Violation of Cultural Rights of Kurds in Turkey
| Author | Catherine Pierse |
| Published date | 01 September 1997 |
| Date | 01 September 1997 |
| DOI | 10.1177/092405199701500304 |
| Subject Matter | Article |
Violation
of
Cultural Rights
of
Kurds in Turkey
Catherine Pierse'
Abstract
The Turkish Constitution and legal system are based on the 'overriding principle
of
'national unity' and do not permit the recognition
of
minority rights. This in itself is not
inconsistent with the European Convention which does not protect minority rights as such.
Therefore, while certain restrictions on the private use
of
Kurdish language and other
Kurdish cultural expressions may fall foul
of
the right to freedom
of
expression and the
rights to non-discrimination guaranteed under the Convention, other Kurdish cultural
demands, for example for Kurdish language education would arguably fall outside the
protection
of
the Convention. That minorities may sometimes need positive State assistance
in order to promote their own identity has been recognised in recent minority rights
instruments that have been adopted, inter alia, by the Council
of
Europe. This might
encourage the interpretation
of
certain provisions
of
the Convention as including some
positive State obligations to ensure the rights
of
minorities to express their own identity
in the same way as other Convention rights have been interpreted as requiring positive
State action for their fulfilment.
Introduction
Until 1991 it was illegal to speak Kurdish in Turkey, even in private. Since the lifting
of
the language ban in 1991, the Kurds and other minorities enjoy greater cultural freedom.
Some restrictions on the rights
of
Kurds to enjoy their own culture remain intact however
- such as the prohibition on private Kurdish schools or the restrictions on the use
of
Kurdish by political parties.
It
will be argued here that these restrictions amount to direct
discrimination and are in violation
of
the right to freedom
of
expression as guaranteed
under the European Convention on Human Rights.' The needs
of
Turkey's Kurdish
minority go beyond this however. In order to really preserve their own language and
identity a minority needs some assistance - for example Kurdish language instruction in
schools.
In other areas the European Commission and Court on Human Rights have on occasion
interpreted what are essentially civil and political rights as requiring positive State action
to ensure the real and practical fulfilment. This article considers whether a similar logic
could be applied in the area
of
minority cultural rights so as to fully ensure the rights
of
Turkey's Kurds to express their own identity.
As one
of
the most important symbols
of
a minority identity is language much attention
is paid here to the rights
of
minorities in Turkey, and in particular the Kurds, to speak
their own language in private and in official situations, the Kurdish language in the media
and Kurdish education.
Legal Researcher at the London-based NGO, the Kurdish Human Rights Project (KHRP).
Turkey ratified the Convention in 1954 and has incorporated it into domestic law.
Netherlands Quarterly
of
Human Rights,
Vol.
15/3, 325-341, 1997.
©Netherlands Institute
of
Human Rights (SIM). Printed in the Netherlands. 325
NQHR
3/1997
I Minority Rights under the European Convention on Human Rights
The European Convention on Human Rights is generally regarded as providing little
protection for minorities. The Convention has no minority rights provision and both the
Commission and Court have on occasion expressly rejected any concession towards the
recognition
of
special rights for minorities:
'The
Convention
does
not
provide
for
any
rights
of
a
linguistic
minority
as
such
and
the
protection
of
individual
members
of
such
minorities
is
limited
to
the
right
not to be
discriminated
against
in
the
enjoyment
of
Convention
rights on the
ground
of
their
belonging
to
the
minority."
At the time the Convention was drafted the prevailing thinking was that individual rights
and the principle
of
non-discrimination were sufficient to protect the rights
of
all,
including members
of
minorities. The standard definition
of
non-discrimination as found
in the Belgian Linguistics Case' established that the principle
of
equality is violated if a
distinction between two groups has not an objective and reasonable justification. As a
result actions by States that favour minorities at the expense
of
majorities may be justified
under Article 14, whereas claims by an individual or group that such actions be taken
would fail for lack
of
a minority rights provision."
Recent developments in international law illustrate a change in attitude towards
minority rights. The new minority rights instruments adopted by the UN, the Council
of
Europe and the OSCEsrecognise that the principle
of
non-discrimination may not be
sufficient to meet the needs
of
minorities and that special rights and positive assistance are
required if minorities are to preserve their culture and identity." The rationale
underpinning these new instruments is the prevention
of
conflict" and also the belief that
protection
of
minority identities and cultural diversity is a source
of
'enrichment for each
society'."
2Xv. Austria, Appl. No. 8142178, 18 D&R (1979), p. 88, at p. 92.
Judgment
of
23 July 1968, Series A, Vol. 6.
SeeXv.
Austria, Appl. No. 8142/78,18 D&R (1979), at pp. 92-93. On the other hand, the Commission has
also on occasion suggested that under Article 14 treating essentially different groups in the same manner as
the majority may sometimes be discriminatory. Christians Against Racism
and
Fascism v, the UK, Appl. No.
84440/78, 21 D&R (1980), p. 138, at p. 152. In a similar vein, in Liberal Party et al. v. the UK the
Commission held obiter that there may be occasions when Article 3
of
Protocol 1, together with Article 14
could be violated if voting behaviour indicated that religious or ethnic groups could never be represented in
the legislature 'because there was a clear voting pattern along these lines in the majority', 4 EHRR, 1982,
p. 106, at p. 123.
The UN Declarationon the Rights
of
Persons belonging to Ethnic, Religious and Linguistic Minorities, 1992
(14 HRLJ, p. 54), the Council
of
Europe's European Charter on Regional or Minority Languages, 1992 (14
HRLJ, p. 148)and the Council
of
Europe's Framework Convention on National Minorities, 1994 (16 HRLJ,
p. 192), various OSCE documents, in particular the Copenhagen Document, 1990 (11 HRLJ, p. 232).
For example, under Article 15
of
the Council
of
Europe's Framework Convention, 1994: 'parties undertake
to promote the conditions necessary for persons belonging to national minorities to maintain and develop
their culture, and to preserve the essential elements
of
their identity, namely their religion, tradition and
cultural heritage.'
The link between minority rights and political stability and peace is recognised in the preambles
of
the UN
Declaration on Minorities, 1992 and
of
the Council
of
Europe's Framework Convention on National
Minorities, 1994.
See Preambles
of
the Council
of
Europe's Framework Convention on National Minorities, 1994 and the
European Charter on Minority Languages, 1992.
326
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