Henrard 2005 Participation, Representation, Autonomy

'Participation', 'Representation' and 'Autonomy' in the Lund Recommendations and their
Reflections in the Supervision of the FCNM and Several Human Rights Conventions
Author(s): KRISTIN HENRARD
Source: International Journal on Minority and Group Rights , 2005, Vol. 12, No. 2/3
(2005), pp. 133-168
Published by: Brill
Stable URL: https://www.jstor.org/stable/24675296
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International Journal on Minority and Group Rights 12: 133-168, 2005. 133
© Koninklijke Brill NV. Printed in the Netherlands.
'Participation', 'Representation' and 'Autonomy' in the Lund

Recommendations and their Reflections in the Supervision
of the FCNM and Several Human Rights Conventions
KRISTIN HENRARD"
1. Introduction
The effective participation of national minorities in the governance of States emerged

in the 1990s as a recurrent theme for the OSCE High Commissioner on National
Minorities. In an effort to obtain more clarity about the content of minority rights
and other relevant standards pertaining to this theme a group of international experts
was commissioned to draft a set of Recommendations, the result of which were the
1999 Lund Recommendations on the Effective Participation of National Minorities
in Public Life. Now that these recommendations have been in existence for five
years, it seems appropriate to take stock of the extent to which these are explicitly or
implicitly reflected in the supervisory practice under the minority rights instrument
par excellence, the Framework Convention for the Protection of National Minorities,
as well as a number of human rights conventions.
Various theoretical considerations about (degrees of) participation, representation,
democracy and minority protection form the framework against which the Lund
Recommendations are discussed. Subsequently, the supervisory practice under sev
eral conventions is assessed in terms of this framework. Since the Framework
Convention has an explicit minority focus, it is not surprising that the practice of its
supervisory machinery reveals in addition to certain broad similarities also more
specific reflections of the Lund Recommendations. The evaluation of the supervision
of the 'participation' provisions of more general human rights conventions may not
be equally reminiscent of the Lund Recommendations, also here certain common
themes can be identified. Finally, it should be noted that the practice of the supervi
sory organs tends to address certain participation related issues that are not covered
(explicitly) by the Lund Recommendations. Since the Lund Recommendations are
meant to have their roots in the existing minority and human rights standards, a pos
sible revision of these Recommendations should also take up the interesting develop
ments of the relevant supervisory practice.
* Associate professor at the University of Groningen where she teaches human rights, refugee law,
minority protection and constitutional law. She is furthermore the academic co-ordinator of the Human
Rights specialisation within the existing LLM in International and European Law. She is also involved
with the Netherlands Helsinki Committee, the NJCM, and is part of an expert team on minority ombuds
men of ECMI.

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134 KRISTIN HENRARD
2. Theoretical Considerations: Setting th
2.1. Participation
As the Lund Recommendations focus on part

life, it seems relevant to first of all elaborate
ticularly relevant because there does not exist,
Nevertheless, it is generally agreed that it po
look at the Lund Recommendations them
"minority rights and other standards genera
the HCNM is involved",2 one immediately
participation are distinguished, namely "par
governance". Arguably, "self-governanc
"participation in decision-making" actual
'representation',4 as it addresses representati
advisory bodies and in civil service, election
lishment of advisory bodies and other cons
"participation in decision-making" is conc
governance" is concerned with 'having (som
The representation and autonomy dimensio
that minorities on the one hand have certain
the polity as a whole, and on the other hand
only to themselves. An optimal inclusion or "
of minorities arguably requires as regards t
should at least 'have a say' through mechanis
in relation to the latter "minorities should,
significant measure of control or self-rule) ov
or only themselves through forms of self-g
representation and the autonomy dimension
1 See also Y. Gai, Public Participation and Minorities

2001) p. 5.
2 Introduction, Lund Recommendations on the Effective Participation of National Minorities in Public
Life and Explanatory Note (Foundation on Inter-Ethnic Relations, The Hague, 1999) p. 6.
3 See also Y. Dinstein, 'Autonomy', in Y. Dinstein (ed.), Models of Autonomy (Transaction Press,
New Brunswick, 1981) p. 291.
4 For further elaboration on this concept 'representation' see infra. Pitkin's work (H.F. Pitkin, The
Concept of Representation (University of California Press, Berkeley, 1967)) already signaled the multitude
of understandings of this concept, which has been intensely debated ever since.
5 J. Packer, 'The Origin and Nature of the Lund Recommendations on the Effective Participation of
National Minorities in Public Life', Helsinki Monitor (2000) p. 39.
6 The right to identity which is implicitly and explicitly protected by various minority instruments has
as a corollary the prohibition of forced assimilation, (inter alia P. Thornberry, International law and the
Rights of Minorities (Clarendon Press, Oxford, 1991 ) p. 141 ; K. Henrard, Devising an Adequate System of
Minority Protection: Individual Human Rights. Minority Rights and the Right to Self Determination
(Kluwer, The Hague, 2000) p. 166).
7 Packer, supra note 5, p. 39.

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'PARTICIPATION', 'REPRESENTATION' AND 'AUTONOMY' 135
self-determination8 which is said to be intrinsically bound up with participatory

rights.9 Indeed, it can be argued that the increasing acceptance of internal self-deter
mination has contributed to the growing prevalence of autonomy arrangements.10
Prior to elaborating on these two dimensions, I would like to point out that in federal
theory 'participation' and 'autonomy' are considered to be distinct principles, more
specifically referring to the two classical laws of federalism."
When considering the category of "participation in decision-making", it should be
highlighted that having a say in the decision-making process is indeed important since
that process is often decisive for the content of the outcome of decisions.12 Nevertheless,
the extent to which this 'having a voice' actually leads to decisions that are favorable to
minorities depends on several factors. In addition to actual attitudes of the broader body
politic in this regard, it is essential to distinguish between various degrees of 'having
a say' which can be put on axes strong-weak, presence-influence and direct-indirect.
If having a say consists of mere consultations, this will have less actual impact than
when it is 'consultation plus' which refers to an actual obligation to take the views
expressed into account or, even better, to an obligation to give reasons when the
authorities have not followed the advise. Even when 'mere consultations' are at issue,
it is important to note the corresponding obligations on the authorities regarding the
frequency of consultations, what the composition is of the body to be consulted, etc.
When the 'having a say' concerns the membership of certain official bodies further
distinctions can be made. First of all, on the axis weak-strong, one needs to know
whether it concerns membership of a legislative, executive or consultative body?
Minority members in legislative bodies can be ensured (ensured seats) or facilitated
by choices regarding the electoral system (see below). Within the executive body a
further distinction between government and civil service can be made. In any event
the distinction presence/(actual) influence plays in all these bodies. Indeed, having
one representative in a body of 50 persons does not guarantee at all that one has
actual influence on the outcome of the decision. In this regard, the statement that
"taking part in decision making is the most important form of participation"13 should
be put in perspective because there are so many modes of "taking part...". Similarly,
' K. Gall, 'Minority Governance on the Threshold of the Twenty-first Century: Introduction', in K. Gall
(ed.), Minority Governance in Europe (ECMI, Flensburg, 2002) p. 2; L. Hannikainen, 'Self Determination
and Autonomy in International Law', in M. Suksi (ed.), Autonomy: Applications and Implications
(Kluwer, The Hauge, 1998) pp. 90-94. See also S. Wheatley, 'Democracy in International Law: A
European Perspective', 51 I.C.L.Q. (2001) pp. 230-231.
9 In this respect Kinga Gall considers autonomy as an institutionalized form of participation in decision
making because it is "one way of ensuring that all significant segments of a society are able to participate
effectively in the political . . . decisions which affect their life" (Gall, supra note 8, p. 2).
10 See also Ghai, supra note 1, p. 7.
11 A. Alen, Handboek van het Belgisch Staatsrecht (Kluwer, The Hague, 1999) p. 323. In this respect,
it can be noted that while Fernand de Varennes's Working Paper on Effective Political Participation and
Representation of Minorities also addresses autonomy issues, albeit rather marginally (E/CN.4/Sub.2/AC5/
1998/WP4, 3.b.i and ii), it does not feature at all in the proposals of the ECMI seminar entitled 'Towards
Effective Participation of Minorities', E/CN.4/Sub.2/AC.5/1999/WP.4.
13 Ghai, supra note 1, p. 12.

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136 KRISTIN HENRARD
questions of possible veto-power or th

islative or executive bodies also determ
is direct/indirect and concerns the qu
sented has an exclusive minority focus
to the mandates of advisory bodies (d
not), the question of communal repres
minority groups (e.g. the Sami parlia
situated here. Communal representati
tain seats in parliament, for which onl
vote. Communal representation is ver
itygroups and obscures cross cutting
Sami parliaments are more often seen
that the 'representation' and 'autonom
2.2. Representation
Several conceptual analysis have bee

there are many different understanding
issue of specific relevance to the topic
tive representation. Mirror representati
resentative a legislature's composition
whole nation in the sense that the leg
of the population of the country. It ha
sentation misconstrues the nature of t
Pitkin underscore that active represen
sive towards' catches the deeper mean
representation is arguably closely r
responsiveness more than on represen
Nevertheless, even Pitkin acknowledge
In addition a great number of theorist
optimistically discards descriptive rep
14 Ibid., p. 18.
15 Inter alia K. Myntti, 'The Beneficiaries of
Indigenous Peoples in General and the Sami
Applications and Implications (Kluwer, The H
16 Hannah Pitkin in her seminal work The
descriptive representation (physically standin
activerepresentation (acting for).
17 See also A. Verstichel, 'Elaborating a Cata
National Minorities', to be published in the Eu
18 See inter alia J. Pollak and P. Slominski,
Nothing; Responsiveness is Everything', pape
Association of Canada.
19 M. Wissenberg, 'Against Mass Democracy: The Role of the Conception(s) of Democracy in the
Defence of Democracy', paper presented at the 2001 Annual Conference of the Dutch Political Science
Association, p. 7.

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of the symbolic power of representation not be underestimated but also issues of

more fundamental legitimacy are at stake.20 The constant and systematic exclusion
of a group from the representatives tends to signal exclusion from full membership of
the community. Hence, representatives of such groups should be included in the leg
islature in order for that group and its specific concerns to be adequately represented
and the tyranny of the majority countered.21 One accepts this reasoning easily enough
in terms of gender, why not in terms of race and or ethnicity? In the latter respect, it
should be highlighted that from the moment women were better represented in
Parliaments, gender issues effectively feature more prominently in discussions and in
new legislation.22 Hence, it can be argued that minority inclusive representation is
more likely to bring minority related considerations of policy to the forefront.
Arguments that members of minorities are not necessarily the best representatives for
minorities are not without merit, which is related to the fact that minorities do not tend
to be completely homogeneous groups all the members of which think identically.
Nevertheless, members of minorities are still relatively sure to be more fully aware of
the specific minority concerns and to be more responsive to all the minority's needs
and concerns.23 Even when one is convinced that mirror representation is in itself not
fully adequate, it can still be argued to be a necessary dimension of representation that
should not be ignored.24 Hence, a certain level of mirror representation is here con
sidered to be beneficial to the overall participation of minorities in public life.
Once one accepts (to some extent) that minorities also need to be included among
the representatives of the people, several measures to facilitate a more representative
composition of parliament can be identified to achieve this. These measures range
along a continua of direct/indirect and opportunity/result and include a variety of
choices in regards to the appropriate electoral system, minority conscious delimitation
of electoral districts, minority seats, and exemptions from numerical thresholds.25
Quota or reserved seats for minorities are direct methods geared to reach a certain
result, while a choice of certain election systems can indirectly contribute to the rep
resentation of minorities without ensuring that. The latter are obviously less con
tentious, in contrast to the former, which elicit critical reactions that are reminiscent
of the broader affirmative action debates.26
20 A. Phillips, The Politics of Presence (OUP, Oxford, 1995) p. 40.

21 Inter alia L. Guinier, The Tyranny of the Majority: Fundamental Fairness and Representative
Democracy (Free Press, New York, 1994) pp. 4-6.
22 See also A. Phillips, The Politics of Presence, 82.
23 Wissenburg, supra note 19, p. 7.
24 Phillips, supra note 20, pp. 24-26, 52.
25 See inter alia F. Palermo and J. Woelk, 'No Representation without Recognition: the Right of
Political Participation of (National) Minorities', 25 European Integration (2003) pp. 229-238;
S. Wheatley, 'Deliberative Democracy and Minorities', 14 E.J.I.L. (2003) p. 517.
26 See also D.J. Amy, 'Fair Representation for Racial Minorities: Is proportional Representation an
Answer?', <www.mtholyoke.edu/acad/polit>, p. 2: "Proportional representation would allow minorities
a fair chance to elect their own candidates without resorting to the kind of race-based districting that has
provoked the recent legal backlash" (referring to case law by the US Supreme Court). See also A. Reding,
'Let's Dump Single-Member Electoral Districts: Proportional representation would ensure minorities a
place in legislatures', Christian Science Monitor, 8 August 1995, p. 2.

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138 KRISTIN HENRARD
In any event, in relation to the repre

islative bodies and more particularl
ample attention. In view of the succes
conjunction with the office of the H
Minority Participation in the Elector
remain rather open and are more an en
provide generous theoretical discussion
more clearly expressed. An important
the presence/influence point is that m
is not enough in the sense that it is no
any material role in decision-making.
respect, for example minority vetoes
portional allocation of civil service pos
These Guidelines take up the Lund R
elaborate on them, specifying various
discriminatory effects on national min
States should work towards a fair repres
how critical the choice of an electoral sy
mechanisms".28 They clearly speak out
ious electoral systems. Where minoritie
districts provide a better chance for the
PR systems are said to be most likely to
ties.30 The Guidelines (in line with wha
these might reinforce ethnic difference
mechanisms. Several indications are als
delimitation criteria for electoral distric
In addition to pure electoral matters,
lating a language
for publ requirement
sive right to vote. They also take up t
of Human Rights that the fact that a
minority to pursue its interests does n
are normally rights for every human
like the right to vote can be limited to
restrictions to human rights should be
their citizenship laws in a way that
minorities, and unreasonably inhibits
point, which can be deduced from th
dards, is explicitly made in the Guidel
27 Guidelines to Assist National Minority

Warsaw, 2001) p. 16.
28 Ibid.
29 Ibid., p. 18
10 Ibid., p. 19.
51 Ibid., p. 8.

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2.3. Participation - Representation more Broadly
As highlighted by the Guidelines already, questions of participation in public life do not

stop at representation in Parliament or other legislative bodies. In contrast to Article 3
of the first Additional Protocol to the ECHR, Article 25 ICCPR is not limited to elec
tions and the subjective right to vote. It more broadly enshrines the right to take part
in the conduct of public affairs (either directly or through freely chosen representa
tives) and also the right to have access on general terms of equality to public service
in one's country.32 Regarding this broader understanding of political participation,
arguments pro mirror representation or at least inclusion are also voiced in relation.33
In regard to the judiciary (and the administration of justice) these arguments carry
less weight in the sense that judges are exactly meant to be non-partial and independ
ent. Nevertheless also here it is important that all the population groups are somehow
'present' in the sense of not systematically excluded from the judiciary. This would
be particularly important from a legitimacy perspective when the judiciary can
review the constitutionality of legislation.34
It should furthermore be highlighted that having this presence of minorities in the
civil service, police, judiciary, etc has the additional benefit in multilingual States of
providing genuine access to public services for all the linguistic groups. Being able
to communicate in one's mother tongue with the civil service and public authorities
more generally is arguably also an important aspect of every person's right to par
ticipate in public life as enshrined in Article 25 ICCPR.35
While most attention in relation to participation goes to electoral systems36 and also
to membership of governmental authorities, there is an increasing emphasis, in the
framework of deliberative democracy, for consultation of members of minorities and
the establishment of advisory bodies on minority issues. Several experts argue that
when measures are being considered which are bound to affect minorities, these
should pro-actively be consulted so that they get some opportunity to participate in
the decision-making process.37 This is clearly mainly targeted to 'having a say' but this
is a matter of degree since several levels of deliberative inclusion and of actual say
can be distinguished. A first distinction concerns the way in which minorities are
32 For a brief comparison between Article 2, of the first Additional Protocol to the ECHR and Article 25
ICCPR see P. Van Dijk and G.J.H. Van Hoof, Theory and Practice of the European Convention on Human
Rights (Kluwer, The Hague, 1998) pp. 487-488.
33 See also the typology of different forms of participation of minorities in decision-making processes
by Frowein and Bank for the Council of Europe: DH-MIN (2000) 1, The Participation of Minorities in
Decision-Making Processes, pp. 13-14. Cf. Ghai, supra note 1, p. 18.
34 Phillips, The Politics of Presence, (Clarendon Press, Oxford, 1995) p. 187.
33 Proposals of the ECMI seminar 'Towards Effective Participation of Minorities', E/CN.4/Sub.2/AC.5/
1999/WP.4, paras. 28, 30 and 32. See also S. Wheatley, 'Non-Discrimination and Equality in the Right of
Political Participation for Minorities', JEMIE (2002) p. 7.
36 See Palermo and Woelk, supra note 25, pp. 225-248.
3' F. De Varennes, Towards Effective Political Participation and Representation of Minorities,
E/CN.4/Sub.2/AC.5/1998, WP.4, under structural mechanisms, viii and ix. See also Wheatley, supra note
25, p. 523.

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140 KRISTIN HENRARD
consulted, does the government contac

number of representatives of each or
effectuated through an advisory body
essential: is there a reasonable and
minorities? Consultation should not be
that the opinions of the minorities s
decide to establish advisory bodies to
logue between minority and governm
regards inclusion and participation ar
strength of government representatives
of its consultation and the actual impa
ity issues should have at least a majori
contribute to the political participatio
larly consult and follow in principle th
of political participation of minorities
The second dimension of participation
focuses on the importance of minorit
(without going as far as providing ov
ing a say' in issues of shared concern.4
only concerns certain competence fiel
larger entity the exercise of powers, wh
self-governance is always a question
the scope of the transfer of (legislativ
autonomous entity.43 Even though the f
rather on the 'control' part, this cont
cised within the framework of the broa
the starting point is that there is ever
of autonomy span quite a range, each
practices.44In a way, having veto-pow
community may not grant full autono
negative autonomy in that certain de
Such veto powers are hence in the gr
'self-governance' sphere.
38 Frowein and Bank, supra note 33, p. 15.

39 Wheatley, supra note 25, pp. 525-526.
41 Y. Ghai, 'Ethnicity and Autonomy: A Fra
Ethnicity: Negotiating Competing Claims in M
42 H. J. Heintze, 'On the Legal Understan
Applications and Implications (Kluwer, The Hagu
omy refers to the balance between the protectio
of the identity of minorities living within these
43 Ghai, supra note 41, pp. 11-12.
44 Gall, supra note 8, p. 6.

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Broadly two types of autonomy are distinguished namely territorial and non
territorial forms of autonomy. Territorial forms of autonomy go beyond regular local
and regional self-government and cover specific issues of importance for the com
munity concerned.45 Territorial autonomy only provides self-government for a group
if and to the extent that the group is territorially concentrated within a defined area
in which it constitutes the majority. Sometimes the opposite of territorial autonomy
is said to be personal autonomy, sometimes more refined distinctions are made (per
sonal, cultural and functional autonomy),46 the exact implications of which are not
always crystal clear.47 In this paper only the concepts 'territorial' and 'non-territorial'
autonomy will be used, in line with the Lund Recommendations (see below). The
common denominator of these non-territorial forms of autonomy is that the compe
tences are transferred not in relation to a certain specific territory but in relation to
a certain community irrespective of size and place of residence in the State.
While it is generally accepted that there is no right to autonomy in terms of positive
international law,48 in several instances national law has granted a measure of auton
omy to population groups in an attempt to alleviate tension and promote integration
and ultimate inclusion in the State.49 Nevertheless, States are in principle rather
reluctant to grant autonomy because of the spectre of possible ensuing secession and
the falling apart of the State.50 In this respect the most sensitivities are present in ter
ritorial autonomy for a territory defined on ethnic grounds,51 more specifically con
cerning a region in which a national minority forms the majority. Another important
45 Heintze, supra note 42, p. 18.

46 Ibid., pp. 22-24.
47 Heintze definitions of personal versus cultural autonomy in the end do not differ very much. He starts
by saying that cultural autonomy is a personal autonomy limited to cultural affairs but goes on to describe
personal autonomy as implying the competence to govern themselves in regards to issues of culture, lan
guage and education. In the end the only difference between the three types of non-territorial autonomy
seems to be the type of body/corporation that exercises the competences transferred. However, Wheatley
sees personal autonomy as a right to be exempted from the application of general laws and cultural auton
omy as self-governance arrangements over specific aspects of life (Wheatley, supra note 35, p. 13). Still
other definitions of personal and functional autonomy can be found in the Typology of Frowein and Bank
for the Council of Europe: DH-MIN (2000) 1, pp. 19-22.
48 Heintze, supra note 42, pp. 13-14. However, Sanders has claimed a right to autonomy for territori
ally concentrated minorities, see D. Sanders, 'Is Autonomy a Principle of International Law?', 55 Nordic
Journal of International Law (1986) p. 17; Henrard, supra note 6, p. 275. At the level of governmental
organizations it can be noticed that in two non-legally binding instruments reference is made to a right to
have appropriate local or autonomous authorities (Recommendation 1201 of the Council of Europe's
Parliamentary Assembly) and notice is taken of the fact that specific local or autonomous administrations
corresponding to the specific historical and territorial circumstances of minorities are one of the possible
means to promote their identity (Copenhagen Document, para. 35).
49 For an extensive overview of national examples see K. Myntti, A Commentary to the Lund
Recommendations on the Effective Participation of National Minorities in Public Life (Abo Akademi
Tryckeri, Abo, 2001) pp. 40-60. It should however be acknowledged that the record is mixed, see Ghai,
supra note 1, pp. 22-23.
51 Wheatley, supra note 35, p. 14.

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142 KRISTIN HENRARD
point of concern with territorially bas

tity of ethnicity and territory, so the
ties within minorities need to receiv
autonomies do not carry the risk of
the minority' can exist in so far as th
necessarily exercised in conformity w
munity.52 The concerns raised in thi
to the exercise of group rights and it
members.53 Still, the benefit of non-
that they do not require the concent
certain area.
In view of the abovementioned concerns, more neutral, indirect mechanisms of
providing some measure of self-governance to minorities are preferred. It is often
said that 'government closer to the people' would be more sensitive to the concerns of
the persons concerned, and would be more amenable towards cultural and religious
differences. In this respect, forms of decentralization tend to provide a measure of self
governance (depending on the actual competences) for minorities that are territorially
concentrated in the area concerned,54 while the neutrality of the mechanisms make them
a lot less sensitive and do not trigger the same concerns. Nevertheless, autonomy
normally refers to mechanisms that go beyond mere decentralization. Federalism is a
good example of a mechanism providing a form of territorial self-governance,55 which
benefits minorities if and to the extent that the boundaries of the federated entities
are drawn up along ethnic, linguistic or religious lines. Depending on the level of
competences devolved, federalism provides political and governmental authority
over the region concerned,56 and indirectly to the population group, which forms the
majority in that region.
Finally, it should be highlighted that granting autonomous powers does tend to
carry the risk of abuse of rights of individuals, either members of other groups or
members of the group that do not agree with a certain approach or decision. Hence,
measures of self-governance should go hand in hand with guarantees that in the exer
cise of the powers transferred the human rights (including the right to political par
ticipation) and minority rights of all are fully respected.57
52 Frowein and Bank, supra note 33, p. 21; Ghai, supra note 1, p. 23.
" Henrard, supra note 6, p. 235.
54 W. Kalin, 'Decentralized Governance in Fragmented Societies: Solution or Cause of New Evils?',
Paper presented at Conference on Facing Ethnic Conflicts, Bonn, December 2000, p. 3.
55 While in legal terminology the concepts 'autonomy' and 'self-governance' have in general been
treated as synonyms (Hannikainen, supra note 8, p. 79), some authors consider federalism as a mode of
territorial self-governance which is not a form of territorial autonomy because: "federalism the regions
participate actively in national institutions and national policy making, in addition to controlling devolved
subjects within the region. In autonomy, the emphasis is rather on the region's power to control its own
affairs, than on the possibility to participate in national institutions" (Myntti, supra note 49, p. 50).
5' Heintze, supra note 42, pp. 19, 22-23.

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'PARTICIPATION', 'REPRESENTATION'AND 'AUTONOMY' 143
2.4. Participation, Minorities and Minority Protection
It is generally accepted that the protection provided by individual human rights in

combination with the prohibition of discrimination is the conditio sine qua non for
adequate minority protection. The debate is mostly centered around the question
whether additional special minority rights are needed to reach an adequate minority
protection.58 Arguments for such 'special' rights, taking the vulnerable situation and
ensuing special needs of minorities into account, tend to be based on real, substan
tive equality considerations. In so far as these special measures are proportional to
the legitimate aim of striving for real equality, they would not violate the prohibition
of non-discrimination.59
The central question in relation to minorities would seem to be to what extent the
minority situation would require 'special' measures (of protection) in the sphere of
political participation to reach substantive equality. Prior to analyzing the Lund
Recommendations in this regard, it seems essential to discuss the importance of
political participation for minorities in more depth.
It has often been emphasized that political participation is of foundational value
for adequate minority protection, in the sense that it would be an essential instrument
of minority protection. This rather instrumental reading of political participation
underlines its contribution to the protection and promotion of other group interests,
in the sense that it is important for the actual enforcement and realization of these
other rights.60 However, it has also been pointed out that one should not overestimate
the importance of political participation in the sense that it is definitely not sufficient
in itself. Bieber highlights for example that minority rights cannot be short-circuited
by political representation,61 while Yash Ghai argues that an adequate protection of
minority rights is a pre-condition for political participation of minorities.621 would
be the last to argue that minority rights have no independent value in addition to
political participation, but the latter needs to be 'effective'. Hence, it matters how
58 See inter alia the book edited by J. Raikka, Do we need minority rights? Conceptual Issues (Martinus
Nijhoff, The Hague, 1996); N. Canefe, 'Sovereignty without Nationalism? A Critical Assessment of
Minority Rights Beyond the Sovereign Nation-State Model', in M. Sellers (ed.), The New World Order:
Sovereignty, Human Rights and the Self-Determination of Peoples (Berg, Oxford, 1981) p. 108;
M. Galenkamp, 'Speciale Rechten voor Minderheden? Een Commentaar op Kymlicka's Multicultural
Citizenship', 22 Recht en Kritiek (1996) p. 215.
" See inter alia General Comment 23 on Article 27 of the HRC, para. 6 in fine; European Charter for
Regional and Minority Languages, Article 7, paragraph 2 in fine; FCNM Article 4, paras. 2 and 3.
60 F. Bieber, Balancing Political Participation and Minority Rights: The Experience of the former
Yugoslavia, (ECMI, Flenbsburg) pp. 2-3; Henrard, supra note 6, pp. 271-272. See also P. Thornberry,
'Images of Autonomy and Individual and Collective Rights in International Instruments on the Rights of
Minorities', in M. Suksi (ed.), Autonomy: Implications and Applications (Kluwer, The Hague, 1998) p. 110.
61 Bieber, supra note 60, p. 6. Contra Tholen and de Vries who seem to conceive these as two alterna
tive models of inclusion?: B. Tholen and M. S. de Vries, 'The Inclusion and Exclusion of Minorities in
European Countries: A comparative Analysis at the Local Level', 70 International Review of
Administrative Sciences (2004) pp. 458—462.
62 Ghai, supra note 1, pp. 10-11.

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144 KRISTIN HENRARD
'effective' participation is perceived,63

that representation does not necessar
process (presence versus influence).
Whatever can be said about the instr
obviously has an important symbolic v
inclusion and exclusion and hence also
words of Max van der Stoel: "particip
minorities feel that they are active an
there is general agreement about the
and minority protection, which explai
ous international organizations.65 Nev
that not much more has been achieve
ommendations and typologies, which
detailed minority standards. This im
lack of political will as of the crucial
each case.66
2.5. Democracy and Minority Protecti
Finally, a few remarks on the relation

seem in point. While this is at first si
dimension of political participation, e
democracy, more specifically whethe
whether one reads some further subs
respect the jurisprudence of the Euro
through which democracy - understo
mindedness has become the linchpin o
has itself acknowledged the potential f
this understanding of democracy whe
ply mean that the views of a major
63 See also F. de Varennes, Towards Effective P

E/CN.4/Sub.2/AC.5/1998AVP.4, pp. 5-6.
" Speech by the OSCE High Commissioner
Protection, Integration and Stability in South-E
OSCE.
65 Reference can be made to Fernand de Varennes Working Paper for the UN Subcommission, the study
of Frowein and Bank for the Council of Europe and of course the Lund Recommendations made (by inde
pendent experts) within the framework of the OSCE.
66 Inter alia F. Capotorti, 'Les Développements Possibles de la Protection Internationale des Minorités',
Cahiers de Droits (1996) pp. 247-248; H. Shue, 'Humane Incorporation: The Shape of Acceptable
Options for Relations between Majorities and Minorities', in C. Fried (ed.j, Minorities: Community and
Identity (Springer-Verlag, Berlin, 1983) p. 283.
67 See also T. Barkhuysen, M. Kuijer and R. Lawson, ' Voorzichtig met Straatsburg: Interview met onze
nieuwe rechter Egbert Myjer, 29 NJCM Bulletin (2004) p. 902.

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achieved which ensures the fair and proper treatment of minorities and avoids any
abuse of a dominant position".68
One can also find an opening for minority protection within democracy on the
basis of equality considerations. Indeed, even though the international legal commu
nity does not posit one paradigmatic conception of democracy in the sense of par
ticular institutions, its underlying principles of popular sovereignty and political
equality of all citizens are undisputed.69 This can be understood as striving towards
universal and equal access to power,70 as roughly the same weight should be attached
to each individual.71 Similarly, even though human rights law does not prescribe one
particular electoral system, the electoral system chosen should reflect the genuine,
free expression of the will of the 'people', which is meant to refer to all the citizens,
including minorities.72 This can be interpreted to imply that the legislature should
represent as far as possible the diversity of the society,73 also the ethnic, religious and
linguistic diversity.
By way of conclusion it can be postulated that democracy cannot be equated with
pure majority rule.
"A democratic system of government demands equal respect for all members of soci
ety, and as an ideal should ensure that all interest groups are represented in the leg
islature and/or decision-making processes. Further a democratic system of government
must be tolerant of the political expression and activity of minorities and must take
their interests into account... where decisions are likely to impact upon the minority".74
In this respect reference can be made to a certain type of democracy which realizes
this minority focus virtually completely, namely "consociational democracy".75 The
four main characteristics of consociational democracy are: coalition government,
proportional representation (in parliament), minority veto and segmental autonomy.
68 Young, James and Webster v. UK, 13August 1981, Eur. Ct. H.R.,<echr.coe.int>, para. 63.The Court
also said explicitly in Dudgeon v. UK (22 October 1981) that the characteristics of a democratic society
include respect for the rights of the individual and certainly those of minorities.
69 Wheatley, supra note 8, pp. 235-236.
70 Wissenburg, supra note 19, p. 3.
71 Ibid., p. 11. Nevertheless, as Wheatley points out: "each vote must count equally but there is no
requirement that each vote should have equal effect in the determination of the outcome of political
power" (Wheatley, supra note 35, p. 8).
72 This can be deduced from the formulation of both Article 25 ICCPR and Article 3 of AP I of the
ECHR.

74 Ibid., p. 247.
75 A so called deliberative understanding of democracy also provides potential for minority protection
purposes since it demands that States do not simply concern themselves with the question as to whethe
free and fair elections take place but also with issues of political equality, representation and regard fo
the views and interests of minorities (Wheatley, supra note 25, p. 511). This understanding of democracy
also has implications for the composition of the civil service (ibid., p. 515), and sometimes even requires
regimes of autonomy, more specifically when it is not possible to accommodate difference in shared inst
tutions (ibid., p. 520).

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146 KRISTIN HENRARD
While the first three are more conce

ticipation and ensure the representati
liament, government and more gene
obviously geared towards the self-go
minorities/segments/ethnic groups.76
3. The Lund Recommendations: A Closer Look
The starting point regarding participation rights of minorities is that very few inter
national provisions address this matter explicitly. Consequently, the Recommendations
had to be developed mainly "through composition and deduction from the breadth of
other related international standards".77 This explains why the Lund Recommendations
do not go beyond sketching the broad framework, rather than prescribing precise
standards. This approach is furthermore perfectly in line with the more general
position that the specific circumstances of each case should determine the actual
minority standards to govern it.78 Myntti notes in this regard that "the Lund
Recommendations are generic in the sense that they provide only few concrete
examples as to how they should be implemented in practice".79 This confirms that the
Recommendations merely sketch the broad framework, the broad principles, while
the possible ways of implementing the principles that are taken up in the Lund
Recommendations are not exhaustive. What matters is that the principles are
respected, the exact choice of means to reach this result is secondary, and are left to
the discretion of the States so that they can chose the method most suitable to the
specific circumstances.80
It was already pointed out that the Lund Recommendations distinguish two
dimensions of 'participation' (in addition to addressing general principles and methods
of guaranteeing these dimensions of participation). When studying carefully all the
Lund Recommendations it can in any event be argued that they reveal a concern for
the inclusion of minorities, for the consideration of their interests,81 which in turn can
be understood in terms of a right (of minorities) to be taken seriously. The Explanatory
76 A. Lijphart, Democracies in Plural Societies: A Comparative Exploration (Yaie University Press,

New Haven, 1977) pp. 36-37. See also A. Eide, 'Approaches to minority protection', in A. Phillips and
A. Rosas (eds.), The UN Minority Declaration (Abo Akademi Tryckeri, Abo, 1993) p. 89.
77 Packer, supra note 5, pp. 36-37.
78 L.B.Sohn, 'The Rights of Minorities', in L. Henkin (ed.), The International Bill of Rights: The
Covenant on Civil and Political Rights (Columbia University Press, New York, 1981 ) p. 271. Kinga Gall
states in relation to self-governance that the "powers accorded to the different minority self-governments
vary from case to case according to the aims sought. The creation of the various autonomy arrangements
does not follow any general pattern; it can be expected to flourish as well as to fail depending on the rel
evant political contexts and practices" (Gall, supra note 8, p. 6).
75 Myntti, supra note 49, p. 6.
80 Myntti's Article provides an overview of the actual realization in countries of some of the examples
explicitly stated in the Lund Recommendations.
81 The Lund Recommendations and Explanatory Note, pp. 20-22.

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Note indeed highlights that the involvement which is focused upon with 'participation'
should not only concern an opportunity to make substantive contributions to decision
making processes but should also be reflected in the actual outcome.82 The
Explanatory Note relies furthermore heavily on the principle of real, substantive equal
ity to justify the need for special measures adapted to the specific conditions of the
minorities concerned.83
When considering the first dimension concerning representation, a first question
that comes to mind is what kind of representation is envisaged by the Lund
Recommendations. Both the text of the Lund Recommendations and its Explanatory
Note seem to point to mirror representation, in any event as far as presence in par
liament, government and civil service is concerned.84 Nevertheless the third item of
paragraph 6 seems to adopt a broader vision of representation, in the sense of repre
sentation of ideas, as one of the alternatives to realize that minorities have an effec
tive voice at the level of central government is providing "mechanisms to ensure that
minority interests are considered within relevant ministries, through e.g. personnel
addressing minority concerns". Similarly the Explanatory Note mentions that "spe
cial bodies may also be established to accommodate minority concerns".85 Regarding
participation in the civil service the Explanatory Note remains rather vague and
merely points out that for members of minorities to enjoy all minority rights specific
steps should be taken in relation to the public service to ensure equal access to pub
lic services. This arguably reflects an instrumental value of participation (participa
tion as the way to protect and enjoy minority rights) but does not seem to require that
minorities are actually physically represented in the public service. In contrast, the
Lund Recommendations themselves appear rather outspoken about the need to have
minority members in the public service.86 Strikingly, the Lund Recommendations
also take up a matter which seems at first sight a question of language rights
(addressed in the Oslo Recommendations), namely "the provision of public service
in the language of the national minority".87 The Explanatory Note does not clarify this
issue, but arguably 'effective' communication with public servants is considered an
important aspect of participation in public life.
The Lund Recommendations naturally reflect a special emphasis on elections. The
Explanatory Note emphasizes, what was already mentioned before, that States have
considerable latitude in choosing the specific manner in which they organize their
82 The Lund Recommendations and Explanatory Note, pp. 22, 30. See also Packer who underscores that
"government should reflect the will of the people", implies that steps be taken so far as practicable to accom
modate the minority's will in an effort to respond to the whole situation (Packer, supra note 5, p. 38).
83 The Lund Recommendations and Explanatory Note, pp. 18, 21, 26.
84 Lund Recommendations, para. 6 and Explanatory Note, para. 6 as they refer to 'minority represen
tation' and 'minority participation', 'allocating to members of national minorities cabinet positions' or
even 'reserved seats'. See Lund Recommendations and Explanatory Note, pp. 23-24.
85 Lund Recommendations and Explanatory Note, p. 22.
86 Lund Recommendations, para. 6, item 4 refers to "special measures for minority participation in the
civil service".
87 Lund Recommendations, para. 6, item 4 in fine.

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148 KRISTIN HEN RARD
electoral system as long as it avoids discrimin

is provided. Regarding the electoral system it
minority representation and influence.89 No s
and it is merely indicated that various sy
Explanatory Note does not clarify this much
should aim for as much representativeness as
a preference for mirror representation, which
that the geographic boundaries of electoral d
representation of national minorities.91
It was already pointed out that these Lund
further elaborated and developed in the G
Participation in the Electoral Process. Even t
analysis, they are still most appropriately ch
measures to improve minority participation in
clear standards.
Finally, the Lund Recommendations promot
consultative bodies, which are meant to opera
authorities and minorities.92 The Recommen
ence for some kind of institutionalization of
their insistence that governmental authorities
Interestingly, the Lund Recommendations on
position of such bodies should reflect their p
communication and advancement of minority
it highlights the purpose of these advisory b
minorities voice should not merely be heard b
also be taken into account and should influ
Recommendations do not give clear clues on
should be like. The Explanatory Note in this
information as it explicitly states that to be "ef
of minority representatives and others who can
arguably reflects the relevance of a serious de
that would voice the minorities ideas, while t
minority protection, further constraining th
88 Lund Recommendations and Explanatory Note, p. 23;

89 Lund Recommendations and Explanatory Note, para.
90 Lund Recommendations and Explanatory Note, p. 2
" Lund Recommendations and Explanatory Note, para
92 Lund Recommendations and Explanatory Note, para
93 It should be acknowledged that the Explanatory No
bodies can be standing or ad hoc. Lund Recommendatio
94 Lund Recommendations and Explanatory Note, para

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though at first sight it cannot be said that the need for consulting minorities consti
tutes a recurrent or dominant theme in the Lund Recommendations, its central theme
of inclusiveness arguably presupposes such consultation and dialogue.97 In any event
the Lund Recommendations on advisory and consultative bodies clearly emphasize the
importance of dialogue and consultation, which is somehow institutionalized.98
A few critical remarks can in any event be made in relation to this set of Lund
Recommendations. The title itself reveals a predominant focus on participation in
public life, while scant attention is given to participation in economic, cultural and
social life of the State. Arguably this imbalance is less striking in the later standards
that have developed99 and particularly in view of the current focus on the right to
development and minorities with its strong economic focus.100 Notwithstanding that
these Recommendations transcend mere consultation, there does not seem to be a
serious concern for providing a measure of control through veto or special majority
requirements for certain essential issues.
Regarding the self-government dimension of the Lund Recommendations, para
graph 15 starts by alerting minorities and public authorities to the fact that both sides
have to acknowledge the need of a combination of shared rule and self-rule. Regarding
questions for which "central and uniform decisions" are required one should keep in
mind what is developed in the preceding part, namely that minorities should have a
say and should be taken seriously. The Lund Recommendations obviously promote
that minorities have the necessary opportunities to exercise authority over matters
affecting them.101 What this exactly means and 'should' entail concerning competences
of the self-government arrangements depends on the specific circumstances, including
the size of the minority group and the geographical distribution of its members.102
Consequently, also in this respect the Lund Recommendations provide an overview
of possible approaches to reach this goal, without being prescriptive to States or even
indicating clear preferences. The Explanatory Note does underscore the fact that it
is "well-established" that education is a shared competence (both for territorial and
97 See inter alia Lund Recommendations and Explanatory Note, p. 25.

98 See also Myntti, supra note 49, p. 28 who identifies a concern for participatory democracy, and the
related importance that all voices should be heard.
99 E.g., Article 15 FCNM.
100 See inter alia various publications of the Minority Rights Group International in this respect (all to
be downloaded from <www.minorityrights.org>, including R Justino and J. Litchfield, Economic
Exclusion and Discrimination: The Experiences of Minorities and Indigenous Peoples, p. 32; M. E.
Salomon and A. Sengupta, The Right to Development: Obligations of States and the Rights of Minorities
and Indigenous Peoples, p. 76; S.C. Janet, Development, Minorities and Indigenous Peoples: A Case
Study and Evaluation of Good Practice, p. 60; R. Riddell, Minorities, Minority Rights and Development,
p. 48. See also the Decision of the UN Working Group on Minorities in March 2004 to focus discussions
on minorities and development (and action taken by governments for incorporating minority issues in
activities to reach the Millenium Development Goals).
101 Lund Recommendations, para. 19 and Explanatory Note, p. 27.
102 See inter alia Lund Recommendations, paras. 15.3, 19 and 20 and Explanatory Note, p. 30. See also
Frowein and Bank, supra note 33, p. 24.

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150 KRISTIN HF.NRARD
non-territorial arrangements)103 in v
whole104 and the minorities concerned.1
In general, the Explanatory Note see
approach, in the sense that the higher
more autonomous powers would be app
territorial arrangements tend to be usef
The non-exhaustive list of possible com
tain mostly to cultural matters in the
cation, and names. These concern all i
the identity of national minorities".108
especially useful for groups that are ter
at a certain level of government. In th
is much broader and also touches on q
ment, natural resources, local policing,
It seems that here the goal stretches be
ally concerned with "responding more ef
In any event, it seems that the autonom
(should be limited by) the obligations
sary powers to ensure justice and equa
respect both the Lund Recommendati
the institutions of self-governance mu
the autonomous authorities have the
rights of all persons within their juris
'minority within a minority'.114
By way of conclusion it can be said t
providing easy, clear-cut solutions (sc
reference point (if not exactly guideli
103 Lund Recommendations and Explanatory

104 States would have a legitimate interest that
standards and that all population groups on its
105 Minorities have the legitimate interest to t
identity to the new generation.
106 Lund Recommendations and Explanatory N
109 See also Myntti, supra note 49, p. 60. Cf. F
and Representation of Minorities, E/CN.4/Sub.2
to federal systems and non-federal territorial au
to increase effective participation and represent
111 Ibid.
112 Lund Recommendations and Explanatory Note, p. 31.

113 Lund Recommendations and Explanatory Note, para. 16.
114 Lund Recommendations and Explanatory Note, para. 21. See also Frowein and Bank, supra note 33,
pp. 19 and 21 ; Myntti, supra note 49, p. 41.

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problems of reconciling and accommodating diversity within the states".115 Indeed, the
broad goals and the ultimate limits of self-governance arrangements are highlighted
against the background of a condensed overview of positive practice in the field.
4. Reflections in the Supervisory Practice under the FCNM
In the mean time, much has been written about the Framework Convention for the
Protection of National Minorities (FCNM), its typical characteristics and the overall
supervisory practice. The focus here will be on the extent to which aspects of the Lund
Recommendations feature or are reflected in the supervisory practice. Notwithstanding
the fact that the FCNM stipulates that the Committee of Ministers of the Council of
Europe has the final responsibility in this regard, the importance of the opinions of
the independent expert body, the Advisory Committee (AC) is now undisputed.116
Indeed, the Committee of Ministers has taken on the habit of following the opinions
of the AC and even referring back to them for further detail."7 Hence, the focus of
this analysis will be on the opinions of the AC.
By way of introduction it can be highlighted that there are certain obvious paral
lels between the text of the Lund Recommendations and the FCNM. It was high
lighted that the Lund Recommendations do not contain strict standards but rather
provide broad principles for which several alternative mechanisms are suggested.
Similarly, the FCNM is a framework convention, which sets broad objectives, leav
ing the States (at first sight) considerable discretion how to reach these objectives."8
Both the Lund Recommendations and Article 15 FCNM stipulate "effective" par
ticipation of national minorities, which is not unexpected as the FCNM is one of the
sources of inspiration of the former."9 The key question then seems to be how this
concept "effective" participation is understood? The text and Explanatory Note of
the Lund Recommendations were analyzed above and certain indications about how
"effective" participation is understood were identified. The following analysis will
reveal if not complete synergy, at least broad similarities in the practice of the AC.
The advantage of the AC is of course that it is working on periodic reports of specific
States, which implies that it looks at concrete cases. Consequently, more concrete

116 See also G. Oberleitner, 'Monitoring Minority Rights under the Council of Europe's Framework
Convention', in P. Cumper and S. Wheatley (eds.), Minority Rights in the 'new 'Europe (Martinus Nijhoff,
The Hague, 1999) pp. 88-83; G. Pentassuglia, 'Monitoring Minority Rights in Europe: The
Implementation Machinery of the Framework Convention for the Protection of National Minorities -
With Special Reference to the Role of the Advisory Committee', 6 I.J.M.G.R. (1999), p. 417.
117 For a detailed discussion of this monitoring practice see inter alia K. Henrard, 'Ever Increasing
Synergy towards a Stronger Level of Minority Protection between Minority Specific and Non specific
Instruments', to be published in the European Yearbook on Minority Issues 2003/4.
118 Inter alia H. Klebes, 'The Council of Europe Framework Convention for the Protection of National
Minorities', 16 H.R.L.J. (1995) p. 93. See also Verstichel, supra note 17, pp. 1 and 17.
119 See Lund Recommendations and Explanatory Note, p. 16.

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152 KRISTIN HENRARD
guidance can be offered, of course with

of the Framework Convention and its p
means.120
It was already highlighted that the basic principle underlying all Lund Recom
mendations is arguably the need for inclusion in the sense that the voice of minorities
should be heard and be taken seriously. Even though there is no explicit emphasis on
dialogue and consultation in the Recommendations, it can be argued that this inclu
sion and need to hear the minorities voice121 obviously implies some kind of consul
tation and dialogue. As will be highlighted below, dialogue and consultation with
minorities is in any event a central theme in the supervision by the AC.122
4.1. Consultation as a Central, Recurrent Theme
When reading through the opinions of the AC, its emphasis on the need to consult
minorities on all the issues addressed in the FCNM is hard to miss. Even though this
consultation seems at first sight only a first step of the 'representation dimension', it
is of more central importance and is also relevant for the scope and impact of auton
omy regimes. Furthermore, the AC's vision about consultation undeniably gives away
its approach to broader participation issues and therefore merits further discussion.
The central importance of consultation and even involvement of minorities in rela
tion to policies of (direct or indirect) relevance to them, can be explained by its dou
ble effect of enhancing integration of minorities while strengthening their identity.123
In terms of the framework developed above, consultation would be one of the
weaker forms of participation, albeit a direct mode (in the sense that members of
minorities are qualitate qua involved). This can be related to the fact that the FCNM
leaves it to the discretion of the States by what means they reach the broad goals of
the Convention. Nevertheless, the AC does express its preferences about how this
consultation should take place. It has for example indicated that when an advisory
body exists, like a Council of National Minorities, it should be consulted on all
issues affecting minorities AND reasons should be given when its advise is not fol
lowed.124 Other suggestions that are made by the AC include its emphasis on the need
for ALL minorities to be consulted or to be represented in the advisory bodies, etc.
The consultations and dialogue between authorities and minorities should be as
inclusive as possible, and also the smaller minorities or minority organizations
should be heard.125 While this inclusive approach is to be welcomed, considerations
120 Verstichel, supra note 17, p. 17.

121 AC, Opinion on Norway (2002), para. 61 where the AC indicates that a consultative council on minor
ity issues which only consists of government representatives is not sufficient because a consolidated struc
ture for minority representatives is missing. The point the AC makes here is that the minorities themselves
(also) need to be consulted. Note, all AC reports and opinions are available at <www.coe.int/T/E/
human_rights/minorities/> visited on 10 March 2005.
122 See inter alia AC, Opinion on Armenia (2002), para. 100; AC, Sweden (2002), para. 19.
123 AC, Opinion on Moldova (2002), paras. 39-40.
124 AC, Opinion on Bulgaria (2001), para. 66.
125 AC, Opinion on Moldova (2002), para. 89; Opinion on Armenia (2002), para. 80; Opinion on
Norway (2002), para. 61; Opinion on UK (2001), para. 100.

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of substantive equality and the related proportionality principle and sliding scale
approach would seem to favor a greater voice for the more numerous minorities. Both
the Lund Recommendations and the structure of the FCNM would be open to this
reasoning. This substantive equality ratio clearly comes through in the point made by
the AC that also scattered minorities should be consulted, and this could require
adapted mechanisms in comparison with the ones for territorially concentrated
groups.126
The AC encourages States to go beyond mere ad hoc consultation and to make
dialogue a regular, preferably institutionalized feature.127 The AC goes as far as sug
gesting that the working methods of these advisory bodies/structures should be adapted
so as to make the participation more 'effective'.128 Finally, it should be highlighted that
the AC, in addition to underlining the general, central importance of consultation of
minorities, points to certain areas in which consultation would be absolutely essential.
This would seem to be the case not only for issues pertaining to language and edu
cation, closely related to the identity of minorities, but also for questions of financ
ing, of spending of allocated funds.129 Obviously the AC is of the opinion that
effective participation should also have ramifications in the financial sphere.
It should also be highlighted that the AC shows itself to be increasingly demand
ing about the effectiveness of the participation, in the sense that it should be mean
ingful, which would imply that the ideas of the minorities are taken seriously (see
below). The AC appears to consider consultation as the bare minimum and often
goes beyond mere consultation, urging States to coordinate and cooperate on minor
ity policies with the minorities concerned.130 'Cooperation' seems to indicate that the
minorities' opinions should be reflected in the actual outcome.
Sometimes, the AC does not give indications of what exactly is missing regarding
consultation, or how it should be improved to contribute to effective participation. In
relation to Armenia the AC pointed out that the current mechanisms for dialogue and
consultation are insufficient as they do not entail effective participation.131 However,
the Committee does not specify what more is needed. Most opinions do contain
more explicit information about the AC's vision of what "effective" participation
implies, or its preferences in this regard.
The AC clearly considers the participation of minorities in public life as essential
for their integration without forced assimilation. In this respect, it wants serious con
sideration for the needs and concerns of minorities. Overall, it seems that the
Committee's expectations go beyond mere advisory powers for minorities, the exact
scope of which each time depends on the specific circumstances. In relation to
126 AC, Opinion on Germany (2002), paras. 64-05.

127 AC, Opinion on Lithuania (2003), para. 104; Opinion on Albania (2002) para. 69. See also
Verstichel, 'Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities',
pp. 28-31.
128 AC, Opinion on Azerbeijan (2003), para. 74; Opinion on Ukraine (2002), para. 72.
129 AC, Opinion on Ukraine (2002), para. 34; Opinion on Norway (2002), para. 31.
130 AC, Opinion on Germany (2002), para. 27; AC, Opinion on Romania (2001), para. 31.
131 AC, Opinion on Armenia (2002), para. 111.

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154 KRISTIN HENRARD
Cyprus, the AC notes that the religiou

sentatives in the House of Parliament m
tatives have only advisory powers.132 S
be found in its opinion on Austria wher
ers of the advisory councils of national
competences would not be enough.
As the AC develops its practice it seem
pretation of the FCNM generally and A
Serbia Montenegro the Committee indic
national minorities are increasingly inv
uation of activities of relevance to the
mere consultation. Moreover, it transpi
the perceptions of national minoriti
improved mechanisms for involving
minorities concerned question the actua
tain opinions the AC actually indicates
minority concerns,136 which seems even
come. In its opinion on Lithuania of 20
cooperation with those minorities conc
their needs concerning mother tongue ed
minorities' right to be taken seriously i
minority representatives in consultatio
knowledge and respect for the minorit
reviews the actual reality and does not
not participate sufficiently and that m
the fact that there are no representativ
few in local and regional bodies, while
clearly reflects a lack of participation of
4.2. Focus on the Public Affairs Compo
By way of a second general remark it

focuses on the public affairs component
social and economic life is largely negl
the literature on minority participatory r
dimension is hardly ever touched upon
1 AC, Opinion on Cyprus (2001), para. 41.

1 AC, Opinion on Austria (2002), para. 69.
1 AC, Opinion on Serbia Montenegro (2003), p
AC, Opinion on Serbia Montenegro (2003), pa
1 AC, Opinion on Moldova (2002), para. 89.
AC, Opinion on Lithuania (2003), para. 69.
Inter alia AC, Opinion on Armenia (2002), par

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economic dimension. 1 he latter is mostly confined to problems ot high degrees ot

unemployment among minorities, and especially the Roma. The analysis of the AC
in this respect is furthermore confined to substantive equality reasoning as it uses in
relation to Article 4 FCNM.140
The Lund Recommendations address the economic, social and cultural dimen
sions of participatory rights of minorities only marginally (see the formulation of
Lund Recommendations 15, 18 and 19). Hence, the question arises whether the AC
is more uneasy and careful in this regard because there are few spelled out recom
mendations in this respect or whether the Lund Recommendations do not refer much
to these other participatory dimensions because they were at the time of formulation
not (sufficiently) addressed in the relevant source material. Indeed, this broader par
ticipation conception only appears in Article 15 FCNM and Article 2(2) of the UN
Minorities Declaration. It is to be expected that in line with the growing focus on the
right to development and minorities,141 at least the economic and social dimensions
of participation could gain ground, which in turn could lead to suggestions for pos
sible improvements of the Lund Recommendations.
4.3. Preference for Organisational Guarantees for Participation
A third general remark about the practice of the AC in terms of participation of

minorities is its clear preference for structural guarantees for that participation, also
beyond the consultation/dialogue dimension. In its opinion on Albania the AC high
lighted that the government should give further consideration to ensuring "necessary
structural guarantees - either electoral or consultative" to enable the effective par
ticipation of minorities.142 One could ask oneself whether the AC actually considers
electoral guarantees on a par with consultative guarantees? In a way, this could be
seen as an acknowledgement of the limited actual impact of having a few represen
tatives in electoral bodies.
This preference for structural guarantees for participation can be considered a

reflection in the broad sense of section IV of the Lund Recommendations, which
aims at the entrenchment, the solidification of the participation arrangements.
4.4. AC 's Neglect of Certain Lund Recommendations Versus its Attention

to Other, Additional Relevant Issues
When studying the various opinions of the AC, it becomes clear that certain Lund
Recommendations receive little or no attention, while other issues are addressed that
are not taken up in the Lund Recommendations. The latter have obvious connota
tions with or repercussions for participation of minorities and could lead to sugges
tions for improvements of the Lund Recommendations.
140 Ibid., pp. 31-32.

141 For references to various Articles on the right to development related to minorities, see supra note 100.
142 AC, Opinion on Albania (2002), para. 72.

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156 KRISTIN HENRARD
The question of language use by public

Recommendations is not really focuse
However, this does not mean that the AC
evant for participation purposes. Since t
Article 10 FCNM, it is understandable th
of that Article. On the other hand, the A
tic requirements to stand for elections, w
a negative impact on effective participati
to be implicit in paragraph 7 of the Lund
minorities should have the right to stand
tique in terms of participation is further
Human Rights Committee and the ECHR
also indicates that language requirement
eral not be too demanding.145 This is mo
nomic life, and hence does not feature
Recommendations.
Despite the fact that the Lund Recommendations on elections are further elabo
rated in the Guidelines to Assist National Minority Participation in the Electoral
Process, the AC rarely makes comments on electoral systems of contracting States.
This can partially be explained by the fact that States are granted a broad margin of
appreciation by international law when establishing electoral arrangements for par
liamentary representation.146 Nevertheless, when the Committee addresses electoral
systems it reveals its preferences, guards over the actual realization of minority par
ticipation in this regard and urges States to take the necessary measures to improve
de facto representation of minorities in the electoral bodies.147 The AC welcomes for
example exemption of electoral thresholds for minority political parties,148 as well as
guaranteed representation of minorities in parliament.149 When the AC notes a
de facto under representation of minorities in parliament, it advises States to adopt
the necessary measures to reverse this situation.150 In its opinion on Ukraine, the AC
notes with dismay that the new electoral law does not, in contrast to the old one,
include guarantees that constituency borders are drawn so as to ensure that minori
ties are represented.151 In other words, while the AC does not go as far as saying that
this should be reversed, it clearly shows that it welcomes adapted constituency
boundaries aimed at "effective" participation for minorities. Nevertheless, sometimes
143 AC, Opinion on Estonia (2001), para. 55.

144 See the discussion on Podkolzina v. Latvia by the Eur. Ct H. R. and Ignatane v. Latvia by the HRC
infra.
145 AC, Opinion on Estonia (2001), para. 60; Opinion on Azerbeijan (2003), para. 79.
146 Inter alia AC, Opinion on Hungary (2000), para. 49.
147 See also Verstichel, supra note 17, pp. 20-21.
148 AC, Opinion on Germany (2002), para. 63.
149 AC, Opinion on Romania (2001), para. 65.
150 AC, Opinion on Armenia (2002), para. 77.
151 AC, Opinion on Ukraine (2002), paras. 69-70.

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the Committee can be criticized for not expressing clearly enough its actual evalua
tion of a certain situation. For example, after having noticed that the Danish minority
is not represented in the Bundestag and that the German Government has tried to rem
edy this with the establishment of a consultative committee, the AC does not clarify
whether it is in favor of this as a means of remedying a lack of representation in par
liament or whether it merely considers it acceptable as second best. It only indicates that
it is positive that there are at least direct links between the authorities and the minority
representatives, which seems more an acknowledgement of the central importance
attached to consultation structures than an assessment of the election question.
On the other hand, the AC also touches on certain issues that are not, or at least not
explicitly, covered by the Lund Recommendations but that are of obvious relevance
as well for the effective participation of minorities in public life. Arguably these could
be added or made explicit in a future adaptation of the Lund Recommendations.
A first issue concerns the content of citizenship legislation because having citizen
ship enhances and can even be said to be essential for political participation.152
Admittedly, this is a matter which is closely connected to the sovereignty of States
and for which States have generally not been willing to accept far reaching interna
tional commitments. Still, the central importance of the prohibition of discrimination
makes it possible for the AC to underline that governments should make sure that
legislation on citizenship is applied fairly and in a non-discriminatory fashion.153 The
presence of large numbers of non-citizens would cast doubts in this respect, partic
ularly in cases where States break-up and State succession occurs.154 This is an inter
esting example of a question that is addressed by the Guidelines and which arguably
also should be explicitly taken up in the Lund Recommendations themselves.
Secondly, the Lund Recommendations underscore that States should respect the
freedom of association in relation to the formation and activity of political parties.155
While this paragraph explicitly states that this implies the freedom to establish polit
ical parties based on communal identities, it does not address the question of regis
tration requirements for political parties, which could be indirectly discriminatory
for minorities. In this respect, the practice of the AC constitutes a valuable addition
because it clarifies that having very strict requirements regarding numbers of sup
porters and presence in most if not all electoral districts tends to be indirectly dis
criminatory against minorities, particularly when they are scattered. The AC does not
only note this but actually concludes that these requirements should be revised.156
4.5. A Closer Look at the Representation Dimension
The opinions of the AC arguably reveal its conviction that representation of minori
ties in elected bodies should be representation by minorities. In other words or in

153 AC, Opinion on Austria (2002), para. 35.
154 See also AC, Opinion on Lithuania (2003), para. 31.
IS! The Lund Recommendations and Explanatory Note, para. 8.
156 AC, Opinion on Moldava (2002), para. 49; Opinion on USSR (2002), para. 105.

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158 KRISTIN HENRARD
terms of the framework set out above, the

The AC regularly starts by noting that
represented in parliament (or other ele
examine thoroughly all the barriers th
political life158 and to develop mechanis
relation to small and scattered minoritie
It was already indicated that unfortun
make any mention of the possible benef
matters or special majority requirements.
developed an elaborate opinion in this r
depending on the specific circumstan
fundamental issues for minorities coul
demand States to actually grant these v
hint that this should be seriously consid
pation of minorities.
In line with Lund Recommendation 6's
tions in the civil service should be allo
erence for mirror representation),161
minority members in the judiciary, the
ice. In its opinion on the UK, the AC even
be set and worked towards.162 Similarly
AC underscores that fair numbers of pe
fact be recruited and employed, if neces
In its opinion on Romania the AC pro
tions of symbolic inclusion and legitima
minorities in the police could help to c
The question of linguistic requirements
is also addressed by the AC in its opinio
of bilingual requirements for public
demand that these requirements be rem
problem through the provision of extra
how the AC walks a tight rope between
while making constructive suggestion
minorities in public life.
157 See also Verstiche!, supra note 17, p. 24.

158 AC, Opinion on UK (2001), para. 94.
159 AC, Opinion on Poland (2003), para. 86.
160 AC, Opinion on Germany (2002), para. 65.
162 AC, Opinion on UK (2001 ), paras. 94-100; O
Montenegro (2003), para. 103.
163 AC, Opinion on Cyprus (2001), para. 43.
164 AC, Opinion on Romania (2001), para. 40.
I6! AC, Opinion on Moldova (2003), para. 63.

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Other examples of these strong recommendations by the AC can be found in the

opinions in which the AC expresses its concern that too few members of advisory
bodies on minority issues would belong to minorities, and invites States to adapt the
appointment process accordingly.166 The Committee does not go as far as spelling out
the actual methods to be used but gives clear indications of the goal to be reached.
Similarly, in its quest to improve actual minority participation in advisory govern
ment structures on minorities, it suggests various alternatives that could be used in
this respect (procedures which would enable minorities to put items on the agenda,
including minority representatives).167 Once again the AC is careful not to make
strict demands that could be considered as excessively curtailing State discretion
while sending clear signals about its preferences.
4.6. A Closer Look at the Self-governance Dimension
In view of the fact that the AC has not developed thematic or general comments and
has confined its opinions to evaluations of the periodic State reports, it is not sur
prising that the bulk of the opinions in relation to Article 15 pertain to the represen
tation dimension of participation. The majority of contracting States do not have
elaborate autonomy arrangements. The Advisory Committee does not go as far as
demanding that autonomy be granted to certain groups in order for them to obtain
"effective" participation. Nevertheless, the AC obviously welcomes and even
encourages self-governance arrangements168 and notes more generally the benefits of
forms of devolution for the preservation and development of the culture of popula
tion groups within States.169 In this broad sense the opinions of the AC reflect the
Lund Recommendations on self-governance, but so far there is no clear reference to
some of the more specific Lund Recommendations in this regard.
However, once a State has decided to grant autonomy to certain population
groups, the AC guards over its effective realization and its overall appropriateness in
the circumstances.170 This would arguably require the competencies to be made con
crete and their exact scope to be clear.171 The AC sometimes clearly indicates that an
autonomous arrangement should include certain competences, for example regard
ing land issues in cases of the Sami parliaments.172 Furthermore, the AC arguably
supports cooperation between national government and minorities as regards the
exact scope of autonomy, particularly when the minorities are not satisfied with the
status quo. This also seems to imply that government should go beyond respecting
166 AC, Opinion on Germany (2002), para. 65; Opinion on Austria (2002), para. 69.
167 AC, Opinion on Moldova (2002), para. 88, Opinion on Austria (2002), para. 69, Opinion on Poland
(2003), para. 89.
168 AC, Opinion on Finland (2000), para. 47; Opinion on Denmark (2000), para. 36; Opinion on Italy
(2001), para. 61.
169 AC, Opinion on UK (2001), para. 37.
171 AC, Opinion on Ukraine (2002), para. 32.
172 AC, Opinion on Finland (2001), para. 50. See also AC, Opinion on Sweden (2002), para. 63.

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160 KRISTIN HENRARD
the autonomy as granted, depending on t

AC does not go as far as making strong d
by public authorities but it expresses its
then a mere 'say' in public life.
Overall, it can be maintained that the prac
reflects the broad strokes of the Lund R
inclusion of minorities and the minoritie
require regular, systematic consultations
cific parallels can be identified, such as the
for minority political parties. Furthermore
of minorities in parliament, governmen
sense. While both are premised on the ex
ize the broad goals or on the choice of th
benefit of addressing specific country sit
its suggestions.
5. Reflections in the Supervision of Ot

ICCPR, ICESCR, CERD and ECHR
While the International Covenant on Civil and Political Rights (ICCPR) contains one
minority specific provision, namely Article 27 which happens to be the most basic
provision on minority rights in international law, the International Covenant on
Economic, Social and Cultural Rights (ICESCR), the International Convention on
the Elimination of All Forms of Racial Discrimination (ICERD) and the ECHR are
not minority specific. Nevertheless, as I developed more extensively elsewhere,173
increasingly the supervisory practice of these conventions reveals a minority focus.
5.1. The International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social and Cultural Rights (ICESCR)
Article 27 ICCPR is formulated in a very general fashion that does not give much
clear content to minority rights, and definitely does not contain explicit participation
language.174 Nevertheless, several of the Human Rights Committee's (HRC) views in
response to individual complaints in terms of Article 27 have underlined the impor
tance of consultations with minorities. More specifically, the HRC considers the
occurrence of consultations an important factor in the balancing process to decide
whether a certain interference with rights of minorities amounted to a legitimate lim
itation or a violation of Article 27.175
173 Henrard, supra note 117.

174 Article 27 ICCPR: "In those States in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community with the other members of their
group, to enjoy their own culture, to profess and practice their own religion, or to use their own language".
175 Henrard, supra note 6, pp. 183-185; Wheatley, supra note 25, pp. 523-524.

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Regarding Article 25, it has been argued that "although the Article does not mention
minorities . . . where a minority is not represented or under-represented in national
political processes, either because of their small numbers or because of systematic
exclusion, special processes and structures for political participation must be devel
oped to respond to the spirit of Article 25".176 This can be interpreted as an acknowl
edgement that in certain circumstances minority specific, or in any event special,
measures are needed to ensure that members of minorities can effectively enjoy their
Article 25 right to participate in public affairs.
When reviewing the opinions of the HRC in terms of Article 25 ICCPR, not that
many relevant ones can be identified. Ignatane v. Latvia (25 July 2001) however can
be related to Lund Recommendation 7, more specifically its reference to the right to
stand for office without discrimination. This Lund Recommendation does not men
tion explicitly that certain linguistic requirements can amount to a disproportionate
restriction of the right to participate in political life but it clearly also encompasses
these issues. In casu, a Latvian national of Russian origin was struck of the candi
date list for local elections because she did not have the requisite proficiency in
Latvian. She did have a certificate testifying that she had reached the required high
est level of proficiency but the State Language Centre had submitted her to a second
examination without the normal procedural guarantees. These procedural flaws
entailed the disproportionate limitation. It can already be noted here that a similar
case was brought before the ECHR, which lead to a similar outcome.
Even though the Lund Recommendations do not address referenda, they can be
equated to electoral systems since referenda are a form of direct democracy, while
elections are inherent to indirect democracy. In this respect the HRC opinion in
Gillot et al v. France (25 July 2002) regarding the regulation of a referendum on the
exercise of self-determination by the people of New Caledonia, should be discussed.
The main issue is the requirement of non-discrimination in relation to the right to
vote as underlined in Lund Recommendation 7. The Committee uses its general non
discrimination criteria and decides that the distinction made to give only a right to
take part in referenda to "persons with sufficiently strong links with the territory
whose institutional development is at issue" is objective177 and reasonable.178
When considering the HRC's review of State reports in terms of Article 25
ICCPR, not many comments can be found regarding equitable representation in
elected bodies of minorities. The Human Rights Committee focuses especially on
women in this respect.179 The Committee does touch on several Lund issues in its
reviews of periodic State reports. In line with the practice of the AC, the HRC under
lines the importance of consultations with the representatives of indigenous peoples,
particularly on policies of distribution of lands.180 Similarly, the HRC seems in favor
176 Ghai, supra note 1, p. 8.

177 HRC, Gillot et al v. France, paras. 13.6-13.6.
178 HRC, Gillot et al v. France, paras. 13.14-13.17.
179 HRC, Concluding observations on Hungary (2004), para. 9; Concluding Observations on Albania
(2004), para. 11.
180 HRC, Concluding Observations on Columbia (2004), para. 20.

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162 KRISTIN HENRARD
of more then mere consultation in the

be taken seriously and should participa
The Committee also touches on v
Recommendations in its review of per
its views in Ignatane, it welcomed th
requirements to stand for elections w
once again in line with the AC practi
guistic requirements for employment
tion of Lund Recommendation 6, item
on Namibia in the sense that the HRC
guage is recognized may discriminate
the administration of public affairs.182
Finally, it needs to be acknowledged
a number of reflections on the Lund R
or autonomy. The HRC does not actua
arrangements in order to obtain an a
sons. However, once States do grant f
critically reviews the appropriatene
Sweden, the HRC encourages the Stat
Sami parliament can have a significant
affectingtraditional lands and econom
HRC confirms the underlying theme o
should have more than a mere say ov
HRC has furthermore the same advanta
specific cases and thus can assess th
minorities in light of the specific circ
In contrast to other dimensions of min
ing language and education, the revie
not contain many statements that can
Recommendations. In terms of Article
the Committee does underline the ne
indigenous peoples prior to the implem
affect their lives.184 Obviously, this t
minorities to be taken seriously. Furth
Lund Recommendation 6, item 4 feat
the right of minorities to use their lan
181 HRC, Concluding Observations on Surina

182 HRC, Concluding Observations on Namib
183 HRC, Concluding Observation on Sweden
184 CESCR, Concluding Observation on Colu
185 CESCR, Concluding Observations on Eston
(2003), para. 28; Concluding Observations on S
(2001), para. 24.

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'PARTICIPATION', 'REPRESENTATION'AND 'AUTONOMY' 163
5.2. The International Convention on the Elimination of All Forms of Racial

Discrimination (ICERD)
Although the International Covenant on the Elimination of All Forms of Racial

Discrimination may not be a minority specific instrument, it has been acknowledged
to be of special relevance for minorities by the Committee supervising its imple
mentation.186 This might explain the fact that it pays considerable attention to the sit
uation of minorities. The Committee on the Elimination of Racial Discrimination
touches in numerous ways on 'Lund' issues and its practice reveals considerable par
allels to the practice of the AC.
Article 5 of the Convention obliges State parties to guarantee the enjoyment of
civil, political, economic, social and cultural rights and freedoms without racial dis
crimination. Most of these rights are elaborated in the ICCPR and the ICESCR.187 Of
special relevance to the focus of this contribution is Article 5(c) on political rights,
and in particular the reference to the rights to participate in elections, to vote and
stand for elections on the basis of universal and equal suffrage, to take part in gov
ernment as well as in the conduct of public affairs at any level and to have access to
public services. The focus in ICERD is each time on the non-discrimination aspect,
which is of special relevance to minorities, non-discrimination being the conditio
sine qua non of adequate minority protection.188 Various Lund issues are obviously
relevant in this respect and the CERD actually addresses several of these.
First of all, it should be highlighted that the central theme of inclusion is also taken
up here through a focus on consultations with the minority groups concerned on issues
of particular relevance to them. Typical examples of the latter concern education in the
mother tongue, measures to be adopted to prevent the extinction of a language, and the
possible distinction in State policy between linguistic and national minorities.189
In line with the Lund Recommendations, the CERD wants minorities to have
more than a mere say.190 For example, in its concluding observations on Ghana the
Committee wants to be informed about the actual results achieved which seems to
indicate that the voice of the minority should be taken seriously.191 Furthermore, the
CERD also emphasizes the need to be inclusive in terms of which minority groups
to consult.192 In line with Lund Recommendations 12 and 13 the CERD welcomes
advisory bodies on minority issues. While the Committee does not seem to have
186 The Concluding Observations of the CERD often refer to minorities, as can be gleaned from the ref
erences below.
181 CERD, General Comment no. 20, para. 1.

188 Henrard, supra note 6, pp. 8-11.
189 CERD, Concluding Observations on Mauritania (2004), paras. 20 and 22; and Concluding
Observations on Albania (2004), para. 14.
190 CERD, Concluding Observations on Kazakstan (2004), para. 12; Concluding Observations on
Ghana (2003), para. 21.
191 CERD, Concluding Observations on Fiji (2003), para. 16.
192 CERD, Concluding Observations on Fiji (2003), para. 16 and Concluding Observations on Ghana
(2003), para. 21.

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164 KRISTIN HENRARD
concerns about the actual composition of

impact and functioning.193
Following Lund Recommendation 6, item
representation of minorities in Parliament.
ror representation and expresses its prefe
Slovene authorities to take further meas
small?) are represented in Parliament.194
are also taken up by the Committee. It ad
representation) of minorities in all State in
the civil service/administration, the army
take special measures in order to obtain s
tation of minorities in the various public in
over the effective inclusion of all the grou
Committee also encourages the State to re
tion of minorities and to integrate the diffe
Regarding election systems, the Commi
interpretation of election laws in Cote d
between ethnic and religious groups.197
question does not give an indication ab
changed but obviously an electoral law sh
preferences (directly or indirectly). This c
and its emphasis on the need to guarantee
to vote without (ethnic) discrimination. T
on Mauritania its concern about the possib
which is clearly reminiscent of Lund Re
Few concluding observations of the C
autonomy or consociational democracy an
self-governance are hardly reflected in t
national regulations do put such mechanism
supervisory bodies, reviews whether they
are appropriate. In this respect, the Comm
actual control over those issues of partic
land rights for the Sami.199 Furthermor
1,3 CERD, Concluding Observations on the Czech

on Iran (2003), para. 14.
194 CERD, Concluding Observations on Slovenia (
195 CERD, Concluding Observations on Kazak
Tajikistan (2004), para. 12; Concluding Observa
Observations on Fiji (2003), para. 18; Concluding O
Observations on Slovakia (2004), para. 3.
196 CERD, Concluding Observations on Argentina
197 CERD, Concluding Observations on Cote D'Iv
198 CERD, Concluding Observations on Mauritan
199 CERD, Concluding Observations on Fiji (2003
(2003), para. 90.

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encourages, for example, the authorities to find an adequate solution regarding the
decision-making powers of the Sami people in agreement with the latter.200 This
appears to reveal that the Committee envisages more than mere consultation of
minorities in the decision-making process about the actual scope and content of the
autonomy regime.
The CERD, just like the other supervisory organs analyzed so far, also addresses
issues that are relevant to participation in public life but that do not feature in the
Lund Recommendations. The Committee is very critical about certain citizenship
requirements, which it considers to be indirectly discriminatory for minorities. It fur
thermore encourages States to grant election rights in local elections to non-citizens
to improve their integration and to facilitate the process of obtaining citizenship in
general.201 Finally, the Committee also touches on issues that pertain more directly
to participation in economic affairs when it is critical about very demanding lan
guage requirements for employment in the private sector, which may lead to dis
crimination against minorities.202
5.3. The European Convention on Human Rights
The ECHR is also not a minority specific convention. Furthermore, the supervisory
organs of the Convention were initially clearly reluctant to consider claims by
minorities, let alone to find violations of the Convention.203 Gradually, however, the
European Court of Human Rights has developed certain lines of jurisprudence with
considerable potential for minority protection purposes.204
The Article, which is most relevant regarding participation in public life, is Article 3
of the first additional protocol to the ECHR. This Article demands States to have free
elections at reasonable intervals by secret ballot. Relatively early on this provision
was recognized to imply a subjective right to vote. Nevertheless, it may be clear that
it covers only part of the broader participation concept as it does not mention any
thing about representation in parliament, government, civil service, the judiciary, nor
about advisory bodies or self-governance questions.
A few so-called Lund issues have been addressed in the jurisprudence of the Court
(and the now defunct commission on human rights): the electoral process as a means
to facilitate participation of minorities (Lund 7), the administration of linguistic
requirements to stand for elections (Lund 7), and the protection of political parties
based on communal identities (Lund 8).
When considering the possibilities and constraints for minority protection mech
anisms in terms of the electoral system under the ECHR, it should first of all be
200 CERD, Concluding Observations on Norway (2003), para. 90.

201 CERD, Concluding Observations on Latvia (2003), paras. 12-13.
202 CERD, Concluding Observations on Latvia (2003), para. 9.
203 Henrard, supra note 6, pp. 69-71, 141-146; C. Hillgruber and M. Jestaedt, The European
Convention on Human Rights and the Protection of Minorities (Springer Verlag, Köln, 1994).
204 G. Gilbert, 'The Burgeoning Minority Rights Jurisprudence of the European Court of Human
Rights', 11 HRQ (2002) pp. 736-80; Henrard, supra note 117.

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166 KRISTIN HENRARD
pointed out that Article 3 requires that ele

they ensure the free expression of the will
the concept 'people' is interpreted is rath
potential on the basis of the Article in que
both the European Court and Commissi
impose a particular election system. The s
determine whether or not elections entaile
ple.205 In Lindsay v. UK it was held that ha
State in order to protect the rights of m
crimination as this would have a reaso
Moureaux207 the Court even seemed to ind
on the basis of criteria like belonging to an
an obligation for the State to take the spec
devise special measures to ensure an equit
Notwithstanding these promising decision
erable importance to the existing constitut
and Clerfayet v. Belgium to the extent th
about its limitations in terms of the existi
The Commission has also found that in a sp
ward a certain amount of signatures fo
amount to a violation of Article 3 of the f
be argued that this holding was very much
requirement was considered to be a legitim
were serious enough. This might turn out
especially in view of the recent openin
discrimination.
As regards the administration of linguistic requirements to stand for elections, the
ECHR's argumentation in Podkolzina v. Latvia is very similar to the HRC's in
Ignatane v. Latvia. Notwithstanding the fact that the Court accepts as legitimate the
setting of linguistic requirements for candidates for parliament, the Court found a
disproportionate interference with the rights under the Convention because of the
administration of this requirement in casu.m Arguably, this judgment sends the sig
nal that States do not have unlimited discretion in the way in which and the degree
to which they impose linguistic requirements for certain functions. This is expected
to strengthen the possibilities for linguistic minorities to participate more fully in the
political life of the State (in which they reside). Regarding the third point, namely
205 See the wording of Article 3 of the first additional protocol to the ECHR: "The High Contracting
Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which
will ensure the free expression of the people in the choice of the legislature".
206 Lindsay and others v. UK, 8 March 1979, Eur. Comm. H.R., D R. 15, 251.
207 Moureaux v. Belgium, 12 July 1983, Eur. Comm. H.R., D R. 33, 114.
208 Mathieu, Mohin and Clerfayet v. Belgium, Eur. Ct. H. R., 2 March 1987, paras. 52-57.
209 Inter alia X,Y,Z\. Federal Republic of Germany, Eur. Comm. H. R., 18 May 1976, D.R. 5,43.
210 Podkolzina v. Latvia, Eur. Ct. H. R., 9 April 2002, para. 36.

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the protection of political parties on a communal basis, several judgments against

Turkey have amply clarified that the ECHR does not accept that political parties can
be forbidden or dismantled because they refer to a common ethnic minority identity.
Admittedly only very few of the Lund Recommendations are covered by the
jurisprudence of the ECHR. Nevertheless, certainly at first sight unrelated develop
ments pertaining to substantive equality and positive obligations to differentiate2"
between the careful opening towards the recognition of indirect discrimination (and
hence substantive equality),212 the positive obligations to protect the minority way of
life,213 and the imminent coming into force of the twelfth additional protocol214 could
lead to interesting lines of jurisprudence on a broader set of Lund issues. However,
one needs to caution against predicting too optimistically in this respect in view of
the traditionally lenient attitude towards State justifications of interferences with the
exercise of fundamental rights, and of the considerable weight attached to existing
State structures and election systems.215
6. Conclusion
By way of conclusion it can be said that the supervisory practice in terms of mos
conventions reveals considerable parallels in the way they interpret the participato
rights of members of minorities and the extent to which the Lund Recommendatio
are reflected. However, it should be mentioned that the supervisory practice of t
AC (in terms of the FCNM) - as that of the other supervisory organs - has so far n
come up with general theory (in general comments or recommendations) on parti
ipatory rights of minorities. Their opinions and views are always in reaction to
complaint or a periodic State report and hence per definition related to a specific f
tual situation, which lends itself more easily to further concrete assessments and s
gestions (in comparison to the Lund Recommendations themselves). Still, t
appropriateness of this context specific approach is definitely taken up in the Lun
Recommendations when they indicate that the most appropriate mechanism depend
each time on the specific situation.
The Framework Convention for the Protection of National Minorities is the onl
minority specific, legally binding instrument and hence it is not surprising that i
supervisory practice reflects most closely various Lund Recommendations. In additi
to the various specific Lund Recommendations that are reflected in the AC practic
211 Thlimmenos v. Greece, Eur. Ct. H.R., 6 April 2000, para. 44.
2,2 Kelly and others v. UK, Eur. Ct. H.R., 4 May 2001.
213 Chapman v. UK, Eur. Ct. H.R., 18 January 2001, para. 73.
2,4 On December 17 the threshold was reached whereby the 12th Additional Protocol enters into forc
as the 10th state (as well as the 11th) ratified the Protocol that day. Following the procedural provisio
of the Protocol it will enter into force on April 1 2005.
215 See inter alia Belgian Linguistics case, 23 July 1968, Eur. Ct. H. R., Series A no 6, para. 44;
Mathieu, Mohin and Clerfayet v. Belgium, 2 March 1987, Eur. Ct. H. R., Series A no 113, paras. 52-
See also Henrard, supra note 6, p. 130; Hillgruber and Jestaedt, supra note 203, pp. 26-27.

134.76.2.206 on Thu, 29 Sep 2022 14:51:02 UTC
168 KRISTIN HENRARD
the latter's central theme of consultation

ties and minorities can be related to the
seriously that seems to be the foundatio
The practice of the advisory organs o
share the basic idea of the Lund Recomm
voices should be taken seriously, in the se
a say is not considered to be sufficient
between the Lund Recommendation and
their marked preference for mirror repr
not impose strict requirements on Sta
minorities, once States have opted for ce
do guard over their actual implementati
given circumstances). Finally, various su
relevance to the participation of minoriti
Recommendations. Examples that come
broader participation issues (including th
it not be wise to address these issues one
Lund Recommendations or the developm
216 These similar understandings concerning politic

doctrinal pieces made within the framework of bot
working paper for the UN Working Group on Mi
Minorities Declaration) actually predates Lund. Wh
pation of minorities, most of the Lund topics are a
sively on election systems, he does address the qu
minorities at the general level). Frowein and Bank
November 2000 on the Participation of Minorities
title, this contains a very elaborate typology of me
institutions, very much like the Lund Recommenda

134.76.2.206 on Thu, 29 Sep 2022 14:51:02 UTC

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'Participation', 'Representation' and 'Autonomy' in the Lund Recommendations and their

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'Participation', 'Representation' and 'Autonomy' in the Lund

The effective participation of national minorities in the governance of States emerged

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2. Theoretical Considerations: Setting th

As the Lund Recommendations focus on part

1 See also Y. Gai, Public Participation and Minorities

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self-determination8 which is said to be intrinsically bound up with participatory

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questions of possible veto-power or th

Several conceptual analysis have bee

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of the symbolic power of representation not be underestimated but also issues of

20 A. Phillips, The Politics of Presence (OUP, Oxford, 1995) p. 40.

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In any event, in relation to the repre

27 Guidelines to Assist National Minority

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2.3. Participation - Representation more Broadly

As highlighted by the Guidelines already, questions of participation in public life do not

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consulted, does the government contac

38 Frowein and Bank, supra note 33, p. 15.

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45 Heintze, supra note 42, p. 18.

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point of concern with territorially bas

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2.4. Participation, Minorities and Minority Protection

It is generally accepted that the protection provided by individual human rights in

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'effective' participation is perceived,63

2.5. Democracy and Minority Protecti

Finally, a few remarks on the relation

63 See also F. de Varennes, Towards Effective P

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73 Wheatley, supra note 8, p. 239.

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While the first three are more conce

3. The Lund Recommendations: A Closer Look

76 A. Lijphart, Democracies in Plural Societies: A Comparative Exploration (Yaie University Press,

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87 Lund Recommendations, para. 6, item 4 in fine.

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electoral system as long as it avoids discrimin

88 Lund Recommendations and Explanatory Note, p. 23;

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97 See inter alia Lund Recommendations and Explanatory Note, p. 25.

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103 Lund Recommendations and Explanatory

112 Lund Recommendations and Explanatory Note, p. 31.

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4. Reflections in the Supervisory Practice under the FCNM

115 Packer, supra note 5, p. 44.

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guidance can be offered, of course with

4.1. Consultation as a Central, Recurrent Theme

120 Verstichel, supra note 17, p. 17.

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126 AC, Opinion on Germany (2002), paras. 64-05.

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