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Individual opinion by Martin Scheinin (concurring)
I share the Committee’s conclusions in relation to all aspects of the case. On one
particular point, however, I find that the Committee’s reasoning is not fully consistent with the
general line of its argumentation. In paragraph 10.8, the Committee, in my opinion
unnecessarily, emphasizes the individual nature of rights of participation under article 25. In
my view there are situations where article 25 calls for special arrangements for rights of
participation to be enjoyed by members of minorities and, in particular, indigenous peoples.
When such a situation arises, it is not sufficient under article 25 to afford individual members of
such communities the individual right to vote in general elections. Some forms of local,
regional or cultural autonomy may be called for in order to comply with the requirement of
effective rights of participation. As is emphasized at the end of paragraph 10.3 of the Views,
the right of self-determination under article 1 affects the interpretation of article 25. This
obiter statement represents, in my opinion, proper recognition of the interdependence between
the various rights protected by the Covenant, including article 1 which according to the
Committee’s jurisprudence cannot, on its own, serve as the basis for individual communications
under the Optional Protocol.
Irrespective of what has been said above, I concur with the Committee’s finding that
there was no violation of article 25. In my opinion, the authors have failed to substantiate how
the 1996 law on regional government has adversely affected their exercise of article 25 rights, in
particular the operation and powers of local or traditional authorities. On the basis of the
material they presented to the Committee, no violation of article 25 can be established.
(Signed) M. Scheinin
[Done in English, French and Spanish, the English text being the original version. Subsequently
issued also in Arabic, Chinese and Russian as part of the present report.]
1
On 10 May 1998, the Committee was informed about the passing away of Captain Diergaardt,
and that Mr. D. Izaaks had been appointed acting chief.
2
Counsel provides a copy of a circular issued by the Regional Commissioner, Central Region,
Rehoboth, dated 4 March 1992, in which the use of Afrikaans during telephone conversations
with regional public authorities is explicitly excluded.
3
See the Committee’s Views in case No. 167/1984 (Ominayak v. Canada), Views adopted on
26 March 1990.
4
See, Kitok v. Sweden (197/1985), Ominayak v. Canada (167/1984), I. Länsman et al. v.
Finland (511/1992), J. Länsman et al. v. Finland (671/1995), as well as General Comment
No. 23 [50], para. 7.