EUROPEAN COMMISSION FOR DEMOCRACY THROUGH
LAW
(VENICE COMMISSION)
UNIDEM
Campus trieste seminar
“POLICIES ON THE
PROTECTION AND SOCIAL INTEGRATION
OF IMMIGRANTS AND
THEIR IMPLEMENTATION
AT THE
INTERNATIONAL, NATIONAL AND LOCAL LEVEL”
Trieste, Italy
29 June – 2 July 2009
|
REPORT
THE PRINCIPLE OF
EQUALITY AND NON-DISCRIMINATION
UNDER THE FRAMEWORK
CONVENTION
FOR THE PROTECTION OF NATIONAL MINORITIES:
ALSO A TOOL
FOSTERING THE INTEGRATION
OF MIGRANTS'
CHILDREN IN THE FIELD OF EDUCATION?
by
Mrs Lidija BASTA FLEINER
(Permanent Guest Professor for
Political Theory
and Contemporary Political
Doctrines, Faculty of Political Sciences, University of Belgrade, Serbia –
former Professor,
University of Fribourg, Switzerland)
Part I:
Mapping the Issues
I. 1. International Legal
Standards for Minority Protection
·
In
General : Democracy, the Rule of Law and Human Rights
·
Minorities
in Particular -> Human Rights Approach
·
ius
cogens principles of minority protection;
·
“a
limited collective dimension to minority rights”: the problem of definition
(Art. 27 ICCPR - “via media between rights of individual and full
collective rights”);
·
UN
Minority Declaration - the four major requirements for minority protection that
remain undisputable and non-negotiable guidelines for assessing national
legislation on minorities and its compliance with the international standards
of minority protection, notably the UN Minority Declaration:
o
existence
protection
o
non-exclusion
o
non-discrimination
(migrants also), and
o
non-assimilation.
·
UN
Indigenous Peoples Declaration – collective right dimension
·
A new
shift in the Framework Convention for the Protection of National Minorities:
minority rights become integral part of fundamental human rights
– the principle of indivisibility and universality of fundamental human rights
I. 2. Constitutionalisation of
international standards
·
a/
the constitutionalisation of international standards, especially but not
any more only in the human rights sphere - the role of the Council of Europe,
as a “constitutional advisor”
·
b/
the internationalisation of constitution-making through facilitation and
mediation in post-conflict situations
·
Constitutionally
laid down, directly effective protection that incorporates international
standards of minority protection –> minority rights are fundamental rights,
i.e., statutes cannot reduce constitutional scope of minority protection
·
positive
measures for full and effective equality/additional rights and/or affirmative
action
·
NB:
Statutory, policy-and-implementation-practice level must not reduce
constitutionally guaranteed scope of protection!
I. 3. Shifting to migration
aspects in citizenship policy
3. Migration policy is
rightly analyzed within the relationship between migration, the state and the
society. Citizenship models, modes of migrant incorporation, membership of the
welfare state, socio-cultural exclusion, discrimination and ethnic minority
formation, as well as ethnic mobilisation become major cross-cutting issues to
address mature and emergent problems in migration policies. As regards the
normative elements in future EU policy aiming at “complex-equality” and
“reasonable accommodation” of cultural diversity among migrants (inter-culturalism
as equal access of migrants to social services in terms of identity-driven
equal rights and equal results) these are the issues to be seriously taken into
account. The link between inter-ethnic relations, changes in personal and group
identity even without a further phase of incorporating migrants into
citizenship must take into account this inherent relationship between
migration, nation-state and society. A further significant step forward would
be to focalize on the empirical aspects in the relationship between social
disintegration, globalisation and intercultural and inter-ethnic conflicts at
a micro level.
I.4. Education: a fundamental
human right also for migrant children:
4. “In several EU Member States
migrant children without a residence permit may have a right to attend school
but it is compromised by other regulations or policies. This is violating
states’ obligation under international as well as European law.
5. The importance of education for
the development of the individual person as well as for societies is nowhere
seriously disputed. (…). It is also rather commonplace that access to education
is a fundamental human right.
6. Nevertheless, in many countries around the
world children are still excluded by state policies from access to schools. (…)
This is especially true in a number of Member States of the European Union with
regard to children of asylum seekers, of migrants with “toleration” or undocumented
migrant families. In most of these countries there is a gap between provisions
in law on one hand and the reality on the other. (…)
7. These
findings are in sharp contrast to the states’ obligations under international
law.
In
the International Covenant on Economic, Social and Cultural Rights (ICESCR)5
State Parties have agreed to take steps “with a view to achieving progressively
the full realization of the rights recognized in the present Covenant by all
appropriate means” (Art. 2 para 1). Even if, therefore, the ICESCR does not
contain individual, enforceable obligations, Art. 2 para 2 of the Covenant
expressively commits State Parties to ensure that exercise of the rights
enunciated in the covenant will be without discrimination “of any kind” such
as, inter alia, colour, national origin “or other status.”
8. This
non-discrimination rule allows limitations of the enjoyment of social rights
only in so far as they might be compatible with the nature of these rights
(Art. 4). Even if a distinction could be justified with objective reasons it
must not touch the core of the respective right. This must be respected in the
interpretation and implementation of the relevant national law, especially with
regard to the right of education including primary education, which, in
accordance to Art. 13 (2) (a), “shall be compulsory and available free to all”.
9. To discriminate a person in
granting rights deriving from the ICESCR does also constitute a violation of
the International Convention on the Elimination of All Forms of Racial
Discrimination.8 As the UN Committee for the Elimination of All Forms of Racial
Discrimination has stated in their General Comment No. 30, the ICESCR sets forth
human rights states must grant to everybody being subjected to their
jurisdiction.9. (…)
10. The International Convention on
the Rights of the Child establishes in Art. 3 para 1 the duty of every state
to give priority to the best interest of a child in the context of any action a
child– being a person under the age of 18 years – is subjected to. This is
expressively true for the right of the child to education (Art. 28-29). (…)
11. Art. 14 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR)11 enshrines the right to freedom of discrimination on the grounds of,
inter alia, national origin or “other status”. This can result in a ban on
differentiation on these grounds in the context of social security. (…)
12. The Twelfth Protocol to the
ECHR (…) brought an expansion of the ban on discrimination because Art. 1 para
1 of the Protocol calls for every right guaranteed by law to be granted
without discrimination on any of the grounds enumerated in Art. 14 ECHR. Hence,
if a state stipulates school attendance to be compulsory for children being his
nationals he must also recognize the right of migrant children to education.
13. (…) under international as well
as regional European law a state violates obligations if non-citizens who are
asylum-seekers, “tolerated” migrants or irregular migrants, are completely
excluded from schooling and education for minors.”(Stefan Keßler)
Every
migrant child whatever the status under immigration law must in fact be able to
attend school.
Part II: The
Principle of Equality and Non-Discrimination under the FCNM
II. 1. In
General:
·
MR are integral part of fundamental HR and should be implemented
without discrimination
·
MR are understood as individual and can be enjoyed in community
with other individuals
·
MR are complementary to the anti-discrimination principle – second
level of non- discrimination legislation (positive measures)
·
As a legal treaty, the FCNM is a document of legal principles,
aimed at achieving full and effective (not only equal protection of laws)
equality – differential treatment needed (arts. 4 to 6)
·
a different level of protection for different rights
·
the key aspect and a foundational right – participation rights
coming out of the principle of effective participation in public and economic
life (Art. 15 in relation with Art. 4)
·
no rights to be directly claimed, exception: Art.3
·
Political dimension in minority rights introduced by FCNM is a key
challenge.
The Recommendation 1492/2001 of the Parliamentary Assembly says, inter alia,
that ‘the minority has the responsibility to participate in political and
public life of the country in which it lives and to contribute, along with the
majority, to the democratic cohesion and pluralism of the states to which it
has offered its allegiance”.
II. 2.
Full end Effective Equality Means: positive measures and the
obligation of a result
14. By declaring full
and effective equality a key standard for minority protection, the Convention
introduces a second level of anti-discrimination standards that will in many
cases imply additional rights for the persons belonging to minorities.
15. From the very
beginning of the monitoring process, the ACFC understood the principles of full
and effective equality and of second level of protection against discrimination
(Art. 4) as cornerstones for the foundational nature and inclusive scope of
participation under the FCNM. The ACFC particularly built upon para.2 of the
Article 4 of the Framework Convention, which explicitly demands from State
Parties to engage in “non-exclusion policy” prohibiting discrimination. It also
called on State Parties to adopt, where necessary, adequate measures in order
to promote, in all areas of economic, social and political and cultural life
“full and effective equality between persons belonging to a national minority
and those belonging to the majority”. Compared to respect and protection in
sequence, promotion is the third, highest level of accommodation.
16. The ACFC always
underlined that it did not consider positive measures as discriminatory. For
example, the ACFC saw that some discriminatory situations may be remedied by
adopting special measures, such as quotas, to ensure full and effective
participation of persons belonging to national minorities in terms of a more
significant presence of these minorities in state administrative structures.
17. In particular, the
ACFC often made in its opinions a cross-reference between the effective
participation, equality and non-discrimination principles, in order to address
the problem of differences in social and economic situations between certain
minorities and the majority. The ACFC also concluded that unemployment appears
to affect disproportionately persons belonging to national minorities,
especially young women, stressing the need to eliminate both direct and
indirect discrimination in the labour market, and enhance the recruitment of
qualified persons belonging to national minorities in public service persisted.
When coming to the dispute over minority land rights, the ACFC often pointed
out that both socio-economic and cultural aspects of the problem are directly
interrelated with the participation rights of the minority in question.
18. The ACFC understood
the FCNM in the following manner: Although positive measures in promoting
effective and full equality of persons belonging to national minorities also
take place at an individual level (obligation of an action), the aim behind
this second level of anti-discrimination standards goes beyond a given case,
and implies that such measures should have additional positive impact on the
situation of persons concerned/given community and on a society as a
whole (obligation of results also at a collective level).
