Interview with Prof. de Varennes – Part 2

[00:00:00] Dr Miranda Melcher: Hello and welcome to Just Access. Too many individuals and groups around the world today are denied access to justice. This access is vital for making human rights effective and securing human dignity, especially of those in a situation of vulnerability, such as women, children, minorities, migrants, or detainees.

[00:00:24] In this podcast, we speak to academics, international legal experts and human rights advocates about hot topics in international law with the intention of exposing and highlighting situations of structural injustice to explore possible solutions to these issues, aiming to protect and enforce the rights contained in international treaties.

[00:00:45] My name is Dr. Miranda Melcher, and I'm a legal fellow at Just Access. In this episode, I continue my conversation with Professor Fernand de Varennes, who has just finished serving as the UN Special Rapporteur on Minority Issues [00:01:00] and is currently a visiting professor at the Université Catholique de Lyon and the University of Sarajevo.

[00:01:06] Our discussion in this episode builds on our conversation from the previous episode when we discussed the role of Special Rapporteur and some recent trends in this area. In this episode we continue our conversation and think about ways to improve access to justice for minority rights.

[00:01:26] Interview - Part 2

[00:01:26] Dr Miranda Melcher: I'd like to ask about to what extent we have mechanisms to support this, for example, in law. I know there are some gaps and I'm definitely going to ask you about the gaps in a moment, but before we get there, I'd like to ask you about the Convention for the elimination of racial discrimination. Committee, convention, I never remember the exact term, but you know what I'm referring to. We [00:02:00] always use the acronym. 

[00:02:01] This is obviously for a specific type of minority rights and minority protection around race but it has been used for example in Ukraine versus Russia, Qatar versus the UAE, Georgia versus Russia perhaps, but of course I think there may be some questions around how the convention has been used as, part of the case, but maybe it's being used for strategic purposes. Does this help protect minority rights? Does this cause problems?

[00:02:33] Prof. de Varennes: I wouldn't say problems, but it does show, first of all, it does show, and I think I need to respond to your question with this. The concept of race under that treaty is actually wrote fairly large. It does include ethnic differences. And when I read the decision, the judgment of the international court of justice in relation to Ukraine versus Russia, where it talked about language discrimination or discrimination in the language of education involving the Ukrainian minority in Russia, if you will, that did not surprise me because the concept of race is wide ranging enough in the convention on the elimination of all forms of racial discrimination to include ethnic groups. And including ethnic groups really means ethnic linguistic, ethnolinguistic groups also.

[00:03:24] However, having said that, two things about the Convention Against Racial Discrimination. One, it's actually a relatively old treaty. It was one of the 1st Human Rights Treaty, and some of the content is rather anachronistic. It's old. It doesn't really reflect a modern understanding of the prohibition of discrimination.

[00:03:44] And secondly, it does not, and I don't think it could or should be interpreted to include religious minority. That's a completely different animal from ethnic minorities and I think the international  community or bodies such as the International Court of Justice has been able to go just about as far as it can to protect minorities in the recent case of Ukraine versus Russia by the use of that treaty. But what we need is a much more modern instrument and much more modern legally binding document that would clearly protect religious minorities because, and you've given me an opportunity to raise this point. 

[00:04:26] Surprisingly, around the world, religious minorities are actually more and more oppressed. Their human rights actually, increasingly, in the last 20 years also, denied, massive denial of human rights of religious minorities around the world.

[00:04:40] And trying to revert to the Convention Against Racial Discrimination would not work. It's inappropriate as a tool to try to really go in that direction. Hence, really the need for a mechanism that could include a better identification and protection of the rights of religious and other minorities.

[00:04:57] That to me is necessary. It's not sufficient, but it's definitely what is needed in terms of the evolution of the protection of human rights in areas that are absolutely necessary today.

[00:05:11] Dr Miranda Melcher: In fact, I was going to ask, we don't have a treaty in this area. Should we have one? I think you've already answered that, yes, we should. Is there anything further you'd like to say about what you want that treaty to look like?

[00:05:23] Prof. de Varennes: Yeah. Thank you very much. Once again, I think it is absolutely necessary because at the global level, we have not developed sufficient human rights tools to understand what is the scope. Now, the extent of the rights, the human rights of minorities in areas of language, religion, or culture, and to better protect those who are the most vulnerable in the world, we need this kind of detail, this kind of precision.

[00:05:49] So clearly, and perhaps I should just emphasize this point, right now minorities are amongst the most vulnerable and marginalized groups around the world. That's why we need a treaty for minorities, which we still do not have. When you have a group that is particularly vulnerable and marginalized, usually at the United Nations we have a treaty.

[00:06:10] We have a treaty, for example, on migrant workers. We have a treaty on the rights of women, on the rights of children, and so on. The reason we have all these detailed treaties is because these groups are particularly vulnerable and marginalized. Minorities is really the last major group at the global level who haven't that degree of precision that is needed to deal with what are some of the world's main challenges in terms of human rights protection.

[00:06:39] Dr Miranda Melcher: I guess you've given the case for the big picture reasons that we need such a treaty and how this fits into the infrastructure. Perhaps this is a sort of pedantic, nerdy question, but in what ways does not having this sort of treaty obviously impact the rights of minorities, but how does it impact the work of a special rapporteur?

[00:06:58] Does it make that job harder?

[00:07:01] Prof. de Varennes: If we had a detailed treaty would make the job of the special rapporteur, but also of governments easier. I have to explain that because it might sound counterintuitive. There are governments who I can say legitimately or honestly believe, for example, that, minorities inside the country should not be taught in their own language.

[00:07:23] And for linguistic minorities to have your children learn in your own language is extremely important. There are many governments who actually don't understand this at all. They actually think it's much better to assimilate, to get rid of linguistic minorities in their language. And this is a huge problem in many parts of the world, including in Europe right now, surprisingly there are governments who actually are in the process of eliminating education in certain minority languages because they actually think it's the best approach. To ensure what they say, integration. This is absolute rubbish, by the way. It's not true. I'm not going to go into the detail, but I think it would help a lot if we had a global treaty that actually says very clearly in the case of linguistic minorities, as far as is practicable, children should be taught in their own language, because that's where you get the best pedagogical results.

[00:08:17] Children learn better when they're taught in their own language. They learn other languages much better also once they have full literacy and numeracy in their own language first. There are all kinds of studies that show that. So it would make my job easier to explain to governments such as France and Latvia that they simply cannot deny to the Corsican or the Basque or the Breton or the Russian minorities in their countries.

[00:08:43] They simply cannot ban education in minority languages. It's also would make it easier to understand that users of sign languages are actually members of a linguistic minority, and they do have right to access certain public services in their own language. It's a question of equality and access.

[00:09:03] And this is something a treaty, and I did propose and thank you for giving me this opportunity, in my last report to the UN Human Rights Council and UN General Assembly, I indicated that there needs to be, not only that there needs to be a global treaty on the rights of minorities, but I prepared and I presented a rather detailed, proposed draft treaty.

[00:09:27] And for the first time, I Identify users of sign languages as members of a linguistic minority, but also detail what could be the rights of religious minorities in an international legal instrument. Because many governments have absolutely no or little idea. And this is causing trouble and tensions and even contradictions.

[00:09:50] By the way, in Europe, and I'll try to finish with that point, in Europe, the European Court of Human Rights has a completely different approach to the rights of religious minorities than from the UN system. There are a significant number now of decisions coming from the UN Human Rights Committee and judgments coming from the European Court of Human Rights, which are in direct conflict.

[00:10:17] And you cannot reconcile the two. The European Court approach, and I'll be very blunt, and this is somewhat simplistic, but the European Court of Human Rights approach does not respect international human rights standards because they have a, they have different concepts one of which is called the margin of appreciation, which we do not recognize in international law.

[00:10:38] And the margin of appreciation basically says we will trust the government in these areas. That, it's absurd. The government, the authorities, are the one who are accused, and the European Court actually has a policy, an interpretation approach, which says in areas that are sensitive, we're going to believe it's the government.

[00:10:57] We now have this unfortunate situation where the European human rights system is not living up to international human rights standards, particularly in relation to religious and linguistic minorities.

[00:11:10] Miranda: On that point, is there a particular example you could briefly take us through to illustrate the practical real life consequences of this tension?

[00:11:19] Prof. de Varennes: Yes. And this is public also public information. There's a number of cases with the European court, but also the U. N. human rights committee and I do refer to this example in a number of reports. The French legislation, which prohibits, for example, in public spaces, such as public schools, ostentatious religious symbols.

[00:11:41] So any kind of very visible religious sign, including pieces of clothing, okay, like a Sikh turban, for example, is prohibited. And we have situations of children, for example, Sikh students who have been actually banned from attending public schools because they actually wore a turban. I forget the name of the piece of clothing.

[00:12:06] And of course, there are Muslim girls. Who have been wearing a scarf and they have also they're prohibited from attending public schools. There are a number of decisions of the European court of human rights, which says this is absolutely fine in the European context, because states have a wide margin of appreciation in this area.

[00:12:27] And also the European court has said that this is also an issue of secular protection, protecting the secular nature of the French state In international law, we've had the similar cases go to the United Nations Human Rights Committee and the U. N. Human Rights Committee has found the exact opposite of the European court and said, no, this is a violation of freedom of religion. 

[00:12:53] There is no sufficient public interest based on public security or protection of the rights of others that would allow a specific student, who's a Seak, to be excluded from school because the French government actually failed to explain why is this Sikh student not able to wear the turban?

[00:13:13] Why is it a threat to public order or to the rights and freedoms of others? And the French government simply did not provide an explanation. Whereas the European court said it was fine. You don't need to provide it. So, the example of the Sikh is direct and it is interesting because we had one Sikh student in France go to the European court and his brother go to the United Nations Human Rights Committee. So you actually have two individuals from the same families, the same situation essentially and the European court said, no, no violation of human rights. And the UN Human Rights Committee said, on the contrary, this is absolutely clearly a violation of freedom of religion.

[00:13:59] We now have this direct opposition between the two systems. And there are many more examples like that relation to religious minorities.

[00:14:07] Dr Miranda Melcher: Yes, unfortunately there are, but that's a very useful one to illustrate the point. So thank you for taking us through that. Talking a little bit about the big picture before I ask you to look ahead. You've mentioned a few times, obviously, the ways in which minority rights are being eroded and challenged either during or through conflicts and also as ways to perhaps create conflicts or justify conflicts. You also put a strong emphasis during your term, that minority protection can help avoid or defuse conflicts. Can you talk a little bit about how this works and what that goal looks like?

[00:14:45] Prof. de Varennes: Yeah, thank you very much. Once again, it's important to understand the connection. I think the statistics, the data is clear enough that not only a significant, but even most conflicts have minority issues involved and claims or grievances of non respecting the rights of minorities or certain groups, ethnic groups, indigenous groups also feel that they are excluded, that they're not allowed to participate equally in society, in the social economic life of society. 

[00:15:15] And it is quite clear, and there has been a significant report, by the way, that I'll mention very quickly in 2017. The 1st, and I think still the only joint study by the World Bank and the United Nations, called Pathways for Peace, was a report that tried to look at violent conflicts and conflicts around the world and to find ways to prevent conflicts. And if you distill, it's quite a large report, if you distill the main conclusions, basically, and this might sound obvious, inclusion, or to make sure that you address the grievances that are behind many, not all, but most of the world's violent conflicts, is one of the best ways to diffuse or to prevent violent conflicts around the world.

[00:16:04] If most conflicts around the world are internal and involve grievances from groups that feel excluded, usually indigenous peoples and minorities, then the way to prevent conflicts is to address these grievances before you have a situation of a very violent conflict which has erupted. To be very frank, I think If the minority situation of the Russian population in Ukraine had been dealt with more directly and clearly, it would not have been so easy for Putin to raise this, to instrumentalize this as a motive for him to invade the country.

[00:16:43] I'm not saying it's legitimate, but it makes it easier for outside intervention, if you have these grievances that are festering. And I think this is an area where the United Nations and other European institutions also need to do a lot more and need to do a lot better. Conflict prevention involving minorities is not a priority at the United Nations.

[00:17:05] In fact, conflict prevention is not really much of a focus in the activities of the UN, it's conflict resolution, which is the priority. And this, in fact, in my view, is a fundamental error. It is a mistake, because once you have a conflict already erupted, to try to stop it after there are violence, massacres, and so forth, is extremely difficult.

[00:17:31] Priority should always be conflict prevention. Unfortunately, it simply is not. Conflict prevention is actually not a priority activity. There is no major initiative in the United Nations on conflict prevention involving, for example, minorities or just conflict prevention even. And in Europe, I think we've also missed the importance of looking into this because we actually have significant number of conflicts and violent situations in Europe today.

[00:17:58] There's, of course, Ukraine, but we could talk about Kosovo and Nagorno Karabakh and quite a few others that are there at the surface. So we need to be much more careful in this area. In Europe, there had been a number of initiatives in the 1990s, 'cause there was the breakdown of the Yugoslavia.

[00:18:15] There was situation in Kosovo and you had in Europe a number of initiatives such as the creation of the OSE High Commissioner. On my on minorities, which was a conflict prevention tool. That's actually what that was at the USC. The significance and the efforts put around that mandate and conflict prevention has also been diluted.

[00:18:39] I guess you could say over decades in Europe, but the number of conflicts is now increasing again. And I think we need to look in this area, because obviously we're not doing the right thing to try to prevent conflicts around the world.

[00:18:52] Miranda: So given that as a, I think, very important impetus and a very helpful link between these issues that we often seem like they're related to each other, but having someone like you explain exactly how is incredibly helpful. Looking then ahead with that information, what do you think you're most worried about when it comes to minority rights going forward?

[00:19:15] And then as the corollary, what makes you the most hopeful?

[00:19:18] Prof. de Varennes: Yeah, in a very general way, I think it's the weakening of the human rights system worldwide that worries me a great deal. And that is connected to minorities. Those who are the most vulnerable are those that actually might suffer most if you have a breakdown of the the international system to protect human rights.

[00:19:36] And I think we're seeing that now, quite frankly. Just a few days ago, the UN Secretary General Antonio Guterres actually said the world is in crisis. The world is actually now heading towards a number of disasters and where we, the United Nations, are not responding sufficiently. And therefore, I think that's what is necessary is to link all these elements together.

[00:19:59] It's, [00:20:00] I think, sometimes at the United Nations and with think tanks and others the international community, we focus on the trees and we don't see the forest. And the forest is all of these are connected, quite frankly, and quite a number of the areas that I described is weakening the multilateral system, showing that the international community is not focusing in areas where we need to address the impact of misinformation, disinformation, which is scapegoating.

[00:20:30] We have people who are afraid of the of the future. When people are afraid, they find, they try to find scapegoats. Minorities and others are the great scapegoat. We have a rise of hate speech. We have a rise in atrocities, and we are now having a rise in violent conflicts around the world. 

[00:20:46] So I think the UN and the Secretary General kind of call for a reform of the United Nations and the Security Council. We need to do that, but we need to do that in recognition of who in particular are the main targets and victims of hate speech, of atrocities, of calls for genocide, by the way. And this, all of this is actually interlinked and in the initiatives that are in place, and there are a number of initiatives to try to reform the UN to try to deal with what this upsurge in conflicts and also the explosion, the tsunami of hate speech. What is missing and needs to be done is to focus on those that are most vulnerable and that is minorities. And I would add to that indigenous peoples. 

[00:21:33] If we don't do that, we're going to have, we have attempted genocides increasingly we have massive we have massacres, massive violations of atrocities being committed in different parts of the world, which we're not sufficiently talking about.

[00:21:47] The world has become increasingly unstable violent, hateful full of hatred, and we need to actually take steps to strengthen the international mechanisms and architecture to avoid these global disasters, but by focusing where it's most urgently needed. And particularly not only, but particularly, I think, in the protection of the most vulnerable that includes minorities and minority women, by the way, in all of that in a number of areas.

[00:22:17] What we're seeing also is the double marginalization of minority women, which makes them actually much even more vulnerable in situations of conflict, in situations of denial of human rights, including citizenship and so on, and including hate speech. There is, it is almost a bad joke that if you're a minority woman, who is a public figure, you're going to be, it's guaranteed you're going to be targeted for the most hateful, vitriolic speech in social media possible.

[00:22:54] Dr Miranda Melcher: Unfortunately, that does seem quite true. In this [00:23:00] aspect of challenges. Is there anything you're hopeful about?

[00:23:04] Prof. de Varennes: I'm hopeful because we're speaking together and I am hopeful in the sense that we have to understand even the idea of human rights is a relatively historically recent one. It's really emerged after the Second World War and we've come a long way in developing treaties and mechanisms to move forward.

[00:23:25] Currently, I would say that we're, we've gone backwards and I could give the example in specific countries, like the right to access abortions in the United States for women, the right to control their own bodies in the United States has gone backward. The rights of minorities in a number of countries like India has gone backwards and so forth.

[00:23:44] So we have to acknowledge that we have, we're much better equipped today than we were 50 years ago. After the Second World War, 70 years ago, but we must acknowledge that history is never a straight line. There's always going to be back and forth movement and to use an expression, it's in the darkest moments that we have to focus on the light.

[00:24:06] And now's the time to focus on reforming the gaps, the omissions, the weaknesses that we have in international human rights protection, even the weaknesses and gaps at the United Nations as an international organization. This may be the opportunity to do much better and much more because the situation is actually quite dramatic.

[00:24:26] It is extremely serious situation that we're encountering right now with all of these challenges. But now's the time to actually try to do much better and much more. Maybe it has to come from the bottoms up, civil society organizations, public awareness, and trying to actually have better systems to protect the human rights of all people.

[00:24:47] Dr Miranda Melcher: So one of the things we've talked about in terms of what that improvement could look like is the creation of a more specific treaty, and we've discussed what benefits that would bring on the big picture level as well as on the kind of work you've been doing. Are there any other sorts of solutions you would want to direct grassroots work towards trying to achieve?

[00:25:07] Prof. de Varennes: I think grassroots are important to actually push politicians and actually try to influence the United Nations. The United Nations has over decades grown much more receptive to civil society. Human rights organizations that represent minorities, indigenous peoples, and women.

[00:25:23] It's not perfect by any stretch of the imagination. The last conference on the environment was for a lot of people rather disappointing, let's put it that way, but at the same time that's needed. I would say, in fact, that's essential for the international community, that means governments as much as possible, but also the United Nations to move forward much needed reforms.

[00:25:47] For example, maybe it's time to talk again about an international court for human rights. We don't have one. That's a very serious commission. Maybe we need to talk about the veto of the Security Council. Because the veto of a number of the permanent states at the Security Council is preventing the United Nations from taking concrete measures in many of the world's most disastrous situations.

[00:26:15] Maybe it's time also to think about making human rights treaties enforceable. Because most international human rights treaties have no real mechanism to try to ensure, or very weak mechanism, to try to ensure that governments will comply with their obligations. So maybe the time has arrived for civil society to propel some of these reforms that are needed.

[00:26:39] Maybe there ought to be a global coalition or network for the creation of an international world court, a world court for human rights. Maybe there needs to be this kind of civil society movement to have real human rights treaties that can be better enforced than we have right now. Because what we have right now is I won't say it's not serious, but it's not very effective.

[00:27:05] Dr Miranda Melcher: No, absolutely. Is this then where you would direct students or newcomers to this field to where they can best help or what else might you recommend to that group of people?

[00:27:17] Prof. de Varennes: Absolutely. I think what I just said is that we need very serious reform. We need rethinking. We need to actually be audacious, to dare actually look at a world that is much better, that needs much stronger measures in place and extremely profound and serious reforms, like the ones I mentioned. That's where we need perhaps young people and others to really add and work with civil society to move in this direction.

[00:27:44] Because the political leadership doesn't seem to be there right now, but it's when you have ground root movements that sometimes this can drag along or propel, if you will, the political will that is needed also to move forward.

[00:28:00] Dr Miranda Melcher: No, that's very helpful. Thank you. As a final question, we, I've been asking you about the future kind of in really big picture ways, like what are all the big problems in more practical ways, how can people get involved? What would help? I guess maybe on the most personal level, if you don't mind, as a final question your mandate as special rapporteur has recently ended, that's why we've been able to get onto your schedule and ask you these wonderful questions and get the very helpful answers.

[00:28:27] What's next for you?

[00:28:30] Prof. de Varennes: Thank you. I am quite still involved in teaching. My 1st career was in fact, as an academic, and this is continuing. And I actually do still collaborate, I work with a number of civil society organizations, including in Europe, which represents the interests of minorities in a number of European countries.

[00:28:47] Because I think this is an area where I will be able to continue and hope to be able to continue even more to move forward in the development and protection of the human rights of minorities by working with civil society, some civil society organizations and raising awareness. I think it's awareness, but also calling for people to get involved with minority organizations in areas where they have an interest and help build a kind of network or coalition that is much needed to make progress in this areas. In other words I'm still around trying to make contributions in a different way because we absolutely need to move forward in areas of the protection of the rights of minorities in Europe and elsewhere.

[00:29:32] And that means not only myself, but also with perhaps students, which I will be teaching, hoping to encourage them to develop expertise and even become an academic. By the way, right now, and this is a word to anyone who's considering studying law or international relations, minority protection is one of the areas which I think needs to be much better understood. I would encourage young people to consider studying in this area or doing research in this area because there's an older generation that was around in the 1990s, but, they're going away. We're going to need new blood and also we definitely need to have a better understanding and protection and work in these areas, academic and otherwise.

[00:30:19] And that means you. We need you.

[00:30:21] Dr Miranda Melcher: Thank you so much Professor for speaking with us. Stay tuned for future Just Access interviews and do get in touch with us if you have any suggestions for people or topics we should cover.