Manual for Sustainable Return
Part III - Selected Policy Framework Documents - International Standards on Minority and IDP Rights
Under international standards, refugees and internally displaced persons have the fundamental human right to return to their homes, irrespective of their ethnicity, in either a spontaneous or an organised and assisted manner. These standards form the basis for UNMIK's minority rights protections and the return policies for Kosovo.
UNMIK looks to several key documents to determine applicable standards forminorities, returnees, and IDPs. UN human rights instruments, guiding principles on the treatment of IDPs, General Assembly Declarations, and the regional European standards all apply under UNMIK regulations and under the Constitutional Framework. Below is a list of the major documents that guide the returns and reintegration process. Each document is accompanied with a description of relevant provisions and applications.
International "Bill of Human Rights"
Each of the three documents that make up the international Bill of Human Rights stresses that the rights contained therein are to be enjoyed equally without discrimination. Article 2 of the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR) each contain a general prohibition against distinctions made on the basis of several factors, including race, colour, sex, national origin, religion, language, property, social origin, or birth. Additionally, the ICCPR (article 27) makes special provision for the protection of minorities' rights to enjoy their culture, to profess and practice their own religion and use their own language. These standards have been interpreted to require governments to take active steps to guarantee and facilitate the equal enjoyment of these rights. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) ICERD sets out the wide-ranging obligation of states to eradicate discrimination in all of its forms that occurs within society or that manifests itself as part of governmental policy. Under the Convention, states must take steps both to eliminate discriminatory practices, and policies. Article 2 envisages that governments must review their own policies and legislation to ensure that it complies with the general principle of anti-discrimination and equal enjoyment of human rights. Additionally, ICERD obliges states to protect the right of minorities to access public services and institutions as well as to promote their equality in private organisations. In order to achieve or develop any of these goals or to develop, special measures such as affirmative action programmes are to be taken to ensure adherence to the principle of non-discrimination. Article 5(d),(e), and (f) of ICERD elaborates on the nature of the rights guaranteed (political or economic, social, and cultural) and enumerates essential services to which minorities must have access. Among these itemisations, the rights to freedom of movement, return, nationality, property, housing, free choice of employment, education and public/social services most closely relate to the needs of Kosovo's minority communities and potential returnees. Enjoyment of these particular liberties also forms the core concept of sustainability and how to judge an acceptable return environment. The expert Committee on the Elimination of Racial Discrimination has issued a clarification of Article 5, noting that minority IDPs and refugees in particular must have the right to return freely, under conditions of safety, and with equitable access to public services, including property reclamation and rehabilitation assistance (General Recommendation XXII, 1996).
UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities
This General Assembly declaration calls upon states to take affirmative steps to protect the existence and identities of minorities and their ability to exercise effectively their rights. It is a useful mechanism to justify creation of vigorous government programmes and legislative mechanisms to facilitate equal enjoyment of rights. Considering the situation of minorities in Kosovo, Article 2 most notably protects the rights of minorities to participate effectively in society, public and cultural life, policy-making on minority issues, and inter-ethnic/intra-ethnic relations. Article 4 states that appropriate measures must be enacted to allow minorities to participate fully in economic progress and development. Such guarantees are the benchmarks for the successful reintegration of Kosovo communities into society as a whole.
States also have an obligation to create the environment through which ethnic, religious and linguistic minorities can express their distinctive characteristics to the extent allowed by international law. Facilitation of this principle includes the provision of an educational curriculum that teaches minority-specific history, cultural traditions, and languages.
European Convention on Human Rights and Fundamental Freedoms (ECHR) and other European anti-discrimination standards
In much the same way as the UDHR and ICCPR, the ECHR guarantees minorities' equal enjoyment of rights through a general non-discrimination provision (Article 14) and through the recently adopted Protocol 12. Where the European minority rights standards differ from those provided under UN human right instruments is in the promulgation of European Union directives that clarify what obligations exist under those general provisions. In particular, Council Directive 2000/43/EC on implementation of the principle of equal treatment between persons irrespective of racial or ethnic origin mandates several expansive protections for minorities, including requirements for the adoption of remedial and enforcement mechanisms.
Of the concepts advanced by this Directive, equal treatment within society extends to indirect discrimination that may occur in the public or private sectors. Among the areas that this definition affects are procedures of the government and private enterprise for access to employment, hiring practices, business ventures, employment conditions, vocational training, retraining, education, health care, housing, and social security.
UN Guiding International Principles on Internal Displacement
These principles act as the UN's guide to governments for the provision of humanitarian assistance, development aid, and protection to the internally displaced. Based on international humanitarian law and human rights standards and endorsed by the Commission on Human Rights, these principles entitle IDPs to the assistance needed for them to return, resettle and reintegrate safely in their communities of origin.
Furthermore, these principles enunciate the key elements that will allow for sustainable returns and a humane standard of life while they remain displaced.
As regards minorities, the principles place the onus on state authorities to provide equitable humanitarian and protective assistance to IDPs without discrimination of any kind, including on the basis of race, ethnic, national, linguistic, religious, gender or political identity (Principle 4). This non-discrimination principle is especially important in terms of the obligation of states to facilitate the freedom of movement of IDPs
(Principle14) and safe access to sustenance, shelter, appropriate clothing, health care, and sanitation services
[Principle 18(2)]. Principle 25 clearly indicates that it is the Government that must take responsibility for the provision of such humanitarian assistance. Section V of the Guiding Principles deals specifically with the obligation of government authorities to establish the conditions for safe and voluntary returns. This obligation requires that special efforts (Principle 28) be made to reintegrate resettled IDPs into society without discrimination (Principle 29). Such efforts at resettlement must include aid to returnees to regain their property lost during the displacement [Principle 29(2)].
UN Convention Against Discrimination in Education
As guaranteed in other international instruments, this Convention seeks to ensure that education remains accessible to all children regardless of minority status or gender. It protects not only the rights of minorities to maintain separate educational facilities or curricula; it also permits equal access to public funding, scholarships, educational standards, and national education policy initiatives. This Convention supplements and supports provisions laid out in the Convention on the Rights of the Child, Article 28, which also stipulates that education should be accessible equally to all children.