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The HCNM’s use of norms

Persuading governments to comply with human rights, including minority rights standards, is integral to the process of preventing the escalation of disputes between governments and minorities and between OSCE participating states. The HCNM, in order to analyse the situations in which she or he is engaged, relies on international standards to which the state concerned has agreed. In this first regard, the applicable norms provide one important analytical framework within which to assess grievances and scrutinize problems, positions, behaviour, and options. As such, the standards are useful in functioning as a barometer for assessing, inter alia, existing and draft policy, law, and administrative practices impacting on issues and tensions involving minorities in the country or countries concerned. They also provide a framework for dialogue and development of specific recommendations to address the source of tensions, as identified by the HCNM. On the basis of OSCE commitments to uphold all relevant standards, she or he may refer to any applicable standard in his or her recommendations regardless of source in order to draw states’ attention to their obligations and support his or her arguments. The range of standards at his or her disposal includes OSCE commitments (notably the Copenhagen Document), UN and CoE treaties, bilateral accords, international jurisprudence, as well as domestic legislation and state practice^0 Reference to existing human rights, including minority rights standards to which the state has voluntarily agreed, also provides the HCNM with a range of possible solutions on the basis of already prescribed norms (sometimes quite specific) and so protects him or her from accusations of arbitrariness or selectiveness. If sometimes general or ‘elastic’—a matter to which we will return—the relevant norms and standards are, of course, to be applied by states taking into account the facts (i.e. context) of the particular situation and within a certain margin of appreciation that allows them to devise the specific method of respecting a standard while maintaining its integrity. Within this overall framework, the HCNM has considerable room to work.21

As Ratner illustrates, the ‘hardness’ or ‘softness’ of a norm or standard has not been the determining factor for the HCNM in deciding which to invoke.22 In elaborating specific country recommendations and arguing for changes in behaviour, successive High Commissioners have not drawn attention to the source of the norm or standard invoked in support of the argument, but have used all those at their disposal in the most convincing way with a view to impact and effect. They have relied upon the notion of ‘international standards’ as an umbrella for the accumulated body of law and practice of the OSCE, CoE, and UN regarding minority-majority relations encompassing varying degrees of ‘softness’ and ‘hardness’. The reliance on soft law goes beyond OSCE documents which, as discussed in section 2, are ‘soft’ in terms of source but possess a significant degree of ‘hardness’ due to their adoption by all OSCE participating states by consensus at high [1] [2] [3]

level as well as the consequences of non-respect or failure to comply. The HCNM has also cited recommendations of the CoE Parliamentary Assembly, for example, as well as thematic recommendations developed by independent experts under his or her auspices, as discussed further in section 4. Such instruments are useful for the specificity of language used and specific behaviour required, not provided by relevant treaties (such as the ICCPR, ICERD, FCNM, etc.) or other instruments.

Where the state is party to a specific convention that directly addresses the issue at hand, this will be referred to and usually forms the basis of the argument, but the HCNM also often makes arguments based on a treaty that the state has not signed or ratified. The HCNM has been strategic in the emphasis placed on different standards even within a particular instrument and on the (legal) argumentation, depending on the international commitments of the state involved and the dynamics of the situation at hand. For example, in engaging with the Latvian government on the use of the Russian language, the HCNM focused on incompatibilities of draft legislation with provisions on freedom of expression and association in the ICCPR and ECHR, although the draft also contravened the rights of minorities to use their own language under Article 27 of the ICCPR. This was a deliberate and pragmatic strategy to achieve a result (respect for the linguistic rights of ethnic Russians in Latvia) in a political climate where many simply refused to accept the Russians’ status as a minority based on the size of the population and former status as a (former) occupier. It was not the hardness or softness of the standard, but its character as a universal (rather than minority-specific) provision that was instrumental in this case.

It is notable that the HCNM is not only concerned with adherence to minimum requirements of hard and soft minority rights standards. The High Commissioners problem-solving approach, which responds to legitimate interests, grievances, and claims articulated by all parties, has often required the HCNM to look for solutions beyond what is provided in the (‘hard’ and ‘soft’) minority rights standards to fulfil ideas of good governance within a democratic society and in order to develop tailored solutions that work for all involved. This was the case, for example, with regard to Albanian minority demands for access to higher education in their own language in Macedonia. In this case, the HCNM clarified for both parties—publicly and privately—the content of applicable standards which ensure for minorities the right to establish educational institutions in their own languages, but not to public funding or automatic recognition of diplomas. He also clarified for the government their obligations regarding the recognition of institutions, which cannot be denied solely on the basis of the language used. The clarification provided the framework for discussions between the parties which could then move beyond dispute over applicable rights towards finding a practical solution in line with the standards. Norm clarification and subsequent practical suggestions for a solution—and mobilization of international actors to fund that solution—made possible the move from the abstract to the concrete.23 [4]

In this way the HCNM acts as a ‘normative intermediary’, translating general— and frequently vague and imprecise—standards into specific recommendations for application in specific situations.24 As the Macedonian example illustrates, in the process of bringing law and policy at national level into conformity with international standards, norms may be invoked, explained, or reinterpreted to render them applicable to the specific circumstances of the case in question and behaviour is modified to fit the norms as a result. This facilitates actual change in real situations, bringing norms and standards to life with tangible meaning for all concerned and, thus, making them matter.

  • [1] J. Packer, ‘The OSCE High Commissioner on National Minorities’, in International HumanRights Monitoring Mechanisms: A Textbook on How to Petition and Lobby International Organizations;Essays in Honour of Jakob Th. Moller, ed. G. Alfredsson (The Hague: Kluwer Law International,2001): 641-56.
  • [2] J. Packer, ‘Making International Law Matter in Preventing Ethnic Conflict: A Practitioner’sPerspective’, in ‘Colloquy, Minority Disputes in Europe: Toward New Roles for International Law’,Journal of International Law and Politics vol. 32 (2000): 716-17.
  • [3] S. R. Ratner, ‘Does International Law Matter in Preventing Ethnic Conflict?’, in ‘Colloquy,Minority Disputes in Europe: Toward New Roles for International Law’, Journal of International Lawand Politics vol. 32 (2000): 591-697.
  • [4] For a full discussion of the HCNM’s role as a translator of norms in this case see: Ratner (2000): 625-9.
 
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