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Interview with Prof. Fernand de Varennes, United Nations Special Rapporteur on Minority Issues

Interview with Prof. Fernand de Varennes, United Nations Special Rapporteur on Minority Issues

You’re coming from a French-speaking part of Canada. Was this a determining factor in deciding your future academic career as minority language scholar? 

That is true, I belong to a part of Canadian French-speaking minority, I am originally from New Brunswick which is in Eastern Canada and is a bi-lingual community, and I do have an appreciation for the challenges and difficulties and understanding of coming from a minority. So that certainly helped in shaping my research interests. Although it was afterwards, when I was doing my master’s in law, that I discovered that in relation to the protection of minorities in international law, particularly around language in the 1990s was little understanding, not a lot of research from a legal point of view. So that’s where I saw that there is an opportunity to contribute to the development of a better understanding what language rights are for minorities. That is from that point in the beginning of nineteens that this interested fully developed.

Recently, you’ve become Special Rapporteur. How one becomes a Special Rapporteur and what does this role entail? What are the priorities of your mandate?

Special Rapporteur is one of many special procedures in the United Nations now. There are more than 40 Special Rapporteurs and independent experts within the various human rights procedures of the United Nations, and most of these are, in fact, elected positions. They are elected by member-states who sit on the Human Rights Council, which is a specific body within UN structure dealing with Human Rights issues. So as with any kind of direct electoral procedure, people can be nominated by their own countries or self-nominated, even. Then, the Human Rights Council proceeds with evaluating of applications and candidates, and then, based on their expertise and background, a short-list is prepared by a special committee of the Council and then the member-states of the Council proceed to a vote.

In terms what the role involves – the Special Rapporteur on minority issues is the independent expert within the UN system that focuses on addressing, specifically, the issues around minorities. They are the human rights issues, and we need to remember that we are dealing with human rights issues of minorities and especially linguistic, ethnic and national minorities.

During the mandate, I deal with complaints – individuals can complain directly to the Rapporteur. We proceed also with scientific research and analysis of key issues around minorities. We participate as well in series of educational and promotional activities to better understand and promote the understanding of the rights of minorities.

It is quite wide-ranging, and I think need to emphasize that Special Rapporteur is a very flexible mechanism – you do have other mechanisms, such as the treaty mechanism under the Covenant on Civil and Political Rights, but these mechanisms tend to be more formal in spirit and there are delays and other situations. Special Rapporteur, on the other hand, is independent person, I am not an employee of the UN, I’m not getting paid by the UN, I’m not getting paid, period. And so, it provides more independence and ability to address issues which other parts of UN can’t necessarily do in the same way.

For how long this office exists?

There have been two other Special Rapporteurs, and each predecessor served for six years, two 3-year mandates. I am during my first year of my first two-year mandate. My mandate started on the 1st of August 2017. It’s been a for few months only. And in fact, the position was not always called the Special Rapporteur, it begun as the position of independent expert and only during the last mandate it became a Special Rapporteur office.

What are the priorities of your mandate as a Special Rapporteur?

Considering the priorities of my mandate, I have presented them when I addressed the General Assembly of the United Nations in New York in October 2017. There are four key priority areas I will be focusing in.

First is the relationship between minorities and conflicts. As I have said in my lectures, most of the conflicts in the world are intra-state. Majority of these conflicts revolve around ethnic and religious issues. As a Special Rapporteur, I identify the protection of rights of minorities in conflicts and study of minority issues as driving factors to those conflicts as a priority.

Another one is the issue of statelessness. As I also mentioned, most stateless people, seventy-five percent, come from minority groups. It is a huge issue around minorities, often involving discriminatory policies with relation to citizenship. As a Special Rapporteur, this is an area which needs to be investigated and I will be the first Special Rapporteur, who will investigate this issue as a priority under his mandate.

Third priority issue is the issue of education. Around the world, once you start scratching the surface it is very easy to see the problems in the countries with educational issues around minorities, especially in terms of the language and the language of education. This will be the focus of my mandate, and it is also the first time that a Special Rapporteur identifies this specifically as a priority.

How you approach the study of a complaint or a report of any disturbing situation?

There is a clear procedure that is established by the United Nations. It is accessible even from the Internet. There are two types of complaints. One is an urgent appeal. Although it is unusual for my mandate, but it can happen, where there is an extremely dangerous or complicated situation that needs urgent attention. If there is such appeal it is possible to intervene directly with the government. For example, there have been calls to genocide against an ethnic minority in Nigeria a few months ago. In that case, myself and other Special Rapporteurs intervened and approached the government of Nigeria to remind the government of its obligations to prevent such crimes to be committed. So, that is one mechanism.

The other one is individual complaints. An individual brings up the situation and describes a violation of minority issues which needs to be addressed. I, as a Special Rapporteur, investigate it, decide whether these issues fall within my mandate. Then, I submit a communication to the government of the involved country. The whole procedure is confidential. Usually, the government has three months to respond. If in three months it does not respond, then I’m free to decide whether I should come out publicly. Usually, after three months, while respecting the confidentiality we will issue at least a notification in our report that there was a complaint against a certain government.

If the complaint is appropriate for the mandate and we get more information from the government, we can issue recommendations and suggestions to ameliorate the situation.

You’re also holding a position of Dean of Faculty of Law in University of Monсton. How hard is to manage two time-demanding roles simultaneously?

Well, to be honest, I don’t manage. What I mean by that is that it is next to impossible to occupy both positions full-time. So, after June I will be setting aside the deanship and will focus on the position of Special Rapporteur. Both are too demanding. Officially, the SR position is not a full-time mandate, in theory, in the UN, we say that you should be able to do that with a third of your time. It is much more than half of your time.

Have you encountered the specifies of minority rights issues in Russia during your research or your work as Special Rapporteur?

Well, first, I must state stat I’m in my private capacity here in Moscow, this is not an official mission or activity as Special Rapporteur. I was invited in my private capacity as an expert to participate in several lectures and seminars, and as such I cannot comment on any current issues if they have not been addressed to me and subsequently publicized by my office.

It is true that I have touched upon the Russian situations in my early scholarly work. But, that was more in the general sense, so I would never say that I currently have an in-depth knowledge, especially of the current situation in Russia.

Would you be interested to cooperate with your Russian colleagues?

The answer is a bit general. As any other UN expert from around the world, I think it is important for Special Rapporteur to be able to collaborate in research activities with experts from different parts of the world that are relevant for the mandate and my area of priority. So, in a way, the answer is yes, but with all experts around the world who can help me in my work, and not specifically in Russia.

As Russia is one of the most multinational countries of the world, it is always a hot topic here. What are the key aspects and the basic standards of protection of minorities that should be implemented in all countries of the world, including Russia?

First, yes, Russia is a multinational country, but is you look at, for example, India, which is also a multinational country, has a huge amount of religious, linguistic and ethnic diversity – Russia is a midget compared to India. However, even the constitution of India recognizes a very large number of rights and other measures to protect various minorities, which are quite interesting and quite detailed, they go quite far. So, I think, it is important to understand that Russian situation is unique, but at the same time there are other countries, which should do and do a lot in the field of minority protection.

When we’re talking about protection of minorities, we’re talking about human rights. Defining human rights standards which are applicable to the minorities are the field where we must have a better understanding. I will give you an example which most people will not realize. Perhaps the most important right to protect minorities is the right to non-discrimination.  I think it is important to de-mystify what we’re talking about when we’re talking about protection of minorities and the key thing is to remind people what are the standards, and one of the most important standards is non-discrimination. It affects religious issues, it affects linguistic issues, and this are some of the key aspects as to what are the key standards for protection of minorities.

What are some of the best practices that we as a country can adopt and implement in our protection of minorities?

Of course, every country in the world is quite different and what can be very useful here is to use already-prepared guidelines. One of those guidelines is the Framework Convention on the Protection of National Minorities of the Council of Europe – it is a series of, albeit general, but still, there are provisions which give you a good indication as to what should be in place in terms of protection of human rights of minorities.

The OSCE also has some guidelines, for example, The Hague Recommendations on the Educational Rights of Minorities, which provides a little bit more in detail, specifically in the field of educations, the ways to protect the rights of minorities. This could be very useful. It does give guidelines, or guideposts, directions, that you should be taking as a state. And in addition, just recently, last year, we at the United Nations, in the Office of the Special Rapporteur, under the guidance of my predecessor Special Rapporteur Ms. Rita Izsák-Ndiaye, a special report was prepared on the protection of linguistic rights of the linguistic minorities. I was the main writer of this report and this is a practical guide. It came out last April and there is a Russian version available. This paper is much more focused on best practices then on general guidelines.

There could be more such sources available, especially in the narrower topics. But these are reference documents, which are extremely useful when you have a government, which is interested in establishing the adequate protection of the rights of minorities.

As you know, Institute of Education of HSE deals, primarily, with education studies. In your opinion, in education studies, how big should be the role of the legal component, especially human rights?

My background is law, so, obviously, I will say that law is very important in education studies, and human rights law even more so. But let me add, that this not the only discipline that should play a role in, especially in the field of education. Educationalists in the different parts of the world have conducted very interesting research on the usefulness and impact of education that properly addresses the needs of different groups of people, like, for example, minorities, including language, by the way.

What I think would be an excellent contribution, is for the Centre for Education to be able to utilize the legal ability to analyze and apply the existing rules in the fields of education and the right to education and if they could cooperate with educationalists in order to be able to show, for example, the value of education that is appropriate to minorities, including in relations to language. There is fascinating research that is being done, including the regions like Africa and Asia, and here, it would be wonderful if Institute of Education could do something along these lines for Russia. For example, UNESCO in Bangkok has done some wonderful work on the value of education for minorities in their own language. I’m not that sure that that kind of results are well-understood or well-developed here, they haven’t been looked at in different parts of Europe as much as well. If I can be bold enough to make a suggestion, it would be interesting if the skills in law and education could be used here for such topics and show how relevant it is for educational and pedagogical value of education for minorities and as a practical proof of importance of right to education without discrimination.

What are the current “hot topics” in Human Rights studies?

Well, for example, I truly believe that we don’t have a clear understanding of the right to education and to what extent it can be connected to the issue of language of education or the minorities languages as medium of education or the right to learn their own language. I think that it needs to be clarified from the legal perspective.

Another one is the area of hate speech and its relationship with freedom of expression. As you may know, around the world, the victims of hate speech are more often then not, the members of minorities. In most countries, hate speech is directed against the minorities, unpopular minorities, quite often. And in some countries, you will find groups or even governments that will say that freedom of expression prevails, meaning that they cannot really do anything about hate speech. That’s false understanding and a mistake in position. We need clarity on the balance between freedom of expression and protection against hate speech, it should be address how to protect anyone, especially minorities from the hate speech, and still respect the essential freedom of expression in international law. It is problematic, a lot has been done already, still more than needs to be done, and this is also one of the priorities of my mandate, which I haven’t mentioned earlier.

Another big issue is, as always in international law, definitions. Lack of working definitions hinders the ability to protect certain groups from certain human rights infringements. For example, we’re still lacking the working definition of minority in international law. Even within UN there are controversial positions as to what constitutes a minority. I will be working on this issue as part of my mandate, but I’d love to see more research on the topic.

Any insights and for up-and-coming researchers and students in the sphere of human rights?

I would encourage any future researcher from the legal background to focus on the issue of what are the rights of minorities and really focus on human rights of minorities. I always find it surprising that a small number of researchers with a legal background that truly develop this sphere, specifically in the spheres of language and religion. What are, for example, the rights of religious minorities? There are some experts with legal background in Europe, but I must say that I don’t think that there is depth of knowledge and expertise that is needed – its simply not there right now. This is an area which I think is critically important. Without naming a government or a country, there are difficulties in understanding what it means to be secular when you’re dealing with religious minorities. In some countries, which claim to be secular, there are not religiously neutral.

Finally, the language rights of minorities – how many young researchers focus on this, when it is one of the most sensitive issues around the world? Suprisingly, there is very few experts in the sphere. Not enough. There is a niche – I’m going to have to retire in 10 years, so there is so much work to be done! For example, when we’re dealing with the minority like Rohingya in Myanmar– we’re talking about religious minority and a language minority. If you’re talking about ethnic conflicts around the world, quite often those conflicts involve language issues or religious issues and yet we don’t have a huge number of legal experts in those fields. So those are the areas where I feel like there is a need for greater expertise.

Evgeny Puchkov, Research Assistant of the Center for Education Law