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Treaty-based monitoring mechanisms and the effective protection of human rights: With special reference to the necessity of introducing a collective complaints procedure within the Framework Convention for the Protection of National Minorities (FCNM)

Jungwon Park 1

1단국대학교

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ABSTRACT

With the entry into force of the Framework Convention for the Protection of National Minorities (FCNM) in 1998, international efforts towards protecting minority rights have entered a new phase. The FCNM is an existing multilateral treaty that deals exclusively with the problem of the protection of minorities. Although the FCNM’s coverage is geographically limited to Europe, it is nevertheless a leading minority rights instrument that has greatly contributed to the shaping of international standards for the protection of minority rights under the contemporary international legal order. Bearing this in mind, this paper concerns itself with the necessity of upgrading monitoring mechanisms for compliance with the FCNM by the state parties in terms of the effective protection of minority rights. In particular, this paper raises the necessity of introducing a complaints procedure within the FCNM monitoring mechanism by drawing on the positive experiences from the operations of complaints procedures under the UN and European human rights treaty-based monitoring mechanisms. How such a complaints procedure is to be introduced and what kinds of procedures (individual or collective complaints) may be necessary are controversial issues. Introducing a complaints procedure also requires an inevitable restructuring of the roles and functions of the Advisory Committee (AC) and the Committee of Ministers under the FCNM system. This paper argues that a radical approach in this matter would be undesirable and even unrealistic in terms of achieving real progress towards upgrading monitoring mechanisms for the FCNM. More than anything else, as the title of the FCNM implies in the expression of the ‘framework convention’, there are many legal provisions within the FCNM that are purely aspirational or programmatic at best, with no direct justiciability. In other words, any attempt to introduce a complaints procedure while ignoring the embryonic state of the development of contemporary international law of minority protection would be very unlikely to succeed in the immediate future. In this context, this paper makes the point that a collective complaints procedure, rather than an individual one, would be more desirable for the protection of minority rights. Although the individual complaints procedure has many merits, this method may not be effective or relevant under the current state of international law (or European law) of minority protection. At this stage it seems more urgently necessary for the Advisory Committee (AC), which has so far played a crucial role within the monitoring mechanism of the FCNM, to possess substantial power, such as the ability to hear collective complaints. Through restructuring the roles of the AC and the Committee of Ministers as constructively as possible with regard to the operation of the collective complaints procedure, state parties to the FCNM would be under greater pressure to comply with the FCNM and thereby pursue the protection of minority rights in an effective way. Furthermore, with a collective complaints procedure, the AC could gradually deepen so-called ‘minority rights jurisprudence’ through the review of collective complaints raised by minority rights-related NGOs. Such productive efforts by the AC could provide a solid foundation upon which an individual complaints procedure might be introduced more smoothly in the long run.

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