CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ INTERNATIONAL LEGAL ASPECTS OF CZECHOSLOVAK MINORITIES and Linguistic Minorities”. 39 (see below). This resolution represents the generally recognized minimum standard for the treatment of minorities because it is not connected with any specific minorities in concrete states. Among the other UN documents dealing at least partially with the minority issues in the post-war period one can mention the Convention for the Prevention and Punishment of the Crime of Genocide from 1948 40 protecting “national, ethnical, racial and religious” groups from intentional physical destruction and guaranteeing the right of the continued existence to members of minorities (while it does not guarantee the continued existence of a concrete minority group). It imposes a variety of obligations upon States with respect to individual criminal liability for the crime of genocide. This Convention instead of working positively for the recognition of minorities concentrates negatively on the punishment of criminal acts directed against a minority group. The first multilateral post-war treaty dealing with minority questions within the framework of the international human rights concept is the International Covenant on Civil and Political Rights adopted in 1966 (hereinafter as ICCPR) and especially its Article 27. 41 This article does not put state parties under the positive duty to promote and support a minority culture, language or religion. The obligation arising from this Article consists of the duty not to interfere in the enjoyment of the minority’s rights. In such a sense Article 27 expressly confirms that persons belonging to the ethnic, religious, or linguistic minorities: “shall not be denied the right in the community with other members of their group to enjoy their own culture, to profess and practice their own religion or to use their own language”. With this respect, Article 27 is the only provision of the Covenant with the typically negative formulation of the individual’s rights. This negative “passive” formulation met with a strong criticism and it was particularly pointed out that the passive approach of States will not ensure the survival of “their minorities”. It was also pointed out that “existence and the development of minorities depend on the active support from their States in order to preserve their cultural, linguistic and religious identity”. 42 Nevertheless, it was Article 27 of the ICCPR that later became one of the inspirations for the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities” (hereinafter as Declaration).The purpose of the Declaration is:” to promote more effective implementation of the human rights of persons belonging to minorities” and more generally to contribution to the realization of the principles of the Charter of the Human Rights and universal and regional human rights instruments. The Declaration sets out the rights of persons belonging to minorities (mainly in Article 2). These rights are set out as the rights of individuals even if they in most cases can be only enjoyed in a community with others. Unlike Article 27 of the ICCPR, the Declaration is yet more explicit in requiring positive action of States with respect to their minorities. It is to be noted that Article 2 of the Declaration uses the term that: “Persons belonging to (…) minorities have the right to enjoy their own culture, religion, using their own language”. The next important article is Article 4 stating that states shall take measures (including legislative and other) to ensure that persons belonging to minority 39 GA Resolution 47/135 of 18 December 1992 Available at: https://www.ohchr.org/EN/ProfessionalInterest/ Pages/Minorities.aspx. 40 Available at: https://treaties.un.org/doc/publication/unts/volume%2078/volume-78-i-1021-english.pdf. 41 Available at: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. 42 NOWAK, M.: U.N. Covenant on the Civil and Political Rights – CCPR Commentary . N. P. Enger Publisher, 1993, p. 507.

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