. Essays in Cholewinski) Ermacora, Thornberry, Sohn, radical the activist or school (Capotorti, interpretation: the minimalist or passive view (Modeen, Tomuschat, Nowak, Higgins) Nowak, Tomuschat, (Modeen, view passive or minimalist the interpretation: articlethe on should account. betaken doctrinal the the parties, interpretation, the primarily. Given lackthe of any additional 27 between Art. subsequentagreement or related to instrument by agreementconcludedor in treaty parties shallthe the that relation to be analysed inand treaty in theirthe is thelightany context the text, It of its object and purpose”. faith in in with good interpreted accordance ordinarythe meaningbe given terms to of the to article has a primary Given its importance, thebriefthe of interpretation the to provisionwordingthe of asopposed role. Under Art. 31 of the 1969 Vienna Convention, “afollows: as treatysounds provision The community. shallinternational the of bedenominator common although protection, finalthe wording became of 27 Art. one single compactphrase, a kind of Capotorti Study, supra fn. 175, par. 588.; Thornberry Louis fn.137,p.181.; B.(1991), supra Thornberry The 588.; Sohn: par. 175, fn. Study, Capotortisupra Tore Modeen: The ProtectionInternational of National Minorities in Europe. Åbo Akademi, Åbo, 1969, p. their own culture, to profess and practise their own religion,or to use their own language. minorities shall not be deniedcommunity in theright, with the other members of group,their to enjoy thoseIn Stateswhich in ethnic, religious orlinguistic minorities exist, persons belonging to such As for the interpretation given by the doctrine, there exist two main schools of main schools two exist there doctrine, bythe given interpretation the for As Thus, it is clear that the SFRY was interested in promoting detailed minority detailed in promoting interested was SFRY the that clear is it Thus, travaux préparatoires 54 orthe “subsequent practice” 190 and 191 . CEU eTD Collection 192 in the assist considerably ICCPR the of body treaty special the Committee, Rights Human Vienna 1969 Åkermarkthe Convention. case the holdslaw that and of annual the the reports travaux préparatoires the Treaties, of Law the on Convention Vienna the of 32 Art. under Furthermore, 27. Art. of examine methods. interpretation other allowan objective not does identification of presentstudy willan the “ICCPR standard”, synthesis their that risk the and school, activist the and minimalist the of views doctrinal the between differences considerable the Given denominator. common a find to difficult is it which instruments. rights minority other with comparison for basis a as view minimalist the of threshold the consider will thesis this Therefore, view. minimalist the of that than standard higher a suggested instrument international no thus and rights minority detailed convention Duringderogable18). Cold the under ICCPR(Art. the War, universal no other humannon- is rights right this since members minority of freedom religious the add must one Furthermore, non-discriminationthe rule equality andthe beforelaw byabove, covered are this standard. identified rights minority specific the from 2.2.): point (see rights minority of elements determined leaving aflexibility State the requiringand not positive duties. 27 restrictively, Art. of whereall which text the standard” interprets rightsthe aresoftly in choosingrequire positive not does measuresstandard and awide leaves margin State the of appreciationto what extent it ensures minority rights. Thus, one can draw a “minimalist See Åkermark (1996), supra fn. 175, p. 126. 175, fn. See (1996), supra Åkermark However, the radicalthe school However, required various positive obligations from of State the law customary the to corresponds protection minority of standard mimimalist This Finally, “subsequentthe practice” could help in interpretationthe under 31(3)of Art. The travaux préparatoires have only a secondary importance in of a treaty. interpretation the do not deeply not do detail discussionsthe of materialthe content 55 192 CEU eTD Collection decision-making,all“at levels of government” discrimination, discrimination:onlyof provide not arerequiredeffective to States remedies, against programs in its Annual between Reports 1982 and 2009. repeatedly were expressed by that thestandards far on the Committee aspossible,concentrate fluctuating Committeethe observations are of andnecessarily not thesisconsistent, the will,the as that claiming method this criticize can one Although Reports. Annual the in Committee body.Committeea Hereinafter, as this thesis examines the requirements formulated by the Annualthe drawgeneral conclusionsReports reflecting report, viewsa State the of wholethe necessarily not Committee do reflect majoritythe opinion of Committeethe when commenting reasoningis persuasive: whereasthesummary meeting of Humanthe records Rights mainly27 of Art. interpretation based the Annualon the of Committee.the Reports Her possible “standard” thesisthe of 27, Art. will follow by method the proposed Åkermark who A/47/40(SUPP) 450. (1992), par. 201 482. par. Doc. I)(1993), (Part A/48/40 200 199 ; 572. UNpar. Doc. I)(1993), (Part A/48/40 numberof pupils required fora school to receive State funding discriminated againstminority religions.” See Sometimes Committee the was ready to discuss complicated and nuanced questions like “whether the minimum 198 197 196 195 account. 85(18)]willbe not into taken (2005), par. Committee insularly, onceits practice, in e.g. street minority signs in the language [UN Doc. A/60/40(Vol. I) 194 in 1994 anditdoes not necessarily express the total experience of the Committe on Art. 27.See ibid, p. 133. source of primary importance for interpretationthe since the General Comment on Art.27 was finally adopted 193 interpretation as primaryinterpretation means. UN Doc.646.; UN Doc.par. A/46/40(SUPP)135.; (1991), par. UN(1989), See Doc. e.g. A/44/40 See e.g.UN Doc. UN UN 613.; A/46/40(SUPP) 240.; Doc. 646., I)(1993),par. (1991), par. A/48/40(Part See e.g. UN Doc. 136.;UN A/44/40 (1989),par. Doc. A/47/40(SUPP) 322.; (1992), par. 157.; Doc.A/54/40[VOL.I](SUPP)par. 646.; (1999), Doc.UNpar. A/46/40(SUPP) (1991), e.g.See See e.g. UN Doc. A/46/40(SUPP) 486.,UN (1991),par. Doc. A/47/40(SUPP) 72. (1992),par. UN Doc. 82(22);UN A/60/40(Vol. I)(2005),par. Doc. A/62/40(VOL. I)(SUPP) 80(24) (2007),par. UN Doc. E.g. A/55/40[VOL.I](SUPP)37. par. (2000), These reports annual are available onthe home page of the Committee. Requirements that expressed the However,126-127. p. 175, fn. she does supra (1996), the not find as SeeComment General a Åkermark Under Art. 27, the Committeethe requires 27, equalityUnder Art. before law 196 but also access to public alsoaccess to but offices, 193 Since this seems to be an objective guideline to identify a identify to guideline objective an be to seems this Since 56 194 199 (in the parliament, the (in 197 positive measures 195 and an active prevention active an and 200 local government, 198 , representation in representation , 201 CEU eTD Collection culture. language, language in school the system, minority language. available in minority languages. minority in available administrative bodies administrative minorityuse the rightensure to the language in official communications, before legal and proceedings, civil or administrative procedures as well. as procedures administrative or civil proceedings, use minority rightto language before courts, officiallargelyare the matters guarantee byrecognized areaskedto Committee.the States language in private life is ensured by privacy), 17(rightArt. to whereas linguistic rights in of the minority. positiveculture the preserve urges measures to 215 UN 195. Doc. university language!); minority educationand (1988),par. in A/43/40 235-237(primary par. 214 213 A/63/40(VOL. I)(2009) 212 211 210 209 more softermuch wording!) UN Doc.85 (20); 72(17) A/63/40(VOL. Committee (the par. I)(2009),par. usedI) (2005), a A/60/40(Vol. 208 207 80(17) (2009), par. 206 205 204 203 83 (8)(a) 202 institutions, religious establish to right the recognizes Committee army, police UN Doc. 74(20); par. A/63/40(VOL. I)(2009), UN358.; Doc. 327.; UN See UNA/34/40 (1979),par. e.g.par. Doc.Doc.(1978), A/33/40 A/39/40(1984), See UNe.g. Doc. 451. A/47/40(SUPP) (1992),par. UN UN172.; Doc. Doc. A/54/40[VOL.I](SUPP) 118. A/47/40(SUPP) par. par. (1992), (1999), ; UN Doc. See 274. UN UNe.g. 80., Doc. 321., Doc. (1983),par. (1982),par. A/38/40 A/37/40 See UNe.g. Doc. 462. UNpar. 90.; Doc. A/46/40(SUPP) I)(1993), (Part (1991),par. A/48/40 See 12. commentUN No.par. General Doc. 25(57), A/51/40[VOL.I](SUPP) V. (1996),Annex See e.g.UN UN Doc. 215.; Doc. par. A/40/40 (1985), A/52/40[VOL.I](SUPP) 385. ; UN (1997),par. Doc. UNp. 144.; Doc. 175, fn. See (1996),supra A/53/40[VOL.I](SUPP) 131. Åkermark (1998),par. UN 406.; Doc.UN Doc.A/41/40 (1986),par. A/46/40(SUPP) 180.;UN Doc. (1991),par. A/63/40(VOL. I) See UNe.g. Doc. UN. 180.; Doc. 136., A/46/40(SUPP) 276. A/47/40(SUPP) (1991),par. (1992),par. p. 154. 175, fn. See (1996),supra Åkermark UNUN Doc. 81(8); Doc. 82(26) par. A/63/40(VOL. I)(2009), par. A/63/40(VOL. I)(2009), SeeUN e.g. Doc. A/53/40[VOL.I](SUPP) 383. ; UN (1998), par. Doc. [VOL.I](SUPP) A/58/40 (2003)par. 215 213 Finally, it consistently requires that the status of the minorities shall be determined be shall minorities the of status the that requires consistently it Finally, books in books minority language 202 and in judiciarythe 210 As for educational rights of minorities, it repeatedly required the use of 208 and states that information and materials about voting should be should voting about materials and information that states and 211 209 the right to education right the into minority language, It emphasizes also the right to have access to media in the 203 ). Beyond the freedom of religion (Art. 18), the 214 206 57 and specific instruction about the minority the about instruction specific and although it is unclear whether it covers criminal covers it whether unclear is it although 207 The Committee requires States to TheCommittee requires States 204 205 educational institutions and institutions educational The right to use minority use to right The 212 of the minority the of CEU eTD Collection Doc. UN A/51/40[VOL.I](SUPP) 121.; Doc. (1996),par. A/52/40[VOL.I](SUPP) 105. (1997),par. 216 monitoring. the for responsible of State denominator common the reflect practice,necessarily not do requirements These life. public butof segments presentsseveral in members minority of an representation “activist”the in and minority the of rights cultural bodies, perceptionadministrative before in education, rights linguistic in ofespecially Art.obligations positive 27 by the special treatycan observeanexceptional activity Committeethe of which established high withstandards body solutions. friendly achieve to tries Committee the instead, force: binding have not do decisions its However, cases. individual – conditions certain under – examine can and monitoring the for responsible is Committee Rights Human the mechanism, guarantee the for As minorities. of privilege” “other by law in aforeseeable andaccessible manner SeeUN e.g.UN Doc.298.; Doc. A/47/40(SUPP) A/50/40[VOL.I](SUPP)par. (1992), 322.;UN (1995), par. Summarizing of Human practice underthe the standards the Rights Committee, one 58 216 – a State duty duty which –aState can be classified asan CEU eTD Collection A and a Yugoslav civil administration in zone B. zone in administration civil Yugoslav a and A inzone administration civil Italian an established Memorandum) (London Yugoslavia and US Osimo expandedTreaty (1975) scopeof minority the protection. Treaty Series, see at: Series, Treaty guaranteedwider amuch minority protection. See Treaty of Peace with Italy, 10 January 1947. In: Australian nationality (Art. 19-20, Annex VI, Art. 6). On the other hand, Annex IV on the Trento Slovene,the eventuallyand Italian and CroatBolzano asofficial languages (Annex VI, ProvincesArt. 7), the to right option for 217 and Yugoslaviaand Regarding Free the Territory of Trieste. In:United Nations, Treaty Series: Treaties and 218 Territory only modest minority rights, minority modest only Territory Whileadministration B). inhabitants the (zone zone granted PeaceTreaty the of Freethe region and Triesteof the divideda British-American to it A)(zone andYugoslav to After World Second Paristhe the War,with PeaceTreaty Italy of 1947 provided for the status Namely, “equalitythe non-discrimination and the rule of eligibility for public office” (Annex VI, Art. 4), Memorandum of Understanding between Governmentsthe of Italy, the United Kingdom, the United States ICCPR - minimum 3.1.3. The standard of the ICCPR (see Appendices) (see ICCPR the of standard The The Memorandum of Understanding between the Governments of Italy, the UK, the UK, the Italy, of Governments the between Understanding of Memorandum The standard 2 2 2 The OsimoAgreement http://www.austlii.edu.au/au/other/dfat/treaties/1948/2.html MinoritiesTreaty 2 2 3 3 2 2 3 0 1 2 3 217 the Memorandum the of Understanding (1954)and the ICCPR - activist ICCPR 59 practice 218 3 2 2 3 2 2 3 3 2 3 2 Beyond the delimitation of the boundaries the of delimitation the Beyond Non-discrimination Equality law before Religiousrights cultural,educational institutions The right to andestablish maintain life private Right minority use to language in in minority to press language Access language The right to education in the minority administrativebefore authorities The minority to right use language courts Right minority use to language before Other privileges International guarantee mechanism (30.10.2009). CEU eTD Collection 886., fn. 115. 886., list Republike list Slovenije,No.20/98, Ljubljana,Cited by 1998. Klemen 220 (2004) [hereinafter: Klemen (2004) [hereinafter: Rights ofMinorities Post-Yugoslavthe Italian and in Hungarian States. In: 32 (4) Nationalities Papers 853 of schools [Art. 2(c)]. inspectorates as especially positions, administrative in members minority of representation fair to realize thisby right how affirmativeYugoslavia action: andItaly shallobligations facilitate access and the to concrete imposes it provisions, law before equality the Under 1). (Art. UDHRas the governing parties minorities. refers concerned to the action the of for State It the granted rights the concretizes Memorandum London the Annex, its In 8). (Art. barriers/duties rule (Art.6), the rightthe return territory to to moveor to away non-discrimination withoutthe administrative declares treaty the Firstly, Italy. of authority the under coming Croats minoritygrants Italiansrightsthe coming underYugoslav authority and Slovenes the and Treaty, Osimo the by continued are provisions minority which of Memorandum, London The standard of this and after its treaty 1991(point(point3.1.3.2.). sort 3.1.3.1.) 219 235, London, 5October1954. Agreements International Registered or Field andRecorded with the Secretariat of the United Nations, Vol. Memorandum London of the be continuedvalid to after 1975. provided by which Specialthe isStatute, hereby terminated.” membersthe minorities concerned to “guarantee the of same the level as was of protection finalized shall Yugoslavia and the Italy that status 8 of Art. its inTrieste. provided It whichapply were continued to Osimounder the Agreement of 1975 (Osimo which Treaty) Italybetween and Yugoslavia, London Memorandum the severalguaranteed minority rights It was by Itrecognized Decreethe of of Court the Constitutional Republic of Slovenia, No. U-I-283/94, Uradni Cited by Matjaž Klemen 3.1.3.1. Thestandard oftheOsimo Treaty þLþ þLþ –Jernej Zupan –Zupan þLþ (2004)], p. 886. (2004)],p. þLþ : TheEffects of the Dissolution of Yugoslavia on Minority the 60 þLþ 219 –Zupan 220 Thus, the minority provisions minority the Thus, It is worth to consider the þLþ (2004), supra fn. 219,p. fn. (2004),supra CEU eTD Collection territorial scope since it applies only to the minorities of the Trieste region. Trieste the of minorities the to only applies it since scope territorial Osimothe is Treaty that of account intoa restricted musttake one However, ICCPR. affirmativeexpressed obligations whichfarly seem to exceed minimalist the under the standard 8). (Art. procedure complaint individual an with Committee Yugoslav-Italian mechanism,ethnicity guarantee Asthe for other the etc. Treaty the provides for aMixed whiledismiss to students the to as not of teachers the same tongue employthe mother of teachers (b)-(c)], 4 [Art. annex in the listed schools minority the maintain to obligation the stipulates kindergarten,primary, secondary and professional education in minority language and administrative authorities and courts (Art. 5), in press [Art. 4 (a)]. It guarantees the The standards of Yugoslavia's treaties before 1991 (see Appendices) minimum standard ICCPR - ICCPR For conclusion, the Osimo Treaty conserved a wide range of minority rights with rights minority of range wide a conserved Treaty Osimo the conclusion, For before life, private in language minority use to right the have shall members Minority 2 2 2 Minorities Treaty 3 2 1 0 3 2 2 3 3 2 2 Os imo Treaty ICCPR - activist - ICCPR Treaty imo Os 3 3 3 3 3 2 2 3 0 3 2 61 practice 2 3 2 3 3 2 2 3 2 2 3 Non-discrimination Equality law before Religiousrights cultural,educational institutions The right to establish and maintain life private Rightminority use to language in in minority press to language Access language The right to education in the minority administrativebefore authorities The right tominority use language courts Rightminority use to language before Other privileges International guarantee mechanism CEU eTD Collection 224 120. fn. p. 886., 219, fn. supra validity of the Osimo Treaty in the 2000s several times. as stated below, Latter, 622.; Lawp. recognized Croatia 601 (2007), the of Journal International Chinese Delimitation: Implications for Disputethe betweenSlovenia andCroatia inthe North Adriatic. In:6(3) Cited by 2. par. 11., p. Croatia, of Republic the and of Slovenia Republic the between Border the on Paper White See: Treaty”. Osimo the dispute between Slovenia.Croatia and note, this In Slovenia confirms “Croatiathat has not (yet) succeeded to SlovenianMinistry of ForeignAffairs publishednotewhich a in itexpresses its official opinion on the border 223 London/New p. 246. York, 1999, 222 Art. V of the Constitutional Decision on the Sovereignty and Independence of the Republic of Republic the of Independence and Sovereignty the on Decision Constitutional the of V Art. since valid still is it that presumes Charney but seas, territorial the on provides it when Treaty its intentionso indo 1990s.to the Italy and in Slovenia. in both apply to continued protection minority the tensions, of subject been has it although No. 40/92, Ljubljana, 1992, p. 127-128. Cited by127-128. Cited No. Ljubljana,1992, p. 40/92, Klemen Successionof Agreements of FormerYugoslavia withthe Republic of Italy], Uradni list Republike Slovenije, 221 to respect the Osimothe respect Treaty to under the logic of the 1978 Vienna Convention, only in respectSlovenia to and Croatia. Consequently,the Osimo Treaty, which applied theto Trieste region, should continue apply,to alone. whichbind State continuesuccessor hasto become that State State asuccessor whichConvention,treaties applied onlyof in of of predecessor respect territory the the a part were inhabited by a significantnumber of Italians. Under 34.1.(b)of Art. 1978 the Vienna common maritime a boundary,Croatia boundary with Italy and only successorStates these only SloveniaStates, by wereconcerned and Croatia its provisions. Slovenia has common land The dissolution of the SFRY influenced the sort of the Osimo Treaty: from the successor Itplayed arole especially the maritime delimitationin dispute betweenSlovenia and Croatia. Special Protection Law. In: Gazetta UfficialeGazetta Protection SpecialLaw. (Rome), In: No. 56.,2001.Cited Klemen Union. Routledge,European the Europe and Eastern Henderson(ed.):Back toand Karen Europe: Central Aktonostrifikaciji nasledstva sporazumov nekdanje Jugoslavije z Republiko Italijo [Act on Nostrification of As forCroatia, it was less clear whether it succeeded tothe treaty since it did notnotify Afterits declaration of independence, Slovenia notified Italy init continued 1992 that 3.1.3.2. The succession to the Osimo Treaty 223 221 and similarly, Italy recognized its validity as well. as validity its recognized Italy similarly, and Vladimir-Djuro Degan:Consolidation of Legal Principles on Maritime 224 The Croatian Maritime Code does not refer to the Osimo 62 þLþ –Zupan þLþ (2004), supra fn. 219, p. 886., fn. 117. fn. p. 886., 219, fn. (2004),supra þLþ – Zupan 222 Until today, In 2006, the In þLþ (2004), CEU eTD Collection the Trieste region. Trieste the Osimothe of extend standards the i.e. Croatia, can presumeit outside to Treaty to wanted that that the Croatia concluded an additional concluded Croatia the bilateral that minority agreementwith Italy in 1996, Slovenes living Udine in andGorizia Trieste the to province as well. Slovenianthe in Minority” earlier the 2001 extended adopted minority applicable protection to enshrined in the Osimo Treaty to all of its territory. its of all to Treaty Osimo the in enshrined Trieste region.Trieste Osimothe of within standard Treaty ensure the than the other their States concerned territory confirmedCroatia several Osimo the times itTreaty. had succeededto that minorités nationalesEtat-parent. parleur Europeancommission for Democracy through Law. Commission Croatianminority protectionsee The Protectionof National Minorities by Kin-State.their La protection des regime newlyand authoritarian 2000 an during restored in2000. For the details of the national legislation on NationalCommunities andMinorities inthe Republic of Croatia” of 1991, which law was suspended until Art. 82(1)or the “Constitutional Law onHuman Rights Freedoms and andon the Right of Ethnic and 232 (14.10.2009) http://www.mvpei.hr/custompages/static/hrv/templates/_frt_Priopcenja_en.asp?id=4902 available onthe website of the Ministry of Foreign Affairs andEuropean Integration,Republic of Croatia, see at May Press Release2 (Zagreb, 85/05 2005); Press Release 281/09 (Zagreb, 1July press releases2009), all MIN- Croatie. LANG/PR Strasbourg,Charte. Press (2003)4, 4.; Release2003, p. 14January la de 280/06 (Zagreb, 15 2December2006); l’article à conformément l’Europe de Conseil du Général Secrétaire au présenté 227 American Society of International Law, Martinus Nijhoff Publishers, TheNetherlands, 1998, p.2437. 226 225 http://www.mvpei.hr/customPages/Static/HRV/templates/_frt_bilateralni_odnosi_po_drzavama_en.asp?id=98 Ministry of Foreign Affairs andEuropeanIntegration. See at: acts international signedand between the Republic of CroatiaRepublic. theItalian and Republic of Croatia, November1996; entry into force: 8July 1998), Collectionof International Treaties. List of treatiesinternational 231 (2004), Minorities.Autumn2004 In: Noves SL, Revista de Sociolingüística/Noves SL, Journal on Sociolinguistics 230 not narrow the territorial scope of minority rights of Italians. Autochthonousthe National Hungarianand Communities Italian in Slovenia), Art. 80 (3) which provisions do national communities reside,orHungarianshall also Italian be official languages”), Art.64 (Special Rights of 229 forRegional orMinority Languages. namely rights, to Frameworkthe Conventionfor Protection the of National Minorities, the European Charter 228 Croatia Croatia does not narrow the minority protection to a given territory. See the Constitution of Croatia, Art. 15, périodique rapport Deuxième ouMinoritaires. Régionales desLangues Européenne Charte La e.g. See I. Charney Jonathan – Lewis M. Alexander(eds.): MaritimeBoundaries. International Volumes 3. The Art. Vof the decision of the Croatian Parliament of 25 June 1991. Treaty between the Republic of Croatia theItalianRepublic and concerning minority rights (signature: 5 Antonija Petricusic: SlovenianLegislative System for Minority Protection: Different Rights for OldandNew See the Constitution of Slovenia, Art.5(1), Art. 11(“In those municipalities where Italian orHungarian Slovenia Croatia, Italy and have became parties to all relevant international treaties protecting minority p. 5., fn. 22.See at: 225 The present thesisanalyzeThe present cannot in its frameworkwhether andhowfar the three accepts all accepts recognizedthe international boundaries of Croatia. 228 Briefly, it is sufficient to mention that Slovenia has extended the rights the extended has Slovenia that mention to sufficient is it Briefly, 232 In sum, the Osimo Treaty, an originally bilateral minority treaty with a with treaty minority bilateral originally an Treaty, Osimo the sum, In http://www6.gencat.cat/llengcat/noves/hm04tardor/docs/petricusic.pdf 63 229 The Italian “Law on the Protection of 230 226 Finally, from the fact 227 Later, in the 2000s, (15.10.2009) . (15.10.2009) (19.10.2009) 231 one CEU eTD Collection 2002, p. 301-307. 2002, p. duConseilde Councilof le droit. l’Europe, Editions européenne democratie par pourla Europe Publishing, which can hardlywhich in started 1992with theBalkan War (1992-1995)and continued in Kosovothe crisis be said to be The collapse SFRYisthe of characterized by solved a sequenceof violent humanitarian conflicts even in the 2000s. The almost two3.2. decades of the the international community on the successor States of the SFRY. was exceeded by standard a proliferation of international minority imposedrights standards by will pointAs next vagueof ICCPRand the the the text its guaranteed. minimalistprove, of 1919 which,although itlapsed, shall formcontinue a to necessary threshold tobe by required Osimo standard the reach the Minoritiesandthe ICCPRseem Treaty the to Treaty Both rights. minority inseveral action affirmative exercise to had SFRY the Committee, Rights Human the of practice the under whereas minorities for protection minimum a for provide is obliged to State the 27, Art. of interpretation litterary the Under thesis. this by identified rights expressly not ICCPR is27 does its Art. that ensurerequire to the States detailed minority the ICCPR bound can one concludewhile1990, that Osimo the appliedTreaty in 27 Art. of territory, arestricted before assumed SFRY the the of obligations rights SFRY minority international the summarized withoutHaving territorial limitation. scope. territorial However,relatively highapplycontinues standard to within theinterested States, successor an extended the weakness of the States of the SFRY after 1991 International standards of minority protection imposed on successor 64 CEU eTD Collection Conference and then by Recognitionthe GuidelinesSecondly, (point3.2.1.). since theBalkan EC the by standards minority high very setting Community European the of involvement of Slovenia and firstthe led Croatia to conflicts with Belgrade which (1991-1992), entailed the independence of declaration The main periods. three distinguish can one SFRY, the of States examinationIn the imposed of standards the by internationalthe the on successor documents - rights. minority with dealt proposals these of all nearly SFRY, the of dissolution the of events the in - - Security and Cooperation Security inand (CSCE). Cooperation Europe even less frequently non-binding like reports by thedocuments adopted the Organization on declarations,instruments under European auspices the adopted of Councilthe and of Europe non-binding sometimes conventions, humanrights universal were to referred proposals these which to instruments international Most Draft). Carrington the (e.g. well as rights human on provisions material included sometimes and instruments rights human international conflict settlement: they applicationusuallythe of areference to a mixtureincorporated of constitutional the on transformation States. concerned of the projects collapse Yugoslavia of entailed aseries of international dispute settlement and proposals parties; treaties and supplementtreaties domesticthe mechanisms with internationalthese proceedings. to require the successor States to become parties to these instrumentsthese become parties to if to States they yet successor were not the require to finally, to impose the international monitoring mechanisms of the concerned human rights human concerned the of mechanisms monitoring international the impose to finally, systems; constitutional domestic in immediately instruments international listed the apply to Szasz collected major three why purposes wereadopted: proposals these These internationalhumanfor provided proposals rights as an unavoidable elementof 233 65 Considering the major role of ethnic tensions ethnic of role major the Considering 234 CEU eTD Collection 235 234 247. 246- Szasz(1995)],p. Law 237(1995)[hereinafter: Journal International Western California 25 Proposals.In: 233 minorityUniona subsequentSoviet and SFRYandgaverise the to rights policy from part the the of dissolution upcoming the of dangers the by influenced certainly was rights minority of minoritiesof in of one its paragraphs. “DeclarationSummit the ofHuman Rights”adopted which expressly called the for protection Luxembourg the 1991, in June Namely, policy. foreign its in protection minority include Community European the SFRYstarted, Just before break-up of the the decided(EC) to obligations. positive defined well rights minority of be consistently to proved successorStates high, thepost-Yugoslav on requiring in imposed most types standards rights minority the that conclusion the to lead will involvement international These of three Carringtonphases standard the the comparableDraft(point3.2.3.). of to requirements, rights minority strict reflect to continued Kosovo to related plans settlement internationalrequirethe any from criteriaKosovo, recognition or dispute from Montenegro not did EU the although ambiguous: was crisis humanitarian the to community international thirdIn a period from signaturethe of Daytonthe Agreement reactionthe (1995-2000s), of the standards in with accordance theinternational human rights conventionsminority in forceset (point 3.2.2.). which Agreement, Dayton the to plans peace various through led and involvement be conflict by prevented the efforts, War EC not could the settlementtalks continued with US European Council in Luxembourg, Council26. in 1991, Presidency V,p. 28-29June European Annex Conclusions, SN/151/2/91, p. 247-249. 233, See fn. supra Szasz (1995), Szasz: Protecting P.C. Minority Human and Rights in Bosnia: A Documentary Survey of International 3.2.1. of the EC of the The first independence wave (1991-1992): minority the rights requirements 235 This first sign of an increased “internationalization” of “internationalization” anincreased sign of first This 66 CEU eTD Collection Draft], Art. 2b) 2. at: of Liverpool 238 237 236 After (B). respect shall Yugoslavia of republics the which rights minority for provides itself Draft Carrington the secondly, and (A) incorporates it provisions which of instruments rights human several to refers draft the firstly, norms: of complexity a forming provisions convention. even inimpose newStates the them absenceon the to of attempted a signature of the firstly,it set very high international standards in respect of minority rights and secondly, the EC proposals. international subsequent the for amodel as served which Convention”, the for Provisions non-binding opinionscalled text on legal elaborated aproposed but “Treaty matters, significant gave which Commission) (Badinter Yugoslavia on Conference the of Commission Arbitration the up only set not conference The laws. its by democratizing SFRY the maintain Conference Peace on The EC Yugoslavia was convened in September 1991and intended to fulfillment was examined by the Badinter Commission (point 3.2.1.3.). the democratic theRecognitionnew standardsthrough States Guidelinesfrom of which (point3.2.1.2.) requiring by region the stabilize to try to chose it Federation, the of dissolution the ECrealizedAfterthe it is that YugoslaviaConference unrealistic3.2.1.1.). on (point stop to collapsepreventthe perceptible, of try to Yugoslavia ECdecided the to by convening a Peace of focusing EC, of the on Europe. Eastern See Treaty Provisions for Convention, the 4November 1991, reproduced inthe collection of the University p. 233, See fn. supra Szasz (1995), p. 163. 129, fn. Seesupra (2004), Pentassuglia The Treaty Provisions for the Convention (Carrington Draft) (Carrington Convention the for Provisions Treaty The 3.2.1.1. 237 From the point of view of minority rights, this proposal has a double importance: double a has proposal this rights, minority of view of point the From http://sca.lib.liv.ac.uk/collections/owen/boda/ecco4.pdf The ECPeace Conference onYugoslavia 236 Two months civilas the later, Two war climate was 67 (24.10.2009) [hereinafter: Carrington [hereinafter: (24.10.2009) 238 includes minority rights minority includes CEU eTD Collection criteria asappliedsame before. the under evaluated, briefly be will instruments these of standard protection minority the Liverpool at: 239 Draft], Art. 2b) 2. of Minorities.for aConvention Proposal Protection the andDeclaration)for the UN 1992 (the Minorities“ Linguistic and Religious Ethnic, or National to Belonging “appropriately”of proposal “Declarationthe – the account taken Rightsthe on of Persons shall which be instruments, non-binding other two and documents CSCE the ICCPR, the rights: aminority of definition the in relevance particular have following the documents, these Among Draft. bythe enumerated instruments rights human international in thirteen enshrined The Carrington Draftstipulates republics thatthe of Yugoslavia shall guarantee all rights (C). summarizing thesisthe will theirstandards, resume overall the of Carrington standard the Draft Treaty Provisions for the Convention, 4 November 1991, reproduced in the collection of the University of University of the collection the in reproduced 1991, November 4 Convention, the for Provisions Treaty - - A) The OSCE documents: the Carrington Draft speaks about the human rights enshrined The ICCPR: as analyzed as The ICCPR: extensive the 27inof before, Art. interpretation practice the the CSCE meeting the in of experts Geneva national on minorities. access for the Except of report the and CSCE the of Dimensions Human the on Conference the of meeting Copenhagen the documentof the Moscow Document, the Europe, a New Paris for especiallydocuments inOSCE the Helsinkireferringthe to Final of Charter the Act, Committee (see point 3.1.2.). bythe expressed obligations positive with frequently very States, of obligations the of Humanthe Rights Committee anon-binding, created but authentic understanding of The international instruments incorporated in the Carrington Draft Carrington the in incorporated instruments international The http://sca.lib.liv.ac.uk/collections/owen/boda/ecco4.pdf 68 (24.10.2009) [hereinafter: Carrington [hereinafter: (24.10.2009) 239 Hereinafter, CEU eTD Collection 240 See e.g. Åkermark (1996), supra fn. 175, p. 256. 175, fn. (1996),supra See Åkermark e.g. - - Proposal for a Convention for the Protection of Minorities: The European Commission European The Minorities: of Protection the for Convention a for Proposal The proposal of the later adopted 1992 UN Declaration: The UN General Assembly on the protection of minorities in 1991 and proposed to the Committee of Ministers to Ministers of Committee the to proposed and 1991 in minorities of protection the on Councilprovide advices in to of order Europe in constitutional issues, prepared a draft Law (VeniceDemocracy through for Commission), byan body expert created the defining affirmative action. them of one nocan so be considered as possible”, etc.), expressly“where appropriate” (“wherever clauses flexibility by weakened sometimes obligations, positive to refers softly very text the rights, these of declaration solemn the beyond However, thesis. present the by identified rights minority of categories all guarantee to States requires Art. 27 of the ICCPR. the of 27 Art. decidedissue in 1992 to a declaration on rightsthe of minorities insupplement to order 27 of the ICCPR. Art. interpretation activist by the covered were which rights minority the for in details the first human rights instrument after the Second World War which expressly provided Nevertheless, softly how Copenhagenthe matter no document of 1990, is was worded, body. monitoring a establish not do they documents, political bare are they As binding. politically are they that add usually writers scholarly but nature, non-binding affirmative isdocuments of OSCE strength weakenedthe by action. Furthermore, their expressed without obligations State general are rights minority other whereas wording, languagebefore administrative has aparticularly and authorities before courts flexible categorized by this thesis, although usingwording. asoftThe right use minority to rights minority the all for provide standards OSCE the language, minority in press to 241 Except for the access to press in minority language, the text the language, in minority press to access the for Except 69 240 CEU eTD Collection 242 Religious Linguisticand Minorities. 241 imposed affirmative action States. duties on defined of Humanthe practice positivethe obligations Rightsto due Committee which followed by or expressed, flexibilityclearly not clauses. Nevertheless, theiror common reflects standard well not either usually are States of obligations positive the action, affirmative requires clearly Proposal Commission’s Venice the under language minority the of instruction to right the Although thesis. this by identified rights minority all protects standard summed their that conclude can one instruments, these of provisions substantial the combines one If See Councilof Europe Doc. 3(5)RUDHreproduced MC(91)29, in: 189-192. 189 (1991),p. See UN Doc. A/RES/47/135, Declaration on the Rights of Persons Belonging to National or Ethnic, although in a flexible wording and not covering all the rights identified by this thesis. by this identified rights all the covering not and inflexible a wording although of catalog minorityextendedit the meritis that rights by duties, new types of State by was rejected Committee the draft of Ministers because of its constraining its nature, the Although 24-26). (Art. Committee Rights Human the of that to similar is which is alsoIt sentence).remarkableprovides Proposal the for a petition that procedure populationthe percentage of of a region of population” total or the 9,1 (Art. substantial a reaches minority a “whenever schools public in language minority the flexibility provide instruction forclauses. the As to of anexception, itrequires States adopt itas a convention. adopt 242 Most of its minority rights provisions are weakened by 70 st CEU eTD Collection they were never specified According to Caplan,special this status was motivated by the Alto Adige/South Tirol 243 which were not yet listed in any multilateral human rights convention before. Although the Although before. convention humanrights multilateral in any listed yet not were which rights minority of catalog express the is Draft Carrington the of merit significant most The notion under the of “special status”. privileges political considerable requiring by further went but rights, minority of categories 5B). body to monitor but does notbodies andprovides police.for aninternational It monitoringgo andapermanentinternational injudiciary anyexecutive, legislative, detailsown and system educational minority a and emblems, leavesnational show to right the includes it This 5). to (Art. the status republicsspecial a enjoy shall they majority, regional a form to decide (Art. concerningin their areaswhereFurthermore, affairs” members4). the of (Art. same minority participation” in public affairs,“including of participation in governmentthe republicsof the right general “a enjoy shall members minority the majority, a not but population” the In republics 3-5). wheremembers (Art. samethe of minority form “a substantial of percentage republics, firstitsand autonomy foremostdue to provisions the under the title on “special status” action affirmative defined well impose nature political of rights minority exception, an religious andcultural, educational free rights,the language in use public meansmedia. and accessto the non-discrimination, the 3]: b) 2. [Art. obligations positive defining without although itself Draft The Carrington recognizes all of categories minoritythe rights examined before, The concerned areas were to be enumerated in the annex, but after the failure to adopt the Carrington Draft, Carrington the to adopt failure the after but annex, the in beenumerated to were areas concerned The 243 B) C) In sum, the substantial provisions of the Carrington Draft not only confirmed the main the confirmed only not Draft Carrington the of provisions substantial the sum, In as obligations, positive define vaguely or not do rights mentioned before the Although Substantial minority rights provisions of the Carrington Draft Carrington the of provisions rights minority Substantial Summary of the standard of the Carrington Draft 71 CEU eTD Collection region See Caplan (2002), supra fn. 247, p. 166. 247, fn. (2002), supra Seeregion Caplan autonomy settlementsolution –a whichlargely respects minority rights and which brought stability in the Conference on ConferenceYugoslavia, on redefinition the Yugoslavof the federation failed. to In order signitbecame Draft, After object the Carrington the Belgrade refused of clearthe to EC that recognition. of implementation in Draftby ex-Yugoslav the Carrington of the successor States mechanismthe realizedit EC isafter the unrealistic that maintain to ensure the Yugoslavia, to itattempted was finallyDraftCarrington the However, since Miloševiadopted not This Draft. summarized Carrington the is standard visualized Carrington on tablethe below. Humanthe of Rightspractice Committee minority andthe rights of political ensured the nature by by supplemented were they obligations, positive define not do and right minority each usuallyinternational incorporates itinstrumentsexceed general the not that do declaration of

ICCPR - 2 2 2 The standard of the Carrington Draft (see Appendices)CarringtonThestandard of the Draft (see

3.2.1.2. minimum standard 2 2 2 2 2 0 1 1 1 2 0 The EC conditionsof recognition of the post-Yugoslav States OSCE documents

Substantial 2 2 provisions of 2 2 2 2 2 2 2 3 1 the Carrington Draft 2 2 The 1992 UN 2 2 2 0 1 2 2 2 0 Declaration 72

Venice 2 0 Commission's 2 2 2 0 3 1 1 2 2 Proposal

Summed 3 2 Carrington 2 3 2 2 3 3 2 3 2 Draft standards ü vetoed it. Nevertheless, vetoed Other Other privileges mechanism guarantee nal Internatio Non-discrimination Equality law before rights Religious ns institutio cultural, maintain educational and establish right to The in private life language minority use to Right language in minority press to Access languageminority in the education right to The authorities administrative language before rity mino use to right The courts before language minority use to Right CEU eTD Collection recognition to respect the above-mentionedthe respect recognition guidelines to and in addition, “accept the to “Declaration striving the AsYugoslavia”, on for States successor ECrequired for the the 248 165. (2002)], p. Caplan 157(2002)[hereinafter: nationalism and 8(2)Nations Yugoslavia.Community and In: 247 17. (1999)], p. Law.6 International International JournalIn: on Minority Groupand Rights 1 (1999) [hereinafter: McGoldrick 246 245 65. (1991)], p. Sovietthe (1) EJIL65 Guidelines (16December Union’ in 4 (1993) and Europe In: [hereinafter: 1991). 244 nation. dominant the from ethnicity their in differ which communities threaten would republics Yugoslav independencethe that of account intothe member took EC the criteria, protecting States Commission. Badinter the by inspired role, a major played protection minority especially and rights human conditions, these under Furthermore, embrace provisions the to of convention draft the States unilaterally.successor ex-Yugoslav the by requiring parties the of unanimity of absence inthe even Draft Carrington The aimensure implementation the conditionsthe wasto of statehood. of essencethe of the sincemade recognition the itcriteriadependenton transcending traditional the conditions of the Soviet Union” Sovietthe (Guidelines). “Guide-lines the Declaration on and in in Recognition onthe Europe of New States Eastern in a common newStates the of recognition position called “Declaration on Yugoslavia” and achieve to try stabilization the decidedto of region the by prescribing conditions the of resolve this extraordinary the deadend, ministerialEPC meeting on16 December 1991 See Guidelines (1991), supra fn. 244, p. 65. See 244, fn. (1991),supra Guidelines Conditionalinstrument ofrecognition RichardCaplan: an conflictas ethnic regulation: European the Dominic McGoldrick: From Yugoslavia toBosnia: Accommodating National Identity in National and p. 587. See 6, fn. Weller(1992), supra DeclarationonYugoslavia, Declaration onthe ’Guidelines on the Recognition of New States in Eastern - - guarantees for of rights the ethnic and national groups and minorities in accordance with the […] thecommitments subscribed to the Final Actin of Helsinki the ofCharter andin Paris, especially The Guidelines were an innovatory political document of the European Community European the of document political innovatory an were Guidelines The commitments subscribed to in the framework of the CSCE. with regard to the rule of law, democracy right and human 247 TheGuidelines requiredconcretely: 244 73 246 As for the reason of the minority the of reason the for As 248 245 CEU eTD Collection States. In: 42(2) ICLQ 433 (1993), p. 439. 42(2)ICLQ 433 (1993),p. States. In: May 12 13 May 1992, Europe,No. by 5728 (N.S.), Statement, 3. Cited 1992, p. RecognitionC. Warbrick: of Montenegro timedidnot which considerat that itself successor State needing recognition. See Presidency 249 a State today – in Europe, at least”. at – in today Europe, a State be to means it what to definition new given “has noted, Caplan as and, statehood of conditions Carrington Draft, especially those on human rights and national or ethnic groups. confirm by December Guidelines the they whether accepted 23 and provisions the of the Conferencethe onYugoslavia.” by consideration under – groups ethnic and national of rights and rights human on II in Chapter those especially – Draft] Carrington the [i.e. Convention draft the in down laid provisions held that a referendumheld that independencethe about shouldall be open to citizens without claimedreferendum.It minorities that haveequal arightparticipation to in governmentand possibilityexpress their opinion to independencethe about and of State requiredthe a found deficiencies in fulfillmentthe criteria:of the in andcase of Bosnia-Herzegovina.Croatia concerning minority had practical relevanceprotection incaseswhere Commission the two criteria. the of fulfillment the about opinion non-binding Badinterthe Commission to wereforwarded recognition for whichStates give was askedto a Since“commitment”was vague it what and“guarantees” mean, requests of the successor See Guidelines (1991), supra fn. 244, p. 65.; Furthermore, these these wereconditions 65.; Furthermore, equally 244,p. fn. supra to applied SeeSerbia- (1991), Guidelines The importance of The importanceminority of went beyond EC the thetraditional that rightsproves As for the later, the Commission stated that the peoples of Bosnia-Herzegovina had no had Bosnia-Herzegovina of peoples the that stated Commission the later, the for As After separating the republics filedfor theirrecognition, the requirements request 3.2.1.3. Guidelines Opinions of the Badinter Commission on the fulfillment of the 249 The European Community invited all concerned States to 250 74 CEU eTD Collection 254 p. 479. 126, supra conditional implementationthe on of reformsthe promised by the Croat government. See Warbrick (1992), France declared Badinter afterthe Commission issued Opinion 5thatthe recognition of Croatia by France was 15 January, implementuntil the it date determined by the Declaration on Yugoslavia. On the other hand, 253 Greenwood), Publications 1993. 179-181. Grotius Limited, Cambridge, p. Law Reports 179 –C.J.(1993) (eds.:MemberReproduced92 International E.Lauterpacht States. in: 252 592. 6, p. See 1993.; Publications fn. also Limited,175-179. Grotius Weller Cambridge, (1992), supra (1993), p. J. Greenwood: Law – C. Reports Member 92 Lauterpacht its States.International ReproducedE. 175 in: 251 250 “special requirement status” exceeded constitutional the of someguarantees ECmembers. Commission’sthe of member with respect EC States opinion fact the was the that due to Decembernotwithstanding Guidelines. 1991, EC the According Weller, to indifference the of 5. Opinion Commission’s 15January irrespective on 1992 Croatia of lackthe of compliance with Badinterthe recognized States EC since Commission, Badinter the of opinions the follow to seem not did Community European the Moreover, modifications. promised the for provide immediately didensure special the Croatia not for However, Serbs. Croatian to status inframework order subject the reservation to that it should comply with the special status requirement. especially Draft, Carrington andSerbs for Croatian recognition the is concludedof Croatia that guarantee the “specialpressure –didEuropean not dueto understatus” the adopted itself was which – 1991) December (4 Minorities on Act Constitutional Croatian the that held Commission Badinter the Concretely, minorities. of status constitutional adequate of lack the by ECon the 6 April 1992. Commission’sthe after organize areferendum opinion to and consequently, itwas recognized discrimination in order to give a voice for minorities. for voice a give to order in discrimination See Weller (1992), supra fn. 6, p. 593. See 6, fn. Weller(1992), supra Germany declared itsintentionto recognize Croatia already on23 December 1991 adding it that would not See OpinionNo. 5on the Recognition of the Republic of Croatia by the EuropeanCommunity and its OpinionNo. 4onthe Recognition of the Socialist Republic of Bosnia-Herzegovina (SRBH) by the EC and p. 174. 247, fn. (2002), supra See Caplan Croatia’s Presidentpromised in a letter on 13 January amend1992 to its legislative about 5 Opinion inits concern its expressed Commission Badinter the Croatia, for As 253 Furthermore, Germany Furthermore, andSloveniarecognized Croatia already in 75 251 Bosnia-Herzegovina decided shortly 252 254 CEU eTD Collection the followingthe long-term effects of Guidelines:the observe nevertheless can one years, next in the violations rights massive minority to led which refused admission the of Croatia. it 1996, until and law minority Croatian the of amendment fundamental the on insisted Europe Yougoslavieles 101(3)RGDIPmembres par 680. de 663(1997),p. In: Européenne. l’Union 257 256 J. Greenwood), –C. Publications 1993. Lauterpacht 209-212. Grotius Limited, Cambridge, (E. p. on8 May amended Law Decemberlast 4 as 1992). ReproducedReports1991, 92International 209 in: (1993) 255 privileges. specific no but minorities, protecting requirements international law” which only guarantees basicthe non-discrimination and existence “lowered bar”It by the standard. accepting the “generalcorresponding alower to standard offeredby guarantees eventhe of Croatia becameif content they didsatisfy not Commission Guidelines’the Badinter the Thus, minorities”. of protection the regarding law international obligationsitnevertheless Draft, Carrington “satisfies underthe requirements the its of general with comply not does Croatia although that concludes Commission The view. earlier its fulfilledCroatia holds that criteria recognition an opinion the – which is exactly of opposite the authorities. local on control budgetary and political judicial, the by and area autonomous the of officials judicial and political the of nomination the in authorities central the of word final areaswaslimitedcertain to in thematerial jurisdiction of the scope of localthe by authorities, granted the autonomy the that claiming law the criticized it act, the in improvements positive about its non-conformity with the “special status” requirement. status” “special the with non-conformity its about reexaminedfor recognition Croatia’s request 4 Julyon 1992 andexpressed still a reservation Rahim Kherad:La reconnaissance des Etats issus de la dissolutionde la République socialiste fédérative de For the content of the standard of the customary law content of minority rights, see supra point 2.3.4. Observations Constitutional onCroatian Law (Comments on the Republic of Croatia's Constitutional Law of Although the EC inconsistently followed the Guidelines and later abandoned them abandoned later and Guidelines the followed inconsistently EC the Although After these critics, the final conclusion of the Badinter Commission seems surprising: it surprising: seems Commission Badinter the of conclusion final the critics, these After After the Croatian Constitutional Act was amended, the Badinter Commission Badinter the amended, was Act Constitutional Croatian the After 257 76 256 Nevertheless, Council the of 255 While welcoming the welcoming While CEU eTD Collection during theBosnian negotiations the on conflictsettlementand were supplemented by two willpointAs next the explain,States. werealso Carrington standards the into taken account successor the in protection minority improve to mechanism constraining political a as served Guidelines the but Croatia, of recognition the prevent not did Draft Carrington the of standard gainingStates successorthe independence inThe non-compliance 1991-1992. with the In sum, European the Community expressed very high minority rights requirements 260 p. 172. 247, fn. (2002), supra See government continuously Macedonian 2001. the withCaplan until 259 Hague/London/Boston. The Kluwerp. 68. Law 1999, International. Council of Europe.By Ed. KlabbersJan –Martti Koskenniemi – Olivier Ribbelink – Andreas Zimmermann. minorities.See State Practice Regarding State Succession Issues and of Recognition: ThePilot Project of the recognized Slovenia,Croatiawhen and took account into Council, the Badinter Commission’s Federal opinions on the Switzerland’s protection ofSlovenia. national and Croatia recognized they when Guidelines Community,e.g.Austria, or Finland Sweden, referred to the European Community Europeanand Community 258 See Hillgruber (1998), supra fn. 2, p. 502. See 2, fn. Hillgruber(1998), supra The AlbanianCommunity of Macedonia invoked also Draftthe Carrington asreference its in negotiations timewere the not membersat EvenStates which 172.; ofp. 247, fn. the European supra (2002), See Caplan - - - - They influenced admission the policy of Councilthe which, of Europe since 1993, The recognition criteria contributed in long term the stabilityto of new States. The recognition criteria served as promoters of recognition of “legalThe criteria servedas promoters andculture” qualified new They real a hadeffect legislationthe on by of ex-Yugoslav States politicalsuccessor below, point 3.2.3.3.). consistently of minority degree requiresa certain from (see candidateprotection States international instruments as“international standards”. Draft. in with minorityprepared accordance the rights requirements of Carrington the were Constitution Macedonian the and 1991 December 23 of Constitution Slovenian Constitutional Croatian was achievedAct the by andsimilarly, ECpressure the the commonthe action of ECmemberthe to due pressure, States. 259 77 260 258 The amendment of vis-à-vis CEU eTD Collection 261 of human rights “the highest level of internationally recognized rights, as set out in out set as rights, recognized internationally of level highest “the humanrights of from the EC’s minority standards the finallyto adopted Dayton Agreement. Bosnian Croats. the and Serbs Bosnian the Government, Bosnian the between agreement tripartite by a conflict the Bosnian settle to agreementdevoted a draft CyrusOwen presented Vance and Lord internationalof the reaction community Yugoslav the crisis. to YugoslaviaConference theFormer which on (ICFY) became of one mostthe significant Conference YugoslaviaThe EC on wasreplaced in August by 1992 Internationalthe Balkan war in 1995 (point3.2.2.2.). Vance-Owen and in Plan the Dayton 1992(point proposed 3.2.2.1.) Agreement ending the settlement indrafts theBalkanamong war, can whichdocuments be highlighted: two the conflict international of number a influenced standards minority Community’s European The for RegionalCharter and Minority Languages. meanwhile international Convention conventions, Framework the adopted and theEuropean See UNDoc. S/24795(11November1992). 3.2.2. Firstly, it has few substantial provisions on minority rights. The draft requires assource requires Firstly, minority has few draft it on provisions The substantial rights. of Co-Chairmenthe ICFY, the of the framework In the of Steeringthe Committee, 3.2.2.1. minority protection Conflict settlement inBosnia-Herzegovina: international standards of 261 The Vance-Oven Plan is significant since it indicates the organic transition organic the indicates it since significant is Plan Vance-Oven The The Vance-Owen Plan The Vance-Owen 78 CEU eTD Collection State’s positive obligations but codifies “minimum standards”. “minimum codifies but obligations positive State’s the of its end provisions Cold the However, of War. usually specify not do challenges vaguelyor the express the to minorities protecting reactions first the of one was Europe of Council Thisrecommendation oftheParliamentary latter be respected. is to required Assembly of the instruments: instead of Venicethe Commission’s RecommendationProposal, the 1134 (1990) in the difference little is there Draft, Carrington the to Compared Recommendation 1134(1990)of Parliamentarythe Assembly of Councilthe of Europe. partyAmong instruments, these conferenceincorporate. the requiredBosnia-Herzegovina be to shall to Bosnia-Herzegovina of constitution the which documents the rights human international ICCPR, thewith a complaint procedure, but of whichHerzegovina” and opinions Bosnia are not binding. for Rights Human on Commission CSCE“International establish to intends Plan Vance-Owen the mechanism, monitoring the for As instruments,life). public of levels all at members minority of representation the for required is action (affirmative ICCPR the of 27 Art. under requirement in than (“special Draft instricter or case Carrington the of practicestatus”) the less is a life public of levels all at groups ethnic the of representation the the Thus, alternative. 1992 an as discrimination minimumnon of rule the – phrase the of part second by the attenuated was which obligation positive a with UNauthorities, public in minorities of representation Declaration and the discrimination).” non- strict minimum, the at (or, services other and police civil, provincial and central various in the as well as bodies decision-making in governmental balance group maintain to obligation Herzegovina, Section VI. Section Herzegovina, 262 instruments” listed below. listed instruments” UN Doc.November S/24795(11 forProposed VII.: Bosniastructure 1992), Annex constitutional and Secondly,like Vance-Owen the Draft, Plan Carrington the enumerates nineteen 263 It proves that the International Conference expressed the need of the of need the expressed Conference International the that proves It 262 It highlights “group, especially ‘minority’ rights, including rights, ‘minority’ especially “group, highlights It 79 264 corpus of minority rights minority of CEU eTD Collection In: 90 AJIL 301 (1996) [hereinafter: Szasz (1996)], p. 302. (1996)], p. Szasz 90AJIL In: 301 (1996) [hereinafter: 265 264 263 Agreement. later internationalthe Bosnian for the conflictproposals settlementlike the Dayton a nationaland referendum in Bosnia-Herzegovina,its provisions but nevertheless influenced that underto the Carrington Draft.Finally, the Plan was refused by the Bosnian Serb Assembly its humanitarian rights –dueto conflictsettlement nature – , it requires a standard comparable State. the of actions affirmative necessitate rights minority most Committee, Rights Human that of the Carringtonto Draft similar and dueis very theto active interpretation right of minority Art. 27 of of the ICCPR by the catalog the Nevertheless, Proposal). Commission’s (Venice minority the by inhabited areas in language minority the learn to right the and Draft Carrington missing Carrington the Draftrequired: political that the type rights (“special of the status”) the standard of the Carrington Draft, one can conclude that two important elements are Herzegovina, ofBosnia Federation the and Herzegovina and the Republika Srpska and applies This Agreement Humanon Rights the Republic wasconcludedbetween of Bosnia and of Bosnia-Herzegovina,containedbut an“Agreement Humanon Rights” in oneof its annexes. peace ending Balkan the war. Agreement) in wasdrafted largeby part internationalthe community and concluded as the The General AgreementFramework in for Peace Bosnia and Herzegovina (Dayton See P.Szasz: TheProtection C. of HumanRights Dayton/Paris the Through Peace Agreement on Bosnia. Ibid, Annex VII, Art. VI.B.3. Ibid, Section VI., par. A.2 (b). In sum, although the Vance-Owen Plan has few substantial provisions on minority on provisions substantial hasfew Plan Vance-Owen the although sum, In to it compares and instruments in these enshrined rights minority the combines one If 3.2.2.2. 265 The Dayton AgreementThe Dayton 266 It not only not defined It the constitutional and boundariesstructure 80 CEU eTD Collection 268 267 SlyeLaw 461. 459 (1996)[hereinafter: (1996)], p. International 266 were adopted: international because two sinceof Carrington Draft, the conventions proposal the protection the lessen not did instruments international of number the of narrowing This Declaration). binding instruments (OSCEdocuments, Recommendation the the 1992 1134 or UN non- the abandoned Agreement Dayton the of framers the Apparently, Minorities. National for Regional or Minority Languages and the Framework Convention for the Protection of Charter conventions in European of enumerated ICCPR,the among agreement, the the others internationalrefers instead to conventions. inpeace settlementminorityprovide Bosnia-Herzegovina for not anddoes rights in details, but the at aimed also Agreement Dayton the Plan, Vance-Owen the Like jurisdiction. their within Ibid, Art. 25, 26. See Explanatory Report of the Framework Convention for the Protection of National Minorities, par.11. See R. C.Slye: TheDayton Peace Agreement: Constitutionalism Ethnicity. and In:21Yale Journal of - Namely, the parties to the peace treaty shall peacetreaty Namely,the of to parties certain internationalensure respect the the Committee. supervision the Ministerswhich is for is responsible assisted by an Advisory of Committee the reports, periodic submit to obligation an is there soft: similarly is mechanism implementation the provisions, its of most As obligations. positive its provisions Therefore, necessary” canbe considered aslacking etc.). well-defined conditions the promote to “undertake possible”, as far (“as clauses flexibility softlyrightsand are positive worded measures, if any, areusually followedMinority by obligations. their defining in appreciation of margin wide a parties State the provisions”: “programme-type of form the in thesis, this of purpose the the Framework Convention, which codified all minority rights identified above for above identified rights minority all codified which Convention, Framework the 268 Nevertheless, the Framework Convention is significant since it codified it since significant is Convention Framework the Nevertheless, 81 267 it leaves for CEU eTD Collection 271 http://www.ohr.int/dpa/default.asp?content_id=374 Representative: special EU and Representative Office of High of webthe site the See Two. 270 names in minority language, see Art. 11. inscriptionsand publicly in minority language underand, restricted conditions, to the right use local andstreet 269 intolerance. example The even Dayton Agreement of the that ifshows more or standards the and conflicts ethnic new to maybe giving birth Bosnia-Herzegovina, of Constitution in the areas” pure ethnically and “authoritarian approved and rights minority of implementation ethnically determined. of People, an House the electedupper chamber in asdelegate the Federation to which is Bosniacs discriminated inare or Srpska) Croats in and theirpolitical a rights, Serb e.g. cannot be Federation in the (Serbs entity the of members minority where structure constitutional rights. minority for respect the ensuring mechanism monitoring AgreementDayton followed in and its Carrington standards substance provided the for the established: Ombudsmanthe and Human the Rights Chamber. Federation and Serbs in bodiesFurthermore, Srpska). two monitoring human rights were has where eachethnicits entity group andwhere itdominates Bosniacsstructure (Croats in the of inBosnia-Herzegovina, theconstitution incorporated since itprovided afederal for requirements The namely of Draft, Carrington the “specialthe can behave saidstatus” been to See Slyep. 464. 266, fn. (1996), supra Chapter 1995), December (14 Herzegovina and Bosnia in Peace for Agreement Framework SeeGeneral to E.g.the right use one’s the minority name in language its and official recognition, display the right signs - Nevertheless,Slye criticizes Dayton the Agreementclaiming a itcreated that enshrined in other instruments. in other enshrined been not had which rights declaring sometimes rights, minority of catalog broad a possibilities for States – linguistic rights of minority members in details. in members minority of rights linguistic – States for possibilities itis alsosignificantHowever, “standard”. asa its scope as defines – at least as pick among andchoose its provisions, to parties this thesis therefore cannot evaluate the European Charter for Regional for Charter Minority or European the Languages,which allows States 271 Thus, it seems that the international community did not care of the 269 82 270 It is commendable that the CEU eTD Collection (admission organizations) international criteria and for the of European supervision (Kosovo). exampleswilldecade brought point recent the conditionality both for the prove, mechanism along criteria)recognition term international or the (as supervision is necessary. As nextthe that the formal requirement of the respect for international minority rights standards does not sufficedoes in itselfprotect to standards rights minority international for respect the of requirement formal the that Nevertheless, Draft. similar Carrington case the the of of Bosnia-Herzegovinathose proves to a newly Bosnia-Herzegovina State, andcreated imposed standardswhich are approximately lacking. is solidarity internal and supervision if international minorities of protection the guarantee itself in not does legally standardsless Carrington the are corresponding to imposed it on a successor State, minimum The standardsforBosnia-Herzegovina Appendices) (see standard ICCPR - ICCPR In sum, the international community laid emphasis on minority protection obligations of obligations protection minority on emphasis laid community international the sum, In 2 2 2 Carrington Draft Carrington standards Summed 3 2 2 3 2 2 3 3 2 3 2 de facto Vance-Owen the rights of minorities: either some form of conditionality of form some either minorities: of rights the Plan 2 2 2 3 2 2 3 3 2 2 2 83 Agreement Dayton 3 2 2 3 2 2 3 3 2 3 2 Non-discrimination law before Equality rights Religious institutions educational cultural, maintain and establish to right The private life in language minority use to Right language minority in press to Access language minority the in education to right The before administrative authorities language minority use to right The courts before language minority use to Right Other privileges International guarantee mechanism CEU eTD Collection Agreement,includes substantial minority rights provisions, whereas referencethe to representatives of of Commission.representatives the considerably influenced andthe drafting its the of negotiator agreementthe through aiming establishmentthe at of a certain Duringautonomy conference, the for EU Kosovo. the in 1998andled Rambouilletstarted the October to Group Contact Agreement, adocument Albanian Belgrade Kosovar between andthe conflict community with mediationthe Kosovo of an international the of settlement the about negotiations The 1998. in community international the of intervention the to led Albanians by Belgrade Kosovo the of oppression The second wave of independence. this of reaction a as community international the of requirements rights minority the summarize seem have Council andthe certain to Europe of EU success. Hereinafter, thesisthe will the of incentives the and in Kosovo administration international the instead, but recognition, The international 3.2.3.2.). community didrequire not any minority rights standards for the dissolutionthe and to 3.2.3.1.) (point Kosovoof Unionof State the Serbia-Montenegro(point conflictwhich internationalthe led to administration declaration the andof latter independence remaining Kosovar Albansthe of oppression the FRY: by ahumanitarianBelgrade provoked The period following signature the Daytonthe of Agreement did not bring peace for the 3.2.3. The Rambouillet Vance-Owenthe to Plan Dayton Agreement,as opposed the or 3.2.3.1. independence: the2000s Reactions of the international community second tothe waveof The standards required asareaction crisis oftheKosovo 272 84 CEU eTD Collection EU in the Implementation Mission or the Ombudsman with the complaint mechanism can be can mechanism complaint the with Ombudsman the or Mission Implementation the in EU members. minority the of sites historical the symbols, national use to and Albanian inscription), Serbian the to addition (in language minority the in streets and localities of inscriptions to right communities’ national the privileges”: “other by rights similarly necessitate State’s the action. USA, see at: [hereinafter: Rambouillet Agreement], web1. The VII, par. 1, Art. Chapter site of the State Department of the 273 248. 272 provide publicto duty State funds, the with linked is institutions cultural and religious establish to right the action: defined affirmative require provisions rights minority its of some Nevertheless, courts. and authorities with communication in the language minority use to right the mention not does It 1990s. early the in ex-Yugoslav imposed on standards States asthe high successor as minority standards rights require not do provisions substantial its and crisis humanitarian a of settlement political the at “internationalthese standards”. define whichcould conventions rights minority international mention not does it but ECHR, 277 276 275 274 […]” standards international with in accordance […] rights additional lave shall members their and communities “national that provides It missing. is instruments rights minority international Rambouillet Agreement. InterimAgreement for Peace Self-Governmentand inKosovo, Constitution Rambouillet See Weller: Marc Affairs The Conference on211 Kosovo.(1999), p. (2) International 75 In: Ibid, Constitution, Art. VII. 5(d). Art. Ibid,Constitution, VII. 4 (c). VII. 4(a)(v)-(vii),Art. VII. 4(a)(v)-(vii),Art. VII. 5(d),Art. Ibid,Art. See Rambouillet Agreement ,supra fn. 273, Art. VII. 5 (f). p. 528. 119, fn. See(1999), supra Ringelheim 273 As for the implementation and monitoring mechanism, the role of the OSCE and the and OSCE the of role the mechanism, monitoring and implementation the for As As for its material minority rights provisions, the Rambouillet Agreement aimed mainly aimed Agreement Rambouillet the provisions, rights minority material its for As and refers to its commitment to OSCE principles and the direct applicability of the of applicability direct the and principles OSCE to commitment its to refers and 279 http://www.state.gov/www/regions/eur/ksvo_rambouillet_text.html 277 the privilege of respect for the family law of the minority, the protection of protection the minority, the of law family the for respect of privilege the 274 275 278 “other privileges” like the preservation of historical sites historical of preservation the like privileges” “other and the right of the national community to tax its 276 Its other strong point is the extension of minority 85 (30.10.2009) CEU eTD Collection the UNMIK quickly adopted minority rights provisions which detail all the rights classified by classified rights the all detail which provisions rights minority adopted quickly UNMIK the implementation, their for As party. State not was FRY the time that at which to instruments apply to authorities these minority Kosovo remarkable UNMIKexpected the that rights monitoring Special the Secretary-General whose Representativethe of is responsible.for Kosovo in applicable directly conventions these declared Framework Constitutional Regional Minority or Languages aswell. Constitutional Framework Framework addedthe Convention for Charter and European the shall particularly respect. in Kosovo functions public exercising all persons that conventions humanrights international InterimNations United called Kosovo in administration international an Mission(1999) 1244 Resolution in Kosovo (UNMIK).Kosovo. in intervention military In 1999,the to inled 1999 inKosovo atrocities continuous the and community international the a with regulation of the UNMIK detailed the 283 282 281 280 279 278 widethe privileges”. of “other scope defined affirmative cultural the and religious related to rights action of minority members and the of because instrument significant a is nevertheless it standards, mentioned above previous whose decisionswhose binding arewithout reports force. asan“internationallyunderstood supervised” implementation with a complaint but procedure, Ibid, Art. 3.3.; Art. 4.6. See UNMIK/REG/2001/29 (15May 3.2. No.2001), Regulation Art. 2001/9, See UNMIK/REG/1999/24 (12December1.3. No.1999), Regulation Art. 1999/24, Ibid, Implementation I,Art. I.1., II.1. Ibid, Constitution, Art.VII. 4(c). VII. 4(a)(v)-(vii). Art. Ibid,Constitution, The Agreement was finally rejected by Miloševi by rejected finally was Agreement The the reach not does Agreement Rambouillet the of standard rights minority the Although As a result of the NATO intervention, the Security Council established byits established Council Security the intervention, NATO the of result a As 281 Among these the ICCPRwastreaties, listed and in 2001, the 86 282 Furthermore, the provisionally applicable provisionally the Furthermore, 280 ü whose unwillingness to cooperate to unwillingness whose 283 It is It CEU eTD Collection BelgradeandRussia because independence of the impliedly by Kosovo guaranteed to draft.the Draft. Carrington of the and that Ahtisaari of the obligations,standard the Plan isof UNMIKregulationsthe comparable that to conflict the of settlement,implementation the supervising bodies international of cooperation a for provides bodies. public in representation minority’s associational life of the minority, the of life associational obligations related to non-discrimination, to related obligations positive requires expressly also but thesis, this by identified rights minority all for provides 292 291 290 289 288 287 286 Settlement [hereinafter: Plan]. Ahtisaari of Kosovo. Assembly by the adopted 285 oflanguages use the on Law of the promulgation 284 Regional for Charter and Minority Languages. applicabilityConvention European and Framework the respectfor andthe ICCPR the of the presented a draft on finalthe on drafta (Ahtisaaripresented of Kosovo status Plan). standards. high similarly followed Plan Ahtisaari the proposal, international later a Furthermore, UNMIK regulations are very high and correspondthe requirementsto of the Carrington Draft. especially linguisticthe rights entail clear affirmative reached by standard the action. Thus, the this thesis. Ibid, Annex II, Art. 4. Ibid, Annex II, Art. 3.1. e)-f). Ibid, Annex II, Art. 2.1., Art. 2.5., Art. 3.1. n). Ibid, Annex II, Art. 2.5.; Annex V. 2.3-4. II,Art. Ibid,Annex Ibid, Annex II, Art. 2.2., 2.3. Ibid, Annex I, Art. 2.1.; Annex II., Art. 2.2. See UN Doc. 2007), Comprehensive Proposal (26March for S/2007/168/Add.1 Kosovothe Status 4; See Ibid,also Art. UNMIK/REG/2006/51 October (20 2006), RegulationNo. onthe 2006/51 Whereas both the EU and the US backed the Ahtisaari Plan, it was not accepted by In 2007, the Specialthe Representative of In 2007, Ahtisaari Secretary-General,the Martti 284 The UNMIK regulations specify the positive obligations of Kosovar authorities, Kosovar of obligations positive the specify regulations UNMIK The 293 but no specializedno but human rights bodies. Due its to defined positive 290 the communication with public authorities public with communication the 287 292 87 equality, As for the guarantee mechanism, As guarantee for the draft the 286 Moreover, the Ahtisaari Plan not only not Plan Ahtisaari the Moreover, 288 religious rights, religious 285 It confirms the direct 289 cultural cultural and 291 and the and CEU eTD Collection 1f0860013475/eur700112003en.html http://www.amnesty.org/fr/library/asset/EUR70/011/2003/fr/2b7447bd-d702-11dd-b0cc- (Kosovo/Kosova): Minority communities: fundamentaldenied. rights Amnesty seeInternational, at: http://www.kushtetutakosoves.info/?cid=2,250 See Kosovo's Constitution, Art.22,58(2); Art.59(detailed minority Seerights). at: Europeanthe for Charter Regional orMinority Languages shall also be taken account, without direct effect. 294 international military presence, see ibid, Annex IX-XI. 293 www.minorityrights.org/download.php?id=158 Minority Rights in Kosovo under International Rule. Minority Rights Group International, 2006. See at: 295 rights, Kosovo seemsrespect to the standardminority required bydetailing the Ahtisaari Plan. regulations UNMIK the and administration internationalized of decade lower of students than normally stipulated). threshold a have shall language minority in education (e.g. State the of obligations positive the specifies sometimes but Plan, Ahtisaari the of wording the follow to only not seems even in that lackbenoted by of such recognition adopted Kosovo criteria, Constitution the must It Draft. Carrington the of standards the to nature constraining similar in its seems which havewould been recommendablebase democratic recognition to criteria it Ahtisaari on the Plan Guidelines, Recognition 1991 the to similarly However, standards. rights minority any of requiringwithout implementation the recognized its statehood, States of European two-third After unilateral the declaration of independence by 17 Februaryon Kosovo USandthe 2008, The ConstitutionThe the retains direct effect of these instruments (ECHR, ICCPR, Framework Convention) and Namely, CivilInternational the Representative, European the Security Defenceand Policy mission and the Although recent human rights reports highlight thatthese reportsrights highlight Althoughrecent rights exist human only on paper. See Clive Baldwin: (27.10.2009) (10.11.2009). (25.10.2009); See also Montenegro (25.10.2009); Serbia and 294 88 At least on the level of positive law, due to a 295 CEU eTD Collection successionto the treaties of its predecessorState, suchlike to the Framework Convention. See First Report of accessionfor open foris non-member which States. Afterhaving admitted to Convention the Council of Framework Europe, the to Montenegro party acceded notified an as its Montenegro acknowledged Ministers 296 the Framework Convention. Frameworkthe Union State of Serbiathe such as to and treaties the Montenegro, to succeeded Montenegro were ensured in After its proclamationMontenegro. of independenceconditions 3 June on 2006, democratic basic that admitted be must it However, fulfill. to criteria rights minority quicklyRussia States andother without requiringrecognized Montenegro any democratic or gaining independence in 1990s,wasapeacefulthe process. four ex-Yugoslav other of the that to republicsThe independenceas opposed Montenegro, of Technically, the pre-accession in period before the admissionto the Council of Europe, the Committee of minimum standard ICCPR - ICCPR 2 2 2 After referendum the itson independence held 21 May on EU,the the US, 2006, 3.2.3.2. The standards for Kosovo (See appendices) (See Kosovo for standards The Carrington standards Summed Draft 3 2 2 3 2 2 3 3 2 3 2 Montenegro The standards required with respect of the independence of Rambouillet Agreement The 2 2 3 3 2 2 2 1 1 3 2 296 After its recognition, the EU and the Council of Europe of Council the and EU the recognition, its After Regulations UNMIK 2 2 2 2 2 3 3 3 3 3 2 Ahtisaari Plan 3 3 3 3 2 3 2 3 3 3 2 89 Constitution Kosovo 2 3 3 3 2 3 3 3 3 3 1 Non-discrimination law before Equality rights Religious institutions educational cultural, maintain and establish to right The private life in language minority use to Right language minority in press to Access language minority the in education to right The before administrative authorities language minority use to right The courts before language minority use to Right Other privileges International guarantee mechanism CEU eTD Collection Minority Right in Accession Countries? In: 22 East European Politics and SocietiesPolitics Accession and European Minority 177.; in 22East Right 171 (2008),p. Countries? In: Rechel:Bernd Has EU’s 167.; What Limited the Impact 129, p. on fn. Europe.supra See (2004), Pentassuglia Roma minority sometimesand theRecommendation1201 of the Parliamentary Assembly of the Council of StatesRoma –in having a and minority – the adoption of governmental programs for the integration of the requires theadoptionof Councilthe Directive 2000/43 on the non-discrimination, the Framework Convention 297 Councilof ofMinorities, Europe Doc.National ACFC/SR(2007)002, 27July 4. 2007, p. Republicthe of Montenegro pursuant toArticle 1 25 paragraph of the Framework convention for the Protection to crystallize to awell defined started of minority catalog have rights which were classified by this thesis.standards rights minority detailed The rights. minority to community international rights instrumentsminority in 1990s. the detailed of proliferation the to contributed which States from obligations positive 27 in an Art. activistinterpret manner,Rights to Committeerequiring has started concrete republics,concerned succeeded by and two the Croatia Slovenia. Human Furthermore, the Osimoa bilateralunder the whichTreaty, scope territorial agreementof restricted was protection minority of duties detailed assumed Yugoslavia Nevertheless, obligations. positive expressed only27 ICCPRwasthe of the without ensure, allrequirement had parties to that State Art. of standard minimalist corresponding the and elements law Customary treaties. rights after DuringWar, wereno Colddetailedthe 1945. there minority rights catalog in continuation universalits human refused community international the that regrettable is it actions, positive including rights minority of range wide a imposed Saint-Germain of treaty the Although 3.3. conditionality. of form new a constitutes which incentive of form another criteria, admission their through byexercised Montenegro on requiring apressure acertain standard of minority protection The Council of Europe requires the respect for Recommendation 1201 as an admission criteria. The EU The criteria. admission an as 1201 Recommendation for respect the requires of Europe Council The It was principallyIt dissolutionthe of SFRYwhichthe entailed of the attention the Conclusion 297 90 CEU eTD Collection itself, only if it is followed by national legislation. national by followed is ifit only in itself, suffice not does standards international of application immediate the However, minorities. internationalindicatesthe supervision that longthe term can stabilization to contribute of Kosovo of case Finally, the Kosovo. on imposed standards the mention can one development, and thesis by this classified elements rights even minority special all for provide instruments international more and iscleardecades aminimalistthe development to compared examined the standard: more of them defineconvention. this to refer settlements dispute most since positive rights minority of standard” minimum “European StateRegional Minority Conventionseemsor Frameworkthe hasLanguages. It that became a obligations. for Charter European minority the alsoto Convention or Framework the referringrights, to significantdevelopmentssince current the of they internationalincorporated law regarding to As a top obligations,internationaldetailedreferring without State instruments. to Nevertheless, they are although of rights, minority for provided thisalso Agreement) Rambouillet Agreement, Dayton international instruments during produced dispute these settlements (Vance-Owen Plan, and drafts The settlement. political the in community international the of involvement in standards Carrington the a conditionality mechanism. and Draft Carrington more wasthe efficientlyStates successor the when ECdecidedthe put to The dynamic required by standards the international of the community in recenttwo the The humanitarian conflicts, Balkancrisis, the War Kosovo andthe ledthe to in rights minority of improvement the to contributed undoubtedly which step first The 91 CEU eTD Collection

ICCPR - minimum standard International standards imposed on

Summed CarringtonMinorities Draft standards Treaty

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Osimo Treaty 2 2 2 successor States successor The Framework Convention 2 2 3 3 2 2 3 0 1 2 3

The Rambouillet Agreement 2 3 0 3 2 2 3 3 3 3 3 3 2 2 3 2 2 3 3 2 3 2

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Dayton Agreement 2 2 2 2 2 2 2 2 2 2 1

UNMIK Regulations 2 2 3 3 2 2 2 1 1 3 2 92 2 2 2 3 2 2 3 3 2 2 2

Ahtisaari Plan 3 2 2 3 2 2 3 3 2 3 2 2 2 2 2 2 3 3 3 3 3 2 3 3 3 3 2 3 2 3 3 3 2 Equality Equality before law rights Religious institutions educational cultural, and maintain toestablish The right life touseminority private language in Right minority topressin language Access language theminority toeducationin The right authorities administrative before touseminority language The right courts touseminority language before Right privileges Other guaranteemechanism International Non-discrimination CEU eTD Collection successor States. TheMinoritiesStates. successor Treaty a detailedof 1919, minority rights catalog was by undertaken SFRYandthe imposedprotection by internationalthe community itson community. imposed by or either on itby undertaken by treaties guaranteed State, the internationalthe are protection minority of elements special The members. minority to ensured privileges special essence the cover of rulesnot minority customary these do existence.However, rights,the to minority the of right the and law the before equality non-discrimination, for provides which law, customary on based rights, minority of scope minimum a is there obligation, aswell State as of internationalthe predecessor community.Even in lack of any treaty dissolutions or separations. Their human the of its predecessor. rights treaties to succeeds protection is in the isif independent the generallyitKosovo, is its statehood that expected automaticallyaccepted, interest of both regional customary consistentlyruleRecently, in the1990s. Montenegro the followed this rule and successor and the such a rule and succeeded especiallybecome rule. customary Central States a European and Eastern feltbe bound byto legal succession inof human State respect automatic Especially rights treaties. prevention the of any for support isthere astrong Oneproved, AsChapter wasparty. State predecessor the by guaranteed humanthe protection the which to entitledrightsthey to are treaties protection, general a As protection. without minorities leave cannot separation or dissolution A vacuum Consequently, Chapter Three examined what were the obligations of minority of obligations the were what examined Three Chapter Consequently, As Chapter Two explained, minority rights are particularly threaten at the time of and the stability andthe humanof rights necessitate such a rule which is developing to ipso jure Conclusions of thethesis to the quasi totality of human rights treaties, constituting a constituting treaties, rights human of totality quasi the to 93 CEU eTD Collection 1. and how should itrequire this standard? States Successor from require community international the should standard rights minority minority basic answer two decades could questions: recent whatrights instruments. two The wording still remains vague awide andleaves liberty. State for the article’s the actions, State positive defined clearly rights minority special many in requiring way, activist in an it interprets Committee Rights Human the Although obligation. international andSlovenia. Finally, third the main ICCPRconstituted the of 27 of Yugoslavia’sArt. source inCroatia only apply to continued standards, high similarly creating while Treaty, Osimo The andisabandoned 1945 considered after by this thesis as a historical bethreshold reached. to the positive duties of the State and hopefully establishing a petition mechanism before an before mechanism petition a establishing hopefully and State the of duties positive the specifying while but catalog, this on based be should instruments rights minority future that recommended is It obligations. positive defining clearly without but thesis, this by identified rights minority all for provides which standard” minimum “European of kind a became minorityseemsin FrameworkIt that Convention the recentdecade, the rightscatalog. Minorities the threshold of andreach the led acrystallization Treaty to of a detailed Rambouillet). All of these(Dayton, standards exceed by farsettlements the minimalist crisis humanitarian thresholdof of Art. 27, often framework the in or criteria recognition of SFRYthe community eitherthe States through successor the imposed on standards these international The convention. rights human universal in no but Committee, Rights and set defined standardssucceed automaticallyhuman to rights to State of treaties predecessor the States successor whichrequired It community. couldinternational the of onlymechanism settlement be dispute foundthe involved before in the practiceThe ethnic during tensionsstandard. dissolution andatrocities the of SFRYprocess the of the Human As for the first question, there is a clear trend of crystallization and heightening of the The dissolution of the SFRY led to the adoption and multiplication of international of multiplication and adoption the to led SFRY the of dissolution The 94 CEU eTD Collection decades which would contribute to theirdecades which stability to would contribute movements.and separatist prevent countries should equallyand implement adopt minoritythe rights standards of recent the two ethniccan prevent but tensions in all democraciesStates, Western Thus, and developingStates. successor of legitimacy and stability the to only not contribute rights minority granted Finally, conclusionsthe thesis the of can be broadened by assumingdetailed that and liberally 2. to improve the situation of minorities in Kosovo. in minorities of situation the improve to especially iffurther national leadsitlaws to implementing This standards. these is expected itresolve can ethnic that cannot have canhope one tensions, long term positive effects, standards international of application immediate the Although provisions. rights minority adopt them made directly which Kosovo) (Bosnia-Herzegovina, supervision international under placed often were community, international the to involvement the to led tensions comply to withminority recent States rights standards. new motivate could which incentive an – Europe of Council the and EU the of procedure admission in the exist to continues conditionality the that commendable is it Nevertheless, inagree suchacommon policycould not successions.in of recent State respect comply to with international EU the States is make that regrettable successor It standards. to means political efficient an is expectations, own its followed EC the inconsistently how matter no conditionality, recognition of practice The conditionality. the is first The recently. on methodthe question second Asthe of mechanism for standard setting, two were applied rights asasubjectbelonging their sovereign reserved competences. to such amechanism Treaties, be realized, couldmainly not keep minoritybecause States whose decisionsinternational arebindingcourt Since lapse the States. of the on Minorities In addition, States concerned by humanitarian conflicts, where the gravity of ethnic of gravity the where conflicts, by humanitarian concerned States addition, In 95 CEU eTD Collection B) A) 17. 16. 15. 14. 13. 12. 11. 10. 9. 8. 7. 6. 5. 4. 3. 2. 1. Evaluation of the minority rights standards of each cited international instruments: international cited each of standards rights minority the of Evaluation humanto rights treaties I-II. become parties to successorStates Table Central-European of practice the the on Recommendation 1201 (1993) Kosovo’s Constitution regulations UNMIK Ahtisaari Plan RambouilletAgreement Dayton Agreement Convention Framework The Vance-Owen Plan Recommendation 1134 (1990) The summed Carrington Draftstandard Commission) Venice the of (Proposal Law through Democracy for Commission Proposal for a Convention for the Protection of Minorities of the European The 1992UNDeclaration Draft Carrington the of provisions substantial The OSCE documents The OsimoTreaty The ICCPR The Minorities Treaty Appendices 96 306 305 304 303 302 301 300 299 298 Source: UN Treaty Collection, See at: International Convention againstApartheid in Sports, New York, 10December 1985 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984 Convention on the Elimination of All Forms of Discrimination againstWomen,New York, 18December 1979 International Convention on the Suppression Punishment and of the Crime of Apartheid, New York, 30November 1973 Convention onnon-applicability the of statutory limitations to war crimes and crimes against humanity, New York, 26November 1968 International Covenant on Civil andPolitical Rights, New York, 16December 1966 International Covenant on Economic, Social andCultural Rights, New York, 16December 1966 International Convention onElimination the of All Forms of Racial Discrimination,New York, 7March 1966 Convention on the Prevention Punishment and of the Crime of Genocide, New York, 9December 1948 Modalities: The dates indicate the date of the notification of succession not and thestarting date of the binding force of the treaty obligations inrespect of the successor State. Successor State State Successor zc eulk 22 Czech Feb Republik A) The FYROM The Herzegovina Montenegro Treaty Slovenia Slovakia Bosnia- Croatia Serbia Table onthepractice oftheCentral-European successor tobecomeStates parties tohumanrights treaties I. ceso; d – succession a – accession; ĺ

CEU eTD Collection Ļ http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en 12 Mar 28 May 29 Dec 1994 d 1993 d 1992 d 1992 d 2001 a 2006 d 1993 d 1992 d 12 Oct 23 Oct 18 Jan GC 6 Jul 298 CERD 28 May 12 Mar 1994 d 1993 d 1992 d 2001 d 2006 d 1993 d 1992 d 1993 d 22 Feb 12 Oct 23 Oct 18 Jan 16 Jul 6 Jul 299 ICESCR 6 Jul1992 28 May 12 Mar 1994 d 1992 d 1993 d 2006 d 2001 d 1993 d 1993 d 22 Feb 12 Oct 23 Oct 18 Jan 1 Sep 1 300 d ICCPR 28 May 12 Mar 1994 d 1993 d 1992 d 2001 d 2006 d 1992 d 1993 d 1993 d 12 Oct 23 Oct 22 Feb 18 Jan 1 Sep 1 6 Jul 301 97 CSLWC 6 Jul1992 28 May 12 Mar 1993 d 1994 d 1992 d 2006 d 2001 d 1993 d 1993 d 12 Oct 23 Oct 22 Feb 18 Jan 1 Sep 1 302 d 6 Jul1992 ICSPCA 28 May (02.06.2009) 12 Mar 1993 d 1992 d 2006 d 1994 d 2001 d 1993 d 1993 d 22 Feb 12 Oct 23 Oct 18 Jan 1 Sep 1 303 d 1 Sep 1993 6 Jul1992 CEDAW 28 May 12 Mar 1993 d 1994 d 2006 d 2001 d 1993 d 23 Oct 22 Feb 18 Jan 9 Sept 1992 304 d d 28 May CAT 12 Mar 12 Dec 1993 d 1994 d 2006 d 1992 d 1993 a 2001 d 1993 d 1993 d 23 Oct 12 Oct 22 Feb 16 Jul 1 Sep 1 305 ICAS 12 Mar 2006 d 1992 d 2001 d 1993 d 1993 d 22 Feb 23 Oct 12 Oct 1 Sep 1 ------306 313 312 311 310 309 http://treaties.un.org/Pages/ViewDetailsIII.aspx?&src=UNTSONLINE&id=366&chapter=18&Temp=mtdsg3&lang=en 308 307 Source: UN Treaty Collection, See at: Czechoslovakia did not ratify the Convention to relating the Status of Stateless Persons. Czechoslovakia did not ratify the Convention to relating the Status of Stateless Persons. Convention relating to the Status of Refugees, Geneva, 28 July 1951 Convention to relating the Status of Stateless Persons, New York, 28September 1954 Convention for the Suppression of the Traffic in Persons andof the Exploitation of the Prostitution of Others, Lake Success, New York, 21 March 1950 Supplementary Convention on the Abolition of Slavery, theSlave Trade, andInstitutions andPractices Similar to Slavery, Geneva, 7September Convention 1956, see: on the Rights of the Child, New York, 20 November 1989 Modalities: The dates indicate the date of the notification of succession not and thestarting date of the binding force of the treaty obligations inrespect of the successor State. Table onthepractice oftheCentral-European successor tobecomeStates parties tohumanrights treaties II. Bosnia-Herzegovina Successor State State Successor Czech RepublikCzech The FYROM The Montenegro Treaty Slovenia Slovakia Croatia Serbia ceso; d – succession a – accession; ĺ

CEU eTD Collection Ļ http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en 2 Dec 1993 d 6 Jul1992d 28 May 1993 d 12 Mar 2001 d 12 Mar 22 Feb 1993 d 12 Oct 1992d 23 Oct 2006d 1 Sep 1993d CC 307 28 May 1993 d 12 Mar 2001 d 12 Mar 22 Feb 1993 d 12 Oct 1992d 23 Oct 2006d 18 Jan 1994 d 18 Jan 1 Sep 1993d 6 Jul1992d SC 308 98 28 May 1993 d 12 Mar 2001 d 12 Mar 30 Dec 1993 d 12 Oct 1992d 23 Oct 2006d 18 Jan 1994 d 18 Jan 1 Sep 1993d 6 jul 1992d CSTP 309 (02.06.2009) 19 Jul2004a 3 Apr 2000 a 3 Apr 12 Mar 2001 d 12 Mar 12 Oct 1992d 23 Oct 2006d 18 Jan 1994 d 18 Jan 1 Sep 1993d 6 jul 1992d CSSP 310 313 312 11 May 1993 d 12 Mar 2001 d 12 Mar 12 Oct 1992d 10 Oct 2006d 18 Jan 1994 d 18 Jan 1 Sep 1993d 4 Feb 1993 d 6 jul 1992d CSR 311 CEU eTD Collection Otherprivileges guaranteeInternational mechanism Non-discrimination Equality before law Religious rights cultural, educational institutions to The right establish maintain and private life Right to use minority language in II: Art. 7 (3) Access to press in minority language language to The right education the minority in before administrative authorities to The right use minority language courts Right to use minority language before Otherprivileges guaranteeInternational mechanism 1. 2. Analyzed provision Analyzed provision B) The Minorities Treaty The ICCPR The instruments Evaluationof theminority rights standards of each cited international II: Art. 2 II: Art. 7,Art. 8 foundations establishmentsand assured by the State) III: Art.10(religious privileges of the Muslim community, religious sums, but only in the transferred territories!,) III: Art. 8(“at their own expense”), Art. 9(equitable share of public 7 (3) II: Art. territories!, where a “considerable proportion” belongs to the minority) III: Art. 9(equitable share of public sums , but only in the transferred 7 (3)(“adequately”) I: Art. II: Art. 6,Art.3-5 (right to citizenship, therightto opt for citizenship) iii: Art. 11 (Council’s decision,latter apetition mechanism) 0 complaint procedure complaint guaranteeInternational mechanism withbinding force, witha whose resolutions arenon binding, but with apetition procedure; iii - i –A monitoring body with advisory power; ii–A monitoring body obligations; witha flexibility clause; III - therightswithexpressed positive without expressed positive obligationor expressed positive obligation I – a minority withright flexibility clause; II – other obligations complaint procedure complaint guaranteeInternational mechanism withbinding force, with a whose resolutions non are binding, but with apetition procedure; iii- i –Amonitoring body withadvisory power; ii– A monitoring body obligations; witha flexibility clause; III - therights withexpressed positive without expressed positive obligation or expressed positive obligation I –aminority withflexibilityright clause; II– other obligations recognized status of minorities, positive measures) III: clearly determined by the practice of the Committee (legally without binding force ii: petition procedure (Art.41), special treaty body, its statements are 99 Stringency of therequirement of Stringency Strength of the requirement CEU eTD Collection Equality before law Religious rights cultural, educational institutions to The right establish maintain and private life Right to use minority language in II: Art.Access 4 to (a) press in minority language language to The right education the minority in before administrative authorities to The right use minority language courts Right to use minority language before Otherprivileges guaranteeInternational mechanism Non-discrimination Equality before law Religious rights cultural, educational institutions to The right establish maintain and private life Right to use minority language in II: no positive Accessmeasures are to expresslypress in required minority language language to The right education the minority in before administrative authorities to The right use minority language courts Right to use minority language before 3. Analyzed provision The OsimoTreaty complaint procedure complaint guaranteeInternational mechanism withbinding force, with a whose resolutions non are binding, but with apetition procedure; iii- i –Amonitoring body withadvisory power; ii– A monitoring body obligations; witha flexibility clause; III - therightswithexpressed positive without expressed positive obligation or expressed positive obligation I –aminority withflexibilityright clause; II– other obligations representationof minority members administrativein positions, Art. 2 III:Annex II, (e.g. facilitating the access to fairand 0 organizations) corresponding other for (b)same conditionsthe as 4 (public support under financial Art. III: II: Art. 5 Annex) groups.” obligation+ the to the minority maintain schools listed in the school teaching inthe mother tongue shall be accorded to both secondary primary, professionaland 4 (c)(„kindergarten, Art. III: language, official documents withtranslation) obligation5 (+the III: Art. of the authority to reply in the same the minority language) III: Art.5(Locality, street, public institutionnames also indicated in procedure) 8 (aMixediii: Art. Yugoslav-Italian Committee, individual complaint 26 members atalllevels of government, public offices, army etc. + Art. III: affirmative actionis required, the representationof minority II: Ensured also by Art. 14 ensured by Art. 18 II: Therightto establish religious institutions, religious freedom is III: positive measures required to preserve the culture of the minority ICCPR] discrimination prohibitions on the basis of language [Art. 2(1) of the II: recognized by 17 of to privacy),Art. ICCPR the (right III: consistent requirement of affirmative actions procedures other which in unclear (f)],14.3. but proceedings [+Art. criminal in requirement II: clear minority language III: required several times + thevoting procedure shall be available in language, official documents withtranslation) III: Art. 5(+the obligation of the authority to reply in the same 100 Strength of the requirement CEU eTD Collection Non-discrimination II: Art. 6,8, Annex II, Art. 1 exemptions forminority members atransitional period)during especially as inspectorates of schools; professional qualification 101 CEU eTD Collection Otherprivileges guaranteeInternational mechanism Non-discrimination Equality before law Religious rights cultural, educational institutions to The right establish maintain and private life Right to use minority language in Access 0 to press in minority language language to The right education the minority in before administrative authorities to The right use minority language courts Right to use minority language before Otherprivileges guaranteeInternational mechanism 5. 4. Analyzed provision Analyzed provision The substantial provisions of the Carrington Draft: OSCE documents status”) minority of substantial percentage of the population), Art.5(“special III: Art. 4(“a general of right participation”public in affairs for the i: Art.5B, monitoringinternational mechanism an necessary”) “where (pos.31. obligations verydoc., par. Copenhagen II: softly drafted, necessary”) “where (pos. 31.obligations verydoc., par. II: Copenhagen softly drafted, religious institutions religious educational activities, to the right establish maintain and II: freedom of religionincluding theuse of minority language in culture, possibility of public funds) II: (pos. obligations very softly drafted, “facilitate” the minority 32.1. doc., par. II: Copenhagen tongue”) opportunities forinstruction of mothertheir tongue motherortheir in doc., soft par.I: Copenhagen 43., (“have wording adequate authorities”) public before use its for necessary, and I: Copenhagen doc., par. 43.,very soft wording (“wherever possible affairs”, leaving awide liberty for States how to realize it. “effective 35., publicdoc., par. in II: Copenhagen participation 0 and necessary, for its use before public authorities”) public before use its for necessary, and I: Copenhagen doc., par. 43., very soft wording (“wherever possible complaint procedure complaint mechanism guarantee International withbinding force, with a whose resolutions are non binding, but with apetition procedure; iii- A monitoringi – body withadvisory power; ii – A monitoring body obligations; witha flexibility clause; III-therights with expressed positive without expressed positive obligation or expressed positive obligation I –aminority withflexibility right clause; II – other obligations complaint procedure complaint mechanism guarantee International withbinding force, with a whose resolutions are non binding, but with apetition procedure; iii- A monitoringi – body withadvisory power; ii – A monitoring body obligations; witha flexibility clause; III-therights with expressed positive without expressed positive obligation or expressed positive obligation I –aminority withflexibility right clause; II – other obligations 102 Strength of the requirement Strength of the requirement CEU eTD Collection Non-discrimination Equality before law Religious rights cultural, educational institutions to The right establish maintain and private life Right to use minority language in Access 0 to press in minority language language to The right education the minority in before administrative authoriti to The right use minority language courts Right to use minority language before Otherprivileges guaranteeInternational mechanism Non-discrimination Equality before law Religious rights cultural, educational institutions to The right establish maintain and private life Right to use minority language in II: Art. Access2. b)to 3. press in minority language language to The right education the minority in before administrative authorities to The right use minority language courts Right to use minority language before 6. Analyzed provision The 1992UNDeclaration es II: soft wording (“to use owntheir language,private in inpublic”)and II: Art. 3.1. II: Art. 3.2. II: Art. 2.1. II: Art. II: Art. 4.,Art. 5. 2.1. II: Art. the minority language, “whereverpossible”), soft positive obligation I: soft wording (the rightto educationthe minority in language or of II: soft wording (“to use owntheir language,private in inpublic”)and not“in incompatiblea manner withnational legislation”) II: Art.2.3. (the to right effectively participate in the decision making, 0 2 b) 3. II: Art. II: Art. 2a) 1. l) II: Art. 2.a) 1. g) II: Art. 2.a) 1. I), Art. 2.b) 3. b)2. 3. II: Art. alphabet, bothpublicin private,and in education”), and Art.5c II: Art. 2.b) 3., soft wording (the right to “use of language and alphabet, bothpublic in private,and in and education”) II: Art. 2.b) 3., soft wording (the right to “use of language and alphabet, bothpublic in private,and in and education”) II: Art. 2.b) 3., soft wording (the right to “use of language and complaint procedure complaint mechanism guarantee International withbinding force, with a whose resolutions are non binding, but with apetition procedure; iii- A monitoringi – body withadvisory power; ii – A monitoring body obligations; witha flexibility clause; III -therights with expressed positive without expressed positive obligation or expressed positive obligation I –aminority withflexibility right clause; II – other obligations 103 Strength of the requirement CEU eTD Collection Otherprivileges guaranteeInternational mechanism Non-discrimination Equality before law Religious rights cultural, educational institutions to The right establish maintain and private life Right to use minority language in Access 0 to press in minority language language to The right education the minority in before administrative authorities to The right use minority language courts Right to use minority language before Otherprivileges guaranteeInternational mechanism 8. 7. Analyzed provision Analyzed provision The summed Carrington Draft standards Commission for Democracy through Law(Proposal of the VeniceCommission) Proposal for a Conventionfor the Protection ofMinorities oftheEuropean complaint procedure complaint guaranteeInternational mechanism withbinding force, with a whose resolutions non are binding, but with apetition procedure; iii- i –Amonitoring body withadvisory power; ii– A monitoring body obligations; witha flexibility clause; III - therights withexpressed positive without expressed positive obligation or expressed positive obligation I –aminority withflexibilityright clause; II– other obligations status”) of the substantial provisions minority of substantial percentage of the population), Art.5(“special III: Art. 4(“a general of right participation”public in affairs for the Venice the Commission’s Proposal 24-26) under procedure (Art. ii: petitionprocedure (Art. 41) underICCPR; petition asimilar II: Art. 4,Art. 16 0 10 II: Art. II: Art. 5,Art. 6 ReportExplanatory 31. 7 + par. II: Art. II: 9, 2 Art. regions substantially inhabitated by the minority), III: 9, 1 Art. I: Art. 8,with aflexibility clause (“as far aspossible”) 14 (2)(“asas possible”) far in the decision makingof the region inhabitated by the minority), Art. II: Art. 13 (State shall facilitate the effective participation of minorities are without binding force ii: petitionprocedure (Art. 24-26), special treaty body, itsstatements I: 8, withArt. a flexibility a clause (“as faras possible”) complaint procedure complaint mechanism guarantee International withbinding force, with a whose resolutions are non binding, but with apetition procedure; iii- A monitoringi – body withadvisory power; ii – A monitoring body obligations; witha flexibility clause; III-therights with expressed positive without expressed positive obligation or expressed positive obligation I –aminority withflexibility right clause; II – other obligations nd st (aflexible to right learnin the minority language) sentence (the rightto the learnminority language the in 104 Strength of the requirement Strength of the requirement CEU eTD Collection Non-discrimination Equality before law Religious rights cultural, educational institutions to The right establish maintain and private life Right to use minority language in II: Art. Access12 (ii) to press in minority language language to The right education the minority in before administrative authorities to The right use minority language courts Right to use minority language before Otherprivileges guaranteeInternational mechanism Non-discrimination Equality before law Religious rights cultural, educational institutions to The right establish maintain and private life Right to use minority language in II: Ensured e.g. by Art. 2. Accessb) 3 to of press the in substantialminority provisionslanguage language to The right education the minority in before administrative authorities to The right use minority language courts Right to use minority language before 9. Analyzed provision Recommendation1134 (1990) Proposal (the to right instruction of the minority language) complaint procedure complaint guaranteeInternational mechanism withbinding force, with a whose resolutions non are binding, but with apetition procedure; iii- i –Amonitoring body withadvisory power; ii– A monitoring body obligations; witha flexibility clause; III - therightswithexpressed positive without expressed positive obligation or expressed positive obligation I –aminority withflexibilityright clause; II– other obligations II: Art. 10(ii) (reference to the non-discriminationrule) 10 (i)(equalaccess II: Art. to courts) II: Art. 11(iii)religious (rightto maintain institutions) II: Art. 11(iii) 0 public educationmothertheir in tongue”) I: Art. 12(i), soft wording (“have access to adequate types and levels of 0 without expressed positive obligations of the State) II: Art. 11(iv) (the to right fully participate decision-making,in 0 III: ICCPR practice II: Ensured e.g. by Art. 2a) 1. l) of the substantial provisions II: Ensured e.g. by Art. 2a) 1. l) of the substantial provisions III: ICCPR practice II: Ensured e.g. by Art. 2.b) 3 of the substantial provisions 1 ICCPR 9, III: practice, Art. ICCPR the II: Ensured by Art. 2 b) 3 of the substantial provisions, Art. 14.3. (f) of III: ICCPR practice 0 105 Strength of the requirement st sentence of the Venice ofthe Commission’s sentence CEU eTD Collection before administrative authorities to The right use minority language courts Right to use minority language before Otherprivileges guaranteeInternational mechanism Non-discrimination Equality before law Religious rights cultural, educational institutions to The right establish maintain and private life Right to use minority language in II: ICCPR practice (no positive measures are expresslyAccess required) to press in minority language language to The right education the minority in before administrative authorities to The right use minority language courts Right to use minority language before Otherprivileges guaranteeInternational mechanism 11. 10. Analyzed provision Analyzed provision The Framework Convention Vance-Owen Plan Vance-Owen complaint procedure complaint guaranteeInternational mechanism withbinding force, with a whose resolutions non are binding, but with apetition procedure; iii- i –Amonitoring body withadvisory power; ii– A monitoring body obligations; witha flexibility clause; III - therights withexpressed positive without expressed positive obligation or expressed positive obligation I –aminority withflexibilityright clause; II– other obligations II: Art. 10.3. (criminal proceedings), but not in other proceedingsotherproceedings), but in not (criminal 10.3. II: Art. 11. II: Art. 25-26. Art. i: non-discrimination)as a minimum group balance, but A.2(b)(obligationSectionto II: VI., par. maintain II: ICCPR “internationalized” monitoring+ an rights system human byensured 18 of ICCPR Art. the II: Therightto establish religious institutions, religious freedom is III: ICCPR practice basis of language [Art. ICCPR] 2(1), onthe prohibitions discrimination to privacy), (right of theICCPR by recognized 17 II: Art. III: ICCPR practice (f)14.3. of ICCPR II: Art. the non-discrimination)as a minimum group balance, but A.2(b)(obligationSectionto II: VI., par. maintain Bosnia andHerzegovina”) +ICCPR mechanism ii: Art. VI.B.3. (“International Commissionon Human Rights for complaint procedure complaint guaranteeInternational mechanism withbinding force, with a whose resolutions non are binding, but with apetition procedure; iii- i –Amonitoring body withadvisory power; ii– A monitoring body obligations; witha flexibility clause; III - therightswithexpressed positive without expressed positive obligation or expressed positive obligation I –aminority withflexibilityright clause; II– other obligations II: Art.10.1., 10.2.Art. III: ICCPR practice 106 Strength of the requirement Strength of the requirement CEU eTD Collection Non-discrimination Equality before law Religious rights cultural, educational institutions to The right establish maintain and private life Right to use minority language in II: AccessFramework to Convention press in minority language language to The right education the minority in before administrative authorities to The right use minority language courts Right to use minority language before Otherprivileges guaranteeInternational mechanism Non-discrimination Equality before law Religious rights cultural, educational institutions to The right establish maintain and private life Right to use minority language in II: Art. 9. + Explanatory AccessReport, par. to 61-62., press flexiblein minority positivelanguage language to The right education the minority in 12. Analyzed provision Dayton AgreementDayton complaint procedure complaint guaranteeInternational mechanism withbinding force, with a whose resolutions non are binding, but with apetition procedure; iii- i –Amonitoring body withadvisory power; ii– A monitoring body obligations; witha flexibility clause; III - therightswithexpressed positive without expressed positive obligation or expressed positive obligation I –aminority withflexibilityright clause; II– other obligations II: Framework Convention, butIII:ICCPR practice Convention Framework II: Convention Framework II: II: Framework Convention, butIII:ICCPR practice Convention Framework II: II: Framework Convention, butIII:ICCPR practice Convention Framework II: II: Framework Convention; butICCPR III: practice ii: constitutional mechanism (ChapterTwo), ICCPR procedure II: Art. 4.2., Art. 6.2. 4.2. II: Art. 7-8. II: Art. identity), Art. 7,Art. 17, Art. 13.1. II: Art. 5.1.(the State’s soft duty to promote minority culture and 10.1. II: Art. obligation (“they shall ensure, as far aspossible”) very limited rightto minorityin the learn language) II: Art.14.1. (the rightto learnthe minority language), Art.14.2. (a II: Framework Convention, butIII:ICCPR practice 107 Strength of the requirement CEU eTD Collection International guaranteeInternational mechanism Non-discrimination Equality before law Religious rights cultural, educational institutions to The right establish maintain and private life Right to use minority language in II: Art. VII. 4 (b).Access to press in minority language language to The right education the minority in before administrative authorities to The right use minority language courts Right to use minority language before Otherprivileges guaranteeInternational mechanism 14. 13. Analyzed provision Analyzed provision Ahtisaari Plan The Rambouillet Agreement complaint procedure complaint guaranteeInternational mechanism withbinding force, with a whose resolutions non are binding, but with apetition procedure; iii- i –Amonitoring body withadvisory power; ii– A monitoring body obligations; witha flexibility clause; III - therights withexpressed positive without expressed positive obligation or expressed positive obligation I –aminority withflexibilityright clause; II– other obligations mechanism Committee underthe Framework Convention, +the ICCPR the international rights bodies human (Art. 2.6.),the Advisory however,it provides that allKosovar authorities shall cooperate with judges, Art. IX, Art. 2.2. c, but no specialized human bodies), rights monitoringii: International mechanism (Art. IX-XI, international Art. V.4 (c). II: Art. I.1. +equal representationpublic in life, Art. II.1, Art. IV.1 (a), I.3. II: Art. religious associations) III: Art. VII. 5 (f) + ECHR, Art. X+ Art. VII. 5 (f) (public funds to VII. 5(f) (public III: Art. funds) II: Art. VII.(c) 5 +ECHR X.Art. very limited rightto minorityin the learn language) II: Art.14.1. (the rightto learnthe minority language), Art.14.2. (a expressed,I: not OSCEstandards II: “effective participationpublicin affairs” underthe OSCE duty VII. 4(c). VII. 4(a)(v)-(vii),Art. VII. 4(a)(v)-(vii),Art. VII. 5(d),Art. III: Art. II.2. procedure, Art. complaint I. (Ombudsman), Art. ii: Implementation I,Art.I.1.(Implementation Mission); Chapter I, complaint procedure complaint guaranteeInternational mechanism withbinding force, with a whose resolutions non are binding, but with apetition procedure; iii- i –Amonitoring body withadvisory power; ii– A monitoring body obligations; witha flexibility clause; III - therightswithexpressed positive without expressed positive obligation or expressed positive obligation I –aminority withflexibilityright clause; II– other obligations I: not expressed,I: not OSCEstandards 108 Strength of the requirement Strength of the requirement CEU eTD Collection Non-discrimination Equality before law Religious rights cultural, educational institutions to The right establish maintain and private life Right to use minority language in III: Annex II, Art. 3.1. j)-k). Access(a concrete to duty press to in minority allow language the Kosovo Serbs language to The right education the minority in before administrative authorities to The right use minority language courts Right to use minority language before Otherprivileges III: Annex II, Art. 2.2., 2.3. equality) (Kosovo2.3-4. III: Art. promote and should tolerance reinforce Serbian Orthodox Church) (promotionof religious heritage), Annex V (special privileges of the 2.5. II,Art. III: Annex (free contact with the kin State) (financial assistance for the minority culture), Annex II, Art. 3.1.l) III: Annex II, Art. 2.1., Art. 2.5., Art. 3.1. n). II: Art. VII.(c) 5 +ECHR X.Art. channel) Serbian Kosovo-wide licenced a to access II: Annex II, Art. 3.1. e). III: Annex II, Art. 3.1. e)-f). (public financing of the translation costs) minority language), Annex II, Art. 3.1.i), (street andlocal names) affairs), Annex II, Art. 3.1.h)(registration of personal names in the II: Art. 3.2.(representation “effective and participation”public in public bodiesin 4. (representation like police); II,Art. III: Annex III: Annex II, Art. 3.1. e)-f). (public financing of the translation costs) 109 CEU eTD Collection Non-discrimination Equality before law Religious rights cultural, educational institutions to The right establish maintain and private life Right to use minority language in III: CFSG, Art. 4.4(c), (l),Access (o) to (“be press guaranteed in minorityaccess language to, and language to The right education the minority in before administrative authorities to The right use minority language courts Right to use minority language before Otherprivileges guaranteeInternational mechanism 15. Analyzed provision Kosovo (LUL)] Kosovo the promulgation oftheLaw on theuseoflanguages Assembly adoptedbythe of provisional self-government2006/51 on Regulation (CFSG) and No. inKosovo regulations frameworkUNMIK A constitutional [RegulationNo.2001/9on for bodies), (m) equalopportunity 4.4 (b)(the to II: CFSG,employment Art. public in II: CFSG, Art. 4.4 (m) II: CFSG, Art.4.4(n)(theto right operate religious institutions) establishassociations), (p) (the possibility to receive public funds) II: CFSG, Art. 4.4 (e) (contact with the kin State), (g) (the right to II: ICCPR, LUL relevant languages” (=positive duty on the public media) representation public in, broadcast media, as well as programming in tongue publicin school education”) III: LUL, Art. 20.1 (“the rightto receive instructiontheir mother in provided”) establishments and educationminority in language, “may be II: CFSG, 4.4 (b);Art. (b) (the possibility of financial assistance forthe the municipalityin official languages) III: LUL, see e.g. Art. 4.2 (translation duty in any official language + II: CFSG, Art. 4.4; educationminority in language withaffirmative action) commission, media, language LUL,names, 19-24 (personal Art. III: CFSG: (l)(the ofright the Communities to preserve cultural sites); ii: CFSG, Art. 3.2. (PISG) + ICCPR mechanism complaint procedure complaint guaranteeInternational mechanism withbinding force, with a whose resolutions non are binding, but with apetition procedure; iii- i –Amonitoring body withadvisory power; ii– A monitoring body obligations; witha flexibility clause; III - therightswithexpressed positive without expressed positive obligation or expressed positive obligation I –aminority withflexibilityright clause; II– other obligations in the the municipalityin official languages) III: LUL, see e.g. Art. 4.2(translationduty in any official language + II: CFSG, 4.4 Art. 110 Strength of the requirement CEU eTD Collection Otherprivileges guaranteeInternational mechanism Non-discrimination Equality before law Religious rights cultural, educational institutions to The right establish maintain and private life Right to use minority language in III: Art. 42 (freedom of media), Art. 59 (10)-(11) (granted access Accessfor to press in minority language language to The right education the minority in before administrative authorities to The right use minority language courts Right to use minority language before Otherprivileges guaranteeInternational mechanism 17. 16. Analyzed provision Analyzed provision Recommendation1201 (1993) Kosovo’s Constitution Kosovo’s complaint procedure complaint guaranteeInternational mechanism withbinding force, with a whose resolutions non are binding, but with apetition procedure; iii- i –Amonitoring body withadvisory power; ii– A monitoring body obligations; witha flexibility clause; III - therights withexpressed positive without expressed positive obligation or expressed positive obligation I –aminority withflexibilityright clause; II– other obligations III: Art. 6(the to right set up political parties), Art. 7(2) (official iii: ECHR mechanism 57 (2) II: Art. equality”) “effective 58 (4)(adoptionof 24, Art. adequate measures to promoteIII: Art. monuments”) 39 (Kosovo 38, Art. III: Art. “protects autonomy religious religious and public funds) initiatives of communities), Art. 59(14), Art. 59(4) (possibility of 44 (freedom III: Art. of58 (public association),funds for Art. cultural (5) 59 II: Art. Ahtisaari Plan) communities to public broadcast media, the same wording as in the 59 (4)(possibility stipulated!), normally Art. of public funds) lower than threshold a (educationwith59 (3) 59 (2), III: Art. Art. Ahtisaari-plan) the same wording asin 59 (6)(the III: Art. minorities localin governments) employmentpublic in bodies at alllevels), Art.62 (representation of Art.61 (equitable representation of community members in 60 (Consultative Councilfor Communities), 59 (7)-(9),Art. III: Art. 132 (Ombudsman) Art. i: complaint procedure complaint guaranteeInternational mechanism withbinding force, with a whose resolutions non are binding, but with apetition procedure; iii- i –Amonitoring body withadvisory power; ii– A monitoring body obligations; witha flexibility clause; III - therightswithexpressed positive without expressed positive obligation or expressed positive obligation I –aminority withflexibilityright clause; II– other obligations III: Art. 59 (6) (the same wording as in the the Ahtisaari-plan) in samewording as (the 59 (6) III: Art. 111 Strength of the requirement Strength of the requirement CEU eTD Collection Non-discrimination Equality before law Religious rights cultural, educational institutions to The right establish maintain and private life Right to use minority language in II: Art. 7 (1) (the right to use Accessminority languageto press“in publicationsin minority and language in language to The right education the minority in before to The right use minority language courts Right to use minority language before administrative authorities national minority are settled”) II: Art.7 (3) (“In the regionswhich in substantial numbers of a II: Art. 4 II: Art. 4 II: Art. 3(freedom of religion) State) Art. 8(2) (educational institutions), Art. 10(free contact with the kin II: Art. 6(the to right set up organizations, including political parties), (1) 7 II: Art. the audiovisual sector”) schools”) educationhis/her mother in tongue at anappropriate number of II: Art.8 (1) (“right to his/hermotherlearn tongue and to receive an national minority are settled”) II: Art. 7(3) (“In the regions inwhich substantial numbers of a action they are inamajority”) – an autonomy provision affirmative requiring signs, inscriptions »), Art. 11(special status: “In the regions where recognition of names in minority language), Art. 7(4) (“local names, 112 CEU eTD Collection l’Homme/Human Rights Journal p. 414-442. 413 (1953), J. 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