Accountability challenges for minorities’ (equal enjoyment of) fundamental rights: vague norms, states’ sovereignty and legitimacy concerns of international courts1

Kristin Henrard

Chapter 13 in Research Handbook on Accountability for Human Rights Violations, 2025, pp 215-238 from Edward Elgar Publishing

Abstract: The specific concerns and rights of persons belonging to minorities have been a driving force in the development of fundamental rights, as was visible, inter alia in the provisions in the peace treaties concluding religious wars in the Middle Ages, the focal points of the earliest catalogues of human rights, and of course the rights provisions in the minorities treaties of the League of Nations. When catalogues of minority specific rights (following the rationale of Article 27 ICCPR) were developed from the 1990s onwards, states’ sensitivities and related concerns to safeguard national constitutional identities translated into numerous ‘escape’ clauses, offering states seemingly boundless discretion. Furthermore, the supervision did not extend to complaints procedures but was confined to periodic state reporting. The combination of ‘weak’ norms and ‘weak’ supervisory mechanisms did not augur well for any meaningful level of accountability for states in relation to minorities’ rights. This chapter will explore two trajectories that have realized some accountability for states as duty bearers still. On the one hand, the supervision of minority-specific rights slowly but surely nudges states towards higher levels of commitment, through constructive dialogue and ingenious follow-up procedures. On the other, general human rights are being interpreted in light of minority protection provisions, going hand in hand with a reduction of states’ margin of appreciation. Nevertheless, the chapter also exposes noticeable divergences depending on the identity markers concerned (race, language, religion).

Keywords: Minority specific rights; General human rights; The right to respect for identity; Substantive equality; State discretion and the margin of appreciation; Council of Europe; ECtHR; FCNM; Advisory Committee; CJEU; HCNM; UN treaty bodies (search for similar items in EconPapers)
Date: 2025
ISBN: 9781035306923
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