Rights of minorities
REPORT
Doc. 6556
29 January 1992
Rapporteurs: Mr BRINCAT, Malta, Labour and Mr WORMS, France, Socialist
Problems and solutions
There have now been a very large number of declarations of principle by governmental and international authorities advocating the recognition, protection and indeed promotion of the rights of "minorities", whether these be national, ethnic and cultural, linguistic or religious.
There have been more and more colloquies and conferences of every kind. The extreme diversity of situations has now been properly recorded, described and analysed, as have the very great variety of problems raised and the difficulties, both legal and political, involved in solving them.
Today analyses and conclusions that nothing can be done are no longer acceptable. There is an urgent need for international decisions and commitments which can be rapidly implemented on the ground.
The Committee of Ministers of the Council of Europe should therefore soon finish its work on the draft European Charter for Regional and Minority Languages. In addition it should, as a matter of
urgency, elaborate an additional protocol to the European Convention on Human Rights for the protection of the rights of minorities.
The Council of Europe should play a mediating and conciliating role in conflicts involving minorities. In order to strengthen this role the Committee of Ministers should give the Council of Europe a suitable mediation instrument, associating the highest competent authorities at international and national level with power:
- to observe and record
- to advise and forestall
- to discuss and mediate.
The Assembly will continue to give its full support to all the activities underway in the framework of the Council of Europe and expresses its wish to be fully associated with them. It instructs its Committee on Legal Affairs and Human Rights to submit to it a study and, if appropriate, concrete proposals, for an arbitration council or a European commission on minorities.
I. DRAFT RECOMMENDATION [link to adopted text]
1. In a democratic state there can be no second-class citizens: citizenship is the same for all. The first and last guarantee of this equality of rights and duties lies in scrupulous respect for human rights on the part of states and in the ratification by them of the European Convention on Human Rights.
2. Within this common citizenship, however, citizens who share specific characteristics (cultural, linguistic, religious etc.) with others may wish to be granted and guaranteed the possibility of expressing them.
3. It is these groups sharing such specific features within a state that the international community has called "minorities", since the first world war, without that term denoting any inferiority whatever in this or that field.
4. There have now been a very large number of petitions and declarations of principle by governmental and international authorities advocating the recognition, protection and indeed promotion of the rights of "minorities", whether these be national, ethnic and cultural, linguistic or religious.
5. There have been more and more colloquies and conferences of every kind. The extreme diversity of situations has now been properly recorded, described and analysed, as have the very great variety of problems raised and the difficulties, both legal and political, involved in solving them.
6. All of this is no longer enough. These analyses and these conclusions that nothing can be done are no longer acceptable. There is an urgent need for international decisions and commitments which can be rapidly implemented in the area concerned. Peace, democracy, freedoms and respect for human rights in Europe are at stake.
7. It is this sense of urgency and this desire to come up with practical proposals which were the impetus for the colloquy held in Paris, at the Senate, on 13 and 14 November 1991, at the initiative of the Assembly's Committee on Legal Affairs and Human Rights. The colloquy was intended to be different from many of its predecessors, as its purpose was to suggest to the Council of Europe constructive action which could be put into effect rapidly.
8. The colloquy reviewed the work being done by the various European and international bodies, particularly the Council of Europe, the EEC, the CSCE and the United Nations. It examined the proposal for a European Convention for the Protection of Minorities drawn up by the European Commission for Democracy through Law, the draft European Charter for Regional or Minority Languages currently before the Committee of Ministers of the Council of Europe, and the proposal for a European Council of national, ethnic, religious, cultural and linguistic minorities presented by the International Federation of Human Rights.
9. The different intergovernmental organs of the Council of Europe will soon be required to give their opinions to the Committee of Ministers, so as to enable the latter to conclude its work on the draft Charter for Regional or Minority Languages. The Assembly is aware of certain weaknesses already noted in this draft. However, as it does not wish to delay matters, the Assembly recommends that the Committee of Ministers conclude its work as quickly as possible and that it do its utmost to ensure the rapid implementation of the Charter.
10. The Assembly has taken note of the terms of reference given to the Steering Committee for Human Rights by the Committee of Ministers. Under those terms of reference, consideration is to be given to the proposal for a convention for the rights of minorities. However, although it contains an excellent definition of the rights to be guaranteed, the proposed convention appears to be deficient on the question of supervisory machinery. Thus, the Assembly considers it preferable and urgent to elaborate an additional protocol to the European Convention on Human Rights and it welcomes the fact that the Austrian Minister submitted the draft of such a protocol to his colleagues at the meeting of the Committee of Ministers on 26 November 1991.
11. In addition, although this can in no way replace or delay the elaboration of a genuine legal instrument, the Assembly adopted in its Recommendation 1134 (1990) a declaration defining the basic principles on which an international consensus already exists and which should serve to underpin the positions adopted and action taken by the Council of Europe and to provide criteria for the examination of applications for membership of the organisation.
12. In its Order No. 456 (1990), the Assembly decided to play a mediating and conciliating role in conflicts involving minorities whenever it was asked to do so. In order to strengthen this Council of Europe role, the Assembly recommends that the Committee of Ministers give the Council a suitable mediation instrument, associating the highest competent authorities at international and national level. This body would have power to do three things:
i. To observe and record: this would involve constant monitoring of changes in the situation of minorities in all the European states;
ii. To advise and forestall: it would also have the task of taking timely action to help states and minorities to define the rules governing their relations before open conflict developed;
iii. To discuss and mediate: in cases of open conflict, it would be expected to draw on its international backing and own achievements in making on-the-spot efforts to reconcile the parties to the dispute and to find lasting and peaceful solutions to the problems which oppose them.
II. DRAFT ORDER [link to adopted text]
1. The Assembly refers to its Recommendation ... (1992) in which it proposes that the Committee of Ministers:
i. conclude as soon as possible the work under way for the elaboration of a charter for regional or minority languages and do its utmost to ensure the rapid implementation of the charter;
ii. draw up an additional protocol on the rights of minorities to the European Convention on Human Rights;
iii. provide the Council of Europe with a suitable mediation instrument.
2. As was observed in Order No. 456 (1990), the Assembly has decided to give its full support to all the activities under way within the framework of the Council of Europe and expresses its wish to be fully associated with them.
3. It is therefore necessary to follow closely the activities in progress or to be undertaken in the Council of Europe and other organisations in connection with the rights of minorities, and to give them strong encouragement.
4. The Assembly instructs its Committee on Legal Affairs and Human Rights to continue its work in close co-operation with other European and international institutions such as the CSCE, the European Parliament, the International Institute for Democracy and the European Commission for Democracy through Law.
5. It invites the Committee on Legal Affairs and Human Rights, with the assistance of the above-mentioned organisations if necessary, to submit to it a study and, if appropriate, concrete proposals for an arbitration council or a European commission on minorities.
6. In addition, it instructs its Committee on Legal Affairs and Human Rights to submit a further report, if necessary, on the subject of minorities and its other interested committees to submit their opinions.
III. EXPLANATORY MEMORANDUM
by MM Brincat and Worms
CONTENTS
Page
1. Introduction 6
2. The Council of Europe and its proposals
concerning minorities: 7
- Work of the Parliamentary Assembly:
Order No. 456 (1990)
Recommendation 1134 (1990) 7
- Council of Europe Charter for Regional
or Minority Languages 8
- Proposal for a Convention for the
Protection of Minorities, submitted by
the European Commission for Democracy
through Law
("Venice Commission") 9
- Terms of reference given to the Steering
Committee for Human Rights (CDDH) by the
Committee of Ministers 9
3. Colloquy on the Rights of Minorities
(Paris, 13 and 14 November 1991) 10
4. Conclusions 11
Appendices:
Appendix I
- Programme of the colloquy 12
Appendix II
- Final Declaration of the Rapporteurs 16
Appendix III
- Interim replies (December 1990 and
November 1991) of the Committee of
Ministers to Recommendation 1134 (1990) 19
Appendix IV
- Proposal for a declaration on the rights
of minorities 21
1. INTRODUCTION
1.1. Because of its history, the European continent is made up of a medley of peoples with different languages, cultures, traditions, customs and religions.
1.2. This diversity has fuelled all the conflicts of the past, and was the cause of the first world war.
1.3. Yet this diversity was also, through a cross-fertilisation process, the source of the richness, momentum and influence of European civilisation, and will be an asset to it in the future. Steps must be taken to preserve it and ensure that it flourishes in the future in conditions of peace and democracy.
1.4. The peoples of Europe are so closely intermingled that they cannot be completely demarcated solely by territorial boundaries. The state frontiers that are a legacy of the two world wars have not produced a clear demarcation. The same will be true of future frontiers, irrespective of where they lie.
1.5. The existence of "minorities" - be they national, ethnic, cultural, linguistic or religious, or based on several of these collective identity criteria - is thus an undeniable feature of every European state, past, present or future.
1.6. The democratic states have taken account of the diversity of their populations with varying success, depending on whether they have adopted constitutions based on a confederation, a federal state or a unitary state and depending on the concept of citizenship which they have inferred from the constitution. In most of these countries, however, the problems of minorities remain, to a greater or lesser degree.
1.7. The totalitarian states, on the other hand, have always sought to solve these problems by denying their existence, that is by means of repression and subjection to central government. When they collapse, the minorities' aspirations to an identity of their own are all the more violent, because they have long been brutally repressed.
1.8. The collapse of the communist empire has thus been matched by the resurgence of virulent nationalism among peoples seeking, when winning sovereignty for a new state, to safeguard respect for their identity and freedom.
1.9. The right of peoples to self-determination is a basic principle of international law, recognised and guaranteed by the United Nations. Translating it into terms of national sovereignty does not, however, solve the problem of minorities: it merely shifts the emphasis (see paras. 1.4 and 1.5 above).
1.10. It is therefore within each of these states, and in the rules which govern relations between states, that the diversity of European peoples must find expression and that the freedom and dignity of individuals and groups which make them up must be respected and their rights safeguarded.
1.11. There is thus an international obligation to define and effectively protect the "rights of minorities". This is the only chance of preventing the legitimate aspirations of European peoples from degenerating into conflicts between ethnic groups, and then between states, which could gradually threaten peace, democracy, freedom and human rights throughout our continent.
1.12. The path to be trodden is narrow and rocky. No other international institution is better qualified to embark on it than the Council of Europe, given its vocation, its make-up and its achievements.
1.13. The international authority it carries in the fields in which it works is such that it provides the countries of Central and Eastern Europe which join it with the ultimate recognition of the fact that they are democracies. This gives it a considerable ability to influence the countries which have just had their membership applications accepted, and those whose applications are now being examined.
1.14. The Council of Europe has already done a great deal of work on the rights of minorities, referred to in this report. Other international organisations, in particular the United Nations, the CSCE and the EEC, have also done useful work. The colloquy held in Paris on 13 and 14 November 1991 by the Committee on Legal Affairs and Human Rights revealed that the various organisations are working towards the same end. It is up to the Council of Europe to ensure that all the studies and proposals soon produce concrete results and are put into practice.
2. THE COUNCIL OF EUROPE AND ITS PROPOSALS CONCERNING THE RIGHTS OF MINORITIES
2.1. WORK OF THE PARLIAMENTARY ASSEMBLY
2.1.1. In October 1990 the Assembly - which had not expressed its views on the rights of minorities in general for 30 years - adopted Recommendation 1134 and Order No. 456 (1990).
2.1.2. In its Recommendation 1134 (1990), the Assembly, after justifying protection for the rights of minorities as a direct extension of the promotion of human rights and fundamental freedoms, sets out an outstanding list of principles which should govern the protection of the rights of minorities. It outlines these rights and the obligations which they imply for states and draws attention to the international obligations deriving from:
- Article 27 of the International Covenant on Civil and
Political Rights;
- the Helsinki Final Act;
- the Madrid, Vienna and Copenhagen closing documents concerning minorities and the international instruments binding on states involved in the CSCE process. As it considers that the Council of Europe is particularly well qualified to prepare a legal instrument in this field, it recommends that the Committee of Ministers draw up either a Protocol to the European Convention on Human Rights or a special Council of Europe Convention.
2.1.3. The interim reply from the Committee of Ministers (December 1990) and a second reply (November 1991) are appended to this report.
2.1.4. In its Order No. 456 (1990) the Assembly instructs its Committee on Legal Affairs and Human Rights to organise a symposium, one of the main objectives of which would be to further elaborate on and define principles concerning the rights of minorities which could be included in an additional protocol to the Convention on Human Rights or in a special Council of Europe convention. A colloquy was held in Paris on 13 and 14 November 1991. It will be discussed in the next section.
In the order, the Assembly also decided to support all the activities taking place at the Council of Europe and expressed the desire to be involved in them. It decided to play a mediation and conciliation role in conflicts involving minorities whenever such a role was requested and accepted by the enlarged Bureau, which it invited to set up a special group of rapporteurs, the members of which were to be appointed by each of the political groups of the Parliamentary Assembly.
2.2. COUNCIL OF EUROPE CHARTER FOR REGIONAL OR MINORITY
LANGUAGES
2.2.1. A draft Charter for Regional or Minority Languages has been prepared by a Council of Europe committee of experts, instructed to do so by the Committee of Ministers further to the Standing Conference of Local and Regional Authorities of Europe (CLRAE) and Assembly Opinion No. 143 (1988). The committee of experts completed its work in spring 1991. Before taking a decision, however, the Council of Europe Committee of Ministers requested the opinions of seven intergovernmental committees and of the European Commission for Democracy through Law.
2.2.2. The draft charter was also discussed in detail at the Paris Colloquy, where it was presented and explained by Mr O'Riagain, Secretary General of the European Bureau for Lesser-Used Languages in Dublin. We do not consider it worthwhile going into detail over the weaknesses of the draft charter to which attention was drawn, in particular:
- the "à la carte" system chosen for the charter, which would allow each Contracting State to make its own selection of linguistic rights to be safeguarded;
- the exclusion of migrants' languages;
- Part IV of the charter, which leaves supervision of the application of the charter virtually entirely to governments and a committee of experts appointed by the Council of Europe Committee of Ministers.
The majority of members of the Committee on Legal Affairs and Human Rights consider, however, that it would be unrealistic to seek perfection in an area as tricky and delicate as the protection of minorities. It was rightly pointed out that the situation of minorities is different in each country and that it would be difficult, if not impossible, to find precise criteria applicable to any linguistic minority in any country of Europe. The system chosen could prove useful in the immediate future and provide a satisfactory solution, if not a perfect one.
2.3. PROPOSAL FOR A EUROPEAN CONVENTION FOR THE PROTECTION OF
MINORITIES, SUBMITTED BY THE EUROPEAN COMMISSION FOR
DEMOCRACY THROUGH LAW
2.3.1. It is the "Venice Commission" that deserves the credit for working out a very comprehensive and balanced proposal for a European Convention for the Protection of Minorities. The Commission embarked on this work at the request of the Hungarian, Italian and Yugoslav authorities, and Assembly representatives were involved in the final stages.
2.3.2. Chapter 2 of the convention lists and defines the rights and duties of minorities in a way which, although not unduly detailed, is sufficiently precise to provide a basis for adequate, effective protection of minorities. In order to ensure that Contracting Parties abide by the undertakings deriving from the Convention, it provides for the establishment of a European Committee for the Protection of Minorities, to be appointed in the same way as the European Commission of Human Rights. Like the Human Rights Convention, the Convention on Minorities makes provision for petitions by one state against another and for individual petitions, the latter only after the country concerned has made an optional declaration to the Secretary General of the Council of Europe. The committee of experts examines applications after both sides have put their case and prepares a report which it transmits to the Committee of Ministers, the state concerned and the Secretary General of the Council of Europe. It will then be up to the Committee of Ministers to take such action on the report as it considers appropriate for the purpose of ensuring that the convention is complied with.
2.3.3. The Venice Commission's proposal for a convention will be carefully examined by the Steering Committee for Human Rights in accordance with the terms of reference recently given to it by the Committee of Ministers, which will be discussed below.
2.3.4. It will obviously be most worthwhile for the Assembly and the Venice Commission to continue to co-operate closely over minorities. On the Assembly side, liaison will undoubtedly be ensured, as in the past, by the Rapporteurs, while the Venice Commission appointed Professor Helgesen (Norway) for the purpose at its meeting on 22 and 23 November 1991.
2.4. TERMS OF REFERENCE GIVEN TO THE STEERING COMMITTEE FOR
HUMAN RIGHTS (CDDH) BY THE COMMITTEE OF MINISTERS
2.4.1. The Declaration made at the CSCE Conference in Copenhagen (June 1990) and the Paris Charter (November 1990) raised hopes that the CSCE was going to prepare a convention on minorities. The CSCE Conference on Minorities, held in Geneva in July 1991, and the meeting on the human dimension in Moscow (10 September - 4 October 1991) showed, however, that there were major problems, inherent in the CSCE process, in producing a Convention. The fact that a CSCE initiative was expected probably explains why the Committee of Ministers did not react immediately to Assembly Recommendation 1134 (1990). The fact that it was somewhat disappointed in this respect doubtless explains why it transferred its expectations to the Council of Europe and gave terms of reference to the Steering Committee for Human Rights (CDDH) reading as follows:
"To consider from both their legal and political points of view the conditions in which the Council of Europe could undertake an activity for the protection of national minorities, taking into account the work done by the CSCE and by the United Nations, and the reflections of the Council of Europe. The Committee of Ministers draws the attention of the CDDH to the draft European Convention for the protection of minorities drawn up by the European Commission for Democracy through Law and Parliamentary Assembly Recommendation 1134 on the rights of minorities. It invites the CDDH to take into consideration the Council of Europe contribution to the CSCE meeting of experts on national minorities and the report of this meeting, as well as the relevant paragraphs of the document adopted at the Moscow meeting of the Conference on the Human Dimension of the CSCE. It asks the CDDH to submit by May 1992 at the latest for consideration by the Committee of Ministers a report including proposals for further Council of Europe action in this area."
3. COLLOQUY ON THE RIGHTS OF MINORITIES
(Paris 13 and 14 November 1991)
3.1. In accordance with the instructions given to it by the Assembly in Order No. 456 (1990), the Committee on Legal Affairs and Human Rights organised a Colloquy on the Rights of Minorities, in which the Committee on Migration, Refugees and Demography and its Rapporteur also took part. The colloquy was attended not only by members of the Parliamentary Assembly but also by members of the European Parliament, experts, government representatives and some NGOs, Mr Robert Badinter, President of the French Conseil constitutionnel, Mrs Catherine Lalumière, Secretary General of the Council of Europe, Mrs Simone Veil, member and former President of the European Parliament, and Mr von Stauffenberg, Chairman of the European Parliament Committee on Legal Affairs and Citizens' Rights, also attended the colloquy.
The discussions were introduced by highly competent Rapporteurs, whose names appear in the programme of the colloquy, appended to this report.
3.2. The colloquy took stock of current work in the various European and international organisations, in particular the Council of Europe, the EEC, the CSCE and the United Nations. It examined the proposal for a Convention for the Protection of Minorities, drawn up by the Commission for Democracy through Law, and the draft Charter for Regional or Minority Languages, which is currently before the Council of Europe Committee of Ministers.
3.3. The exchange of views we had with our colleagues in the European Parliament was particularly useful. It enabled us to conclude that the European Parliament members' priority was to include the protection of minority rights in European treaties, such as the Political Union Treaty, but that the Council of Europe was the organisation best qualified to assess the problems of minorities in Europe and devise a legal framework and conditions for their protection.
3.3.4. In the past we concentrated our efforts on substantive law, ie the rights of minorities which need to be protected, and neglected procedural law, ie ways and means of protecting them. The statement by Mr Badinter, who presented his plan for a European Arbitration Court, was therefore particularly welcome. Mrs Rousso-Lenoir, Secretary General of the International Federation of Human Rights, presented the Federation's plan for a European Council of Ethnic, Religious, Cultural and Linguistic Minorities. We suggest that these projects continue to be studied with the help of the International Institute of Democracy in Strasbourg.
3.5. During the colloquy, various texts were compared in detail, point by point, to identify stands on which there was already a widespread international consensus and the problems that had still to be solved. As a result of this work, the members of the Assembly who attended the colloquy were able to form a clear picture of the problems and to prepare the policy measures needed. As Rapporteurs, we drew conclusions from the colloquy, which we summarised in a final declaration that was distributed to those attending and to the journalists who attended the press conference held at the end of the proceedings. The Final Declaration is appended to this report.
3.6. With the help of the International Institute for Democracy, the rapporteurs have drawn together the ideas on which there is already an international consensus and are submitting them in the form of a declaration of principles to the Steering Committee for Human Rights (CDDH) and the Committee of Ministers as their contribution to the preparation of the official declaration, which they recommend be rapidly adopted (cf. Appendix IV).
4. CONCLUSIONS
4.1. There is an urgent need for the Council of Europe to live up to its main vocation, assume the special responsibilities it shoulders in present times, and:
a. facilitate and expedite co-ordination of the proposals put forward by the various international organisations dealing with the problem of the rights of minorities so that joint, or at least co-ordinated, action can be taken;
b. give the international community instruments that can, through recognition and effective protection for the rights of minorities, help to ensure lasting peace, democracy and human rights in the continent of Europe in the face of the trials it will have to undergo in the next decade.
4.2. To this end, the Assembly should strongly urge the Committee of Ministers to reply quickly to the two proposals in the draft recommendation in this report, to the effect that:
4.2.1. A mediation body be urgently set up, with the co-operation of the other international organisations concerned, and be provided with standards, in the form of a declaration, on which to base its action.
4.2.2. At the same time, and with the same concern for speed, an additional protocol to the European Convention on Human Rights be prepared, this being preferable to a special convention in view of the effectiveness of the legal implementation safeguards provided by the European Commission and Court of Human Rights.
4.3. As it did in the aftermath of the second world war, the Council of Europe will thus rise to the major challenge with which history has presented it and will live up to the expectations which the peoples of Europe have invested in it.
A P P E N D I X I
COLLOQUY ON
THE RIGHTS OF MINORITIES
Paris, 13-14 November 1991
French Senate, "Salle Médicis"
15, rue de Vaugirard, Paris 6e
tel. (33) 16.1.42342000, poste 5104
P R O G R A M M E
Wednesday 13 November - 3 pm
1. OPENING OF THE COLLOQUY BY THE CHAIRMAN OF THE COMMITTEE ON LEGAL AFFAIRS AND HUMAN RIGHTS
2. THE WORK OF THE PARLIAMENTARY ASSEMBLY
3.15 pm
- Introduction of the work of the Assembly by the rapporteurs of the Committee on Legal Affairs and Human Rights and of the other Assembly committees concerned
<Recommendation 1134 (1990)
Order No. 456 (1990)>
- Discussion
3. THE WORK OF THE CONFERENCE ON SECURITY AND CO-OPERATION IN EUROPE (CSCE) ON MINORITIES (Geneva, 1-19 July 1991)
4 pm
- Statement by Mr Victor-Yves Ghebali, Professor at the Graduate Institute of International Studies, Geneva
- Discussion
4. THE WORK STARTED UNDER THE RESPONSIBILITY OF THE SECRETARY GENERAL AND OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE
4.45 pm
- Statement by Mrs Catherine Lalumière, Secretary General of the Council of Europe
- Discussion
5. THE WORK AND RESULTS OF THE WORK OF OTHER INTERNATIONAL ORGANISATIONS AND OF OTHER CONFERENCES
5.30 pm
- Consideration of a paper submitted by the International Institute of Democracy
<AS/Jur (43) 19>
- Statement by Mrs Florence Benoît-Rohmer, scientific counsellor of the Institute
- Discussion
Thursday 14 November - 9.30 am
6. THE WORK OF THE EUROPEAN PARLIAMENT AND OF THE EUROPEAN COMMUNITIES
- Statement by Mr F.L. Schenk Graf von Stauffenberg, Chairman and Rapporteur of the Committee on Legal Affairs and Citizens' Rights of the European Parliament
7. THE SIGNIFICANCE OF THE PROTECTION OF MINORITIES FOR THE BUILDING OF EUROPE
10 am
- Statement by Mrs Simone Veil, member and former President of the European Parliament
- Joint discussion
8. THE CHARTER ON REGIONAL AND MINORITY LANGUAGES
10.45 am
- Consideration of the draft Charter of the Council of Europe on Regional and Minority Languages
- Introductions by: Mr Lluis Maria de Puig, Rapporteur of the Committee on Culture and Education and by Mr Donall O'Riagain, Secretary General of the European Bureau for Lesser-Used Languages, Dublin
[Draft charter]
- Discussion
Thursday 14 November 1991 - 12.15 pm
- Reception[1]
Thursday 14 November - 2.30 pm
9. THE DRAFT CONVENTION ON THE PROTECTION OF THE RIGHTS OF MINORITIES
2.30 pm
- Consideration of the draft Convention on the Protection of the Rights of Minorities submitted by the European Commission on Democracy through law
- Introduction by Professor Jean-Claude Scholsem, Rapporteur on minorities of the European Commission on Democracy through Law
[Draft convention]
- Discussion
10. FURTHER ACTION TO BE UNDERTAKEN BY THE PARLIAMENTARY ASSEMBLY
3.45 pm
- Preliminary conclusions drawn by the Rapporteurs
11. CLOSING OF THE COLLOQUY
Thursday 14 November - 4.30 pm
- Press conference (room Champetir de Ribes)
conference is to be held at 4.30 pm on Thursday 14 November 1991 (Room Champetir de Ribes).
A P P E N D I X I I
Colloquy on the Rights of Minorities
(Paris 13 and 14 November 1991)
FINAL DECLARATION OF THE RAPPORTEURS
MM Brincat and Worms
There have now been a very large number of petitions and declarations of principle by governmental and international authorities advocating the recognition, protection and indeed promotion of the rights of "minorities", whether these be national, ethnic and cultural, linguistic or religious.
There have been more and more colloquies and conferences of every kind. The extreme diversity of situations has now been properly recorded, described and analysed, as have the very great variety of problems raised and the difficulties, both legal and political, involved in solving them.
All of this is no longer enough. These analyses and these conclusions that nothing can be done are no longer acceptable. There is an urgent need for international decisions and commitments which can be rapidly implemented on the ground. Peace, democracy, freedoms and respect for human rights in Europe are at stake.
It is this sense of urgency and this desire to come up with practical proposals which have inspired the holding of this colloquy, here in Paris at the Senate, on 13 and 14 November 1991, at the initiative of the Committee on Legal Affairs and Human Rights of the Council of Europe's Parliamentary Assembly. The colloquy was intended to be different from many of its predecessors, as its purpose was to suggest to Council of Europe member governments constructive action which would take effect rapidly.
Indeed, the Council of Europe is, thanks to its mission, structure and achievements, the international institution best qualified to take up this challenge now facing Europe. Set up immediately after the second world war, for the precise purpose of guaranteeing peace on the continent of Europe by promoting democracy and human rights, it has gradually brought together all Western Europe's parliamentary democracies. It is now taking in the countries of Central and Eastern Europe, having first satisfied itself that they have set up democratic institutions and machinery. Hungary and Czechoslovakia are already members, Poland will be joining in a few days' time, and the Baltic Republics will be coming some months after that. The progress which the Council has secured in its areas of competence (particularly through the European Convention on Human Rights and its jurisdictional instruments, the European Commission and Court of Human Rights) lends it considerable moral and political authority in the face of the upheavals which Europe has been experiencing since the Berlin Wall came down. The new democracies of Central and Eastern Europe are queuing up to join.
This colloquy has been attended by participants from some 20 European countries, members of the Parliamentary Assembly and European Parliament, experts and NGO representatives.
Catherine Lalumière, Secretary General of the Council of Europe, Robert Badinter, President of the French Constitutional Council, and Simone Veil, a member and former President of the European Parliament, have also been with us.
The colloquy has reviewed the work at present being done by the various European and international bodies, particularly the Council of Europe, the EEC, the CSCE and the United Nations. It has examined the proposal for a Convention on the Protection of Minorities drawn up by the Commission for Democracy through Law and the draft European Charter for Regional or Minority Languages currently before the Committee of Ministers of the Council of Europe.
All these texts have been scrutinised and analysed item by item, for the purpose of identifying areas where there is already a broad measure of international agreement, and the questions which call for further discussion. Having done this, the participants have gone on to prepare the way for both urgent and longer-term action.
A. Urgent action
The participants feel that points on which there is already agreement should be brought together in a declaratory text which would be adopted rapidly by the Council of Europe and could be used by it as a reference base for decisions or action in specific cases.
The participants have suggested that the Council should rapidly create a suitable mediation instrument for urgent, on-the-spot action of this kind. This might be a body representing the highest courts in Council of Europe member states, as well as the European Commission and Court of Human Rights.
On the basis of the declaration of principles mentioned above, this body would have power to do three things:
- to observe and record: this would include constant monitoring of changes in the situation of minorities in all the states of Europe;
- to advise and prevent: it would also have the task of taking immediate action to help states and minorities to define the rules governing their relations before open conflict developed;
- to discuss and mediate: in cases of open conflict, it would be expected to draw on its international backing and own achievements in making on-the-spot efforts to find ways of reconciling the parties in dispute and lasting and peaceful solutions to the problems which opposed them.
B. Longer-term action
As well as pointing to the need for rapid action to prevent and defuse conflicts which jeopardise peace and freedoms in Europe in specific cases, the participants think it essential to give the rights of minorities - that new area of freedom - a solid basis in international law. This is necessarily a longer-term business, since there is still considerable disagreement regarding the form and content of the legal instrument needed.
With regard to content and all the questions which are still under discussion, the participants have given a clear indication of their preferences.
They have also expressed clear views concerning the form of the most appropriate legal instrument, the majority favouring a protocol to the European Convention on Human Rights.
The Parliamentary Assembly of the Council of Europe and its relevant committees now have everything they need to move ahead in making their recommendations to the Committee of Ministers more specific and in defining a realistic and gradual implementation strategy.
One crucial point remains: the political ability and determination of the Committee of Ministers, in other words of the Council of Europe's member governments, to make the decisive move into action.
Some West European states which have traditionally defined "nation" and "citizenship" in terms which make it hard to recognise minorities, in practice and above all in law, have succeeded in delaying the introduction of these new rights. This hanging back has now become dangerous. Unless minorities are given the right to preserve certain aspects of their own identity within broader state structures, they may well try to win that right by violent means and to guarantee it by setting up a new and supposedly homogeneous state (this is both impossible and dangerous, particularly since it results in a new flood of refugees). The actual effect of this would be long-term disruption of Europe's essential balance at the very time when Europe is trying to recreate its unity by rediscovering the common basis of its civilisation and using its diversity in the service of a shared endeavour.
Promoting the rights of minorities today is an essential part of building the Europe of tomorrow.
This colloquy may help to make people more conscious of this fact. For their part, the organisers and rapporteurs will try to use its findings to maximum advantage.
A P P E N D I X III
Recommendation 1134 (1990) on the rights of minorities
Interim reply by the Committee of Ministers (December 1990)
1. The Committee of Ministers notes that the Charter of Paris for a new Europe, adopted by the Heads of State and Government of the states participating in the Conference on Security and Co-operation in Europe on 21 November 1990, provides for the convocation of a meeting of experts on national minorities to be held in Geneva from 1 to 19 July 1991. The Council of Europe is invited to this meeting in order to make a contribution. The Committee of Ministers will give a final reply to Assembly Recommendation 1134 following its evaluation of the results of this meeting.
2. At the moment the Committee of Ministers wishes to inform the Assembly that the Intergovernmental Programme of Activities for 1991, adopted on 30 November 1990, contains a project on legal aspects of the protection of minorities. An informal group of national correspondents qualified to deal with the legal aspects of minority problems will be set up. This group will advise the Secretary General and the Committee of Ministers and, especially, make an initial study of any recommendations adopted by the Parliamentary Assembly, in particular Recommendation 1134, and of proposals made by the European Commission for Democracy through Law. It could also draw up, for consideration by the Committee of Ministers, a paper taking stock of progress made in other international forums - particularly the CSCE - with regard to the protection of minorities.
Second reply by the Committee of Ministers (November 1991):
The following developments since the adoption of the first interim reply by the Committee of Ministers in December 1990 might be of particular interest to the Parliamentary Assembly:
1. The Council of Europe submitted a written contribution to the CSCE meeting of experts on national minorities, held in Geneva on
1-19 July 1991.
This document, the full text of which was communicated to the Assembly in an addendum to the Statutory Report for the September 1991 part-session of the Assembly, refers to the Organisation's work in the standard-setting field and in particular its contribution to the legal protection of minorities through the achievements of the European Convention on Human Rights; it also covers the possibilities of improving the Convention by developing the scope of certain provisions as well as other activities under way such as the draft for a "European Charter for Regional or Minority Languages" and the proposal presented by the European Commission for Democracy through Law for a draft European Convention for the Protection of Minorities. The document finally presents the wide scope of the possible contribution by the Council of Europe to confidence-building measures in human relations based on existing Council of Europe achievements and its current programme of activities which could be adjusted to include or to cover in greater depth issues raised by the protection of minorities.
2. The Geneva meeting was addressed by the Secretary General on
2 July 1991. In the meeting report the participating states welcomed the positive contribution made by the representatives of the United Nations and the Council of Europe to the proceedings of the meeting and noted that the work and activities of these organisations will be of continuing relevance to the CSCE's consideration of national minorities issues.
3. In October 1991 the Committee of Ministers assigned ad hoc terms of reference to the Steering Committee for Human Rights (CDDH) asking it to consider from both the legal and political points of view the conditions in which the Council of Europe could undertake an activity for the protection of national minorities, taking into account the work done by the CSCE and by the United Nations, and the reflections of the Council of Europe.
In the terms of reference the Committee of Ministers
- drew the attention of the CDDH to the draft European Convention
for the protection of minorities drawn up by the European Commission for Democracy through Law and to Parliamentary Assembly Recommendation 1134 on the rights of minorities;
- invited the CDDH to take into consideration the Council of Europe contribution to the CSCE meeting of experts on national minorities and the report of this meeting, as well as the relevant paragraphs of the document adopted at the Moscow meeting of the Conference on the Human Dimension of the CSCE;
- asked the CDDH to submit by May 1992 at the latest for consideration by the Committee of Ministers a report including proposals for further Council of Europe action in this area.
4. The Committee of Ministers will keep the Parliamentary Assembly informed about subsequent developments.
A P P E N D I X IV
Proposal for a Declaration of the rights of minorities
Article 1
The existence and identities of ethnic, religious and linguistic national minorities shall be protected by states, which shall refrain from any assimilation measures preventing them from expressing their specific identity.
Article 2
Persons belonging to minorities may freely use their own language. Persons belonging to a minority which accounts for a certain proportion of the population may communicate with the public authorities in their own language.
Article 3
Pupils belonging to a minority may receive instruction in the language of their minority. If a minority represents a substantial
proportion of the population, pupils belonging to it shall be given such instruction as part of public education.
Article 4
Persons belonging to minorities may, either alone or in community with others, preserve and develop their culture in complete freedom as well as possess their own educational, religious and cultural institutions.
Article 5
Persons belonging to minorities may, either alone or in community with others and in public or private, manifest their religion or beliefs in worship, teaching, practice and observance.
Article 6
Persons belonging to minorities may effectively and in appropriate ways participate in the management of public matters affecting them.
Article 7
Persons belonging to minorities may maintain relations and associate with other members of their group, even beyond national frontiers. This right shall imply that they may freely leave their country and return to it.
Article 8
Persons belonging to minorities may receive or communicate ideas without any interference from the public authorities and regardless of frontiers.
Article 9
The exercise of the rights set forth in the preceding articles may be subjected to such limitations as are necessary in a democratic society for the preservation of the existence of the state and of the rights of others, in particular the rights of members of the majority and of other minorities.
Article 10
Persons belonging to minorities shall undertake to discharge loyally the obligations deriving from citizenship of their state.
Article 11
States shall refrain from sparking off or supporting separatist movements in another state.
Reporting committee: Committee on Legal Affairs and Human Rights.
Additional budgetary implications for the Assembly: None.
Reference: Order No. 456 (1990) and Doc. 6261, Reference No. 1690 of 3 July 1990.
Draft recommendation and draft order: unanimously adopted by the committee on 20 January 1992.
Members of the Ccmmittee: Lord Kirkhill (Chairman), Mr Altug (Vice-Chairman), Mrs Ekman (Vice-Chairwoman), MM. Akçali, Amaral, Arnalds, Bindig, Brincat, Collette, Colombo, Columberg, De Decker, Espersen,
Esteves, Fodor (Alternate: Tabajdi), Fuhrmann, Ghalanos (Alternate: Matsis), Gundersen, Stig Gustafsson, Hyland, Jansson, Karcsay (Alternate: Hörcsik), Mrs Lentz-Cornette, MM. Meimarakis, Negri, Nunez
(Alternate: Barrionuevo), Oehry, Petitpierre (Alternate: Mrs Haller), Pontillon, Posluch, Rodotà, Rokofyllos, Ruiz (Alternate: Cuatrecasas), von Schmude, Schwimmer, Sir Dudley Smith, Mrs Soutendijk-van Appeldoorn, Mrs Staels-Dompas, MM. Stoffelen, Vogel, Ward, Worms.
N.B. The names of the members who took part in the vote are underlined.
Secretaries to the committee: Mr Plate and Ms Coin.