20 December 1995
on the rights of national minorities
(Rapporteur: Mr BINDIG,
Germany, Socialist Group)
Once more the Assembly is showing its keen interest in national minorities and the protection of their rights. It has already adopted four recommendations over the last five years, reflecting its constant concern for this issue.
However, since the opening for signature of two additional conventions, the European Charter for Regional or Minority Languages and the very recent Framework Convention for the Protection of National Minorities, the Assembly's discussions have taken a new turn.
Despite the progress made, work remains to be done. The Assembly must now reiterate its proposals and pursue its action in order to promote the effectiveness of existing legal instruments. In particular, it considers it necessary to determine, without delay, the status, composition and procedures of the advisory committee to be set up under the Framework Convention for the Protection of National Minorities, as well as the ways of guaranteeing that it can function effectively. It is also examining the possibility of singling out from the Charter for Regional or Minority Languages a hard core of rights which would be accepted en bloc by the Contracting Parties.
Lastly, the drafting of an additional protocol to the European Convention on Human Rights, to supplement the two above-cited conventions, setting out clear, enforceable rights, as proposed in Recommendation 1201 (1993), remains as relevant as ever; some of the provisions could be taken into consideration in the draft protocol currently being prepared on cultural rights.
I. Draft recommendation
1. Once more the Assembly stresses the great importance it attaches to the effective protection of the rights of national minorities in Europe.
2. It has shown its great interest in the matter by holding five debates and adopting an equal number of recommendations to the Committee of Ministers since 1990, including the present one.
3. In the same period, two new Council of Europe Conventions dealing with minority rights were opened for signature and ratification. They are the European Charter for Regional or Minority Languages (1992) and the Framework Convention for the Protection of National Minorities (1995). The Assembly fully supports these Conventions.
4. As much depends on the way they are to be implemented, the Assembly's Committee on Legal Affairs and Human Rights is studying whether it might be possible, in the Charter for Regional or Minority Languages, to arrive at a minimum hard-core of rights which should be accepted by every Contracting Party in respect of the minority or regional languages it designates. Such a hard-core would not form part of the Convention as such but could be submitted as a recommendation to (prospective) Contracting States.
5. For the implementation of the Framework Convention the Committee of Ministers will be assisted by an advisory committee, the composition and procedure of which is still to be determined by the Committee of Ministers. It is essential that this advisory committee is independent. The success of the Convention may well depend on the way it accomplishes its task.
6. The European Charter for Regional or Minority Languages has been ratified by Finland, Hungary and Norway and signed by Austria, Cyprus, Denmark, Germany, Liechtenstein, Luxembourg, Malta, Netherlands, Romania, Spain and Switzerland.
7. The Framework Convention for the Protection of National Minorities has been ratified by Hungary, Romania, Slovakia and Spain and signed by Albania, Austria, Cyprus, Czech Republic, Denmark, Estonia, Finland, Germany, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Netherlands, Norway, Poland, Portugal, San Marino, Slovenia, Sweden, Switzerland, Ukraine and the United Kingdom.
8. Respectively 5 and 12 ratifications are necessary for these Conventions to enter into force.
9. It is furthermore essential that these two Conventions be complemented by an additional protocol to the European Convention on Human Rights setting out clearly defined rights which individuals may invoke before independent judiciary organs.
10. The Summit of Heads of State and of Government of Council of Europe member states (Vienna, October 1993) instructed the Committee of Ministers "to begin work on drafting a protocol complementing the European Convention on Human Rights in the cultural field by provisions guaranteeing individual rights, in particular for persons belonging to national minorities".
11. The Assembly, in its Recommendation 1231 (1994), "deeply regretted" that the Summit did not follow the Assembly's proposal made in Recommendation 1201 (1993) on an additional protocol on the rights of national minorities to the European Convention on Human Rights.
12. Yet, if a "maximalist" approach were to be made for the new protocol the Assembly might be satisfied as many of the rights of minorities are either already covered by the Convention itself or may be considered as "cultural" rights.
13. Pending the outcome of the work of the Committee of Ministers, the Assembly will continue to use the proposal for an additional protocol to the Human Rights Convention concerning persons belonging to national minorities, included in Recommendation 1201 (1993) as a reference text. It will closely follow and monitor the activities described above.
14. In conclusion, the Assembly recommends that the Committee of Ministers:
i. invite the 24 member states which have not yet signed the European Charter for Regional or Minority Languages and the 35 member states which have not yet ratified it to do so as soon as possible;
ii. invite those member states which have not yet done so to sign and ratify the European Charter of Local Self-Government as soon as possible (there are now 25 signatures and 21 ratifications);
iii. invite those member states which have not yet done so to sign and to ratify the Framework Convention for the Protection of National Minorities as soon as possible (there are now 31 signatures and 4 ratifications);
iv. make sure that the advisory committee to be set up as soon as the Framework Convention enters into force is as independent, effective and transparent as possible, for instance by:
a. providing for a committee on which there is one member from each of the Contracting States;
b. ensuring that the members of the committee should combine a specific legal knowledge in the field of minorities with political wisdom;
c. providing for its election on the same lines as the European Commission of Human Rights or the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment;
d. allowing the committee to draw its information from a wide range of sources and to act on its own initiative;
e. allowing the committee also to enter into a dialogue with the government of the contracting Party concerned as well as with national minority groups and to publish its reports and recommendations with the authorisation of that government or, in special cases, without such authorisation;
v. consult the Assembly before making its final decisions on the advisory committee;
vi. bring to a satisfactory and rapid conclusion its work on a draft protocol to the European Convention on Human Rights "in the cultural field by provisions guaranteeing individual rights, in particular for persons belonging to national minorities" and make it as comprehensive as possible;
vii. insist on formulating the obligations incumbent on states as precisely as possible, so as to make the rights to be conferred upon individuals by states clear and justiciable;
viii. submit this draft protocol, once concluded, to the Assembly for its opinion;
ix. inform the Assembly of the work carried out in 1995 by the Ad Hoc Committee for the Protection of National Minorities (CAHMIN);
x. consider - pending studies to be made by the Assembly's Committee on Legal Affairs and Human Rights and by the European Commission for Democracy through Law - recommending a "hard-core" of rights to be accepted by all Contracting States to the European Charter for Regional or Minority Languages.II. Draft order
1. The Assembly refers to its Recommendation ... (1996) and to all its previous texts on the protection of national minorities and their rights which has become one of the major assignments of the Council of Europe and is likely to remain so in the near future.
2. The Assembly therefore instructs its Committee on Legal Affairs and Human Rights:
i. to consider the action taken to follow up Recommendation ... (1996);
ii. to closely follow the ratification and implementation of the European Charter for Regional or Minority Languages (1992), of the Framework Convention for the Protection of National Minorities (1994) and of the European Charter of Local Self-Government;
iii. to make sure that the advisory committee to be set up by the Committee of Ministers, in accordance with Article 26 of the Framework Convention, may be as independent, effective and transparent as possible;
iv. to further examine the ways in which the European Charter for Regional or Minority Languages may be most effectively implemented as well as the other Council of Europe instruments of importance to the protection of national minorities;
v. to study, with the help of the European Commission for Democracy through Law (Venice Commission), whether it is possible to arrive at a hard-core of rights in the European Charter for Regional and Minority Languages, to be accepted by all Contracting States to that Convention;
vi. to closely follow the elaboration, by the Committee of Ministers, of a protocol complementing the European Convention on Human Rights "in the cultural field by provisions guaranteeing individual rights, in particular for persons belonging to national minorities".
3. Furthermore, the Assembly, referring to its Orders Nos. 474 (1993), 484 (1993) and 501 (1995), instructs the Committee on Legal Affairs and Human Rights to continue its work on minorities, particularly concerning mediation.
4. The Political Affairs Committee and the Committee on Migration, Refugees and Demography should give their opinions on these matters if they deem fit to do so.
5. The Assembly also instructs its competent committees (Political Affairs Committee, Committee on Legal Affairs and Human Rights and Committee on Relations with European Non-Member Countries) and their rapporteurs to continue taking into account the above-mentioned Conventions as wells as the draft for an additional protocol to the European Convention on Human Rights on the rights of national minorities included in Recommendation 1201 (1993) in the procedures on the admission of new member states and the "monitoring" process of the commitments accepted upon accession to the Council of Europe.
III. Explanatory memorandum
by Mr BINDIG
1. National minorities and the protection of their rights have become a matter of considerable and topical interest since the late 80s and continue to be so during the present decade. Given the important legal aspects of the question the Committee on Legal Affairs and Human Rights has been dealing very actively with it and the present report is the fifth in a number of documents which the Committee has been submitting since 19902. Moreover, a recent motion shows that the Assembly's interest is far from waning3. At the intergovernmental level it cannot be said that the Committee of Ministers has remained idle. On the contrary! During this five-year period two legal instruments were opened for signature, ie the European Charter for Regional and Minority Languages in 1992 and the Framework Convention on the Protection of National Minorities in 1995 and work is going on in view of a draft protocol to the Human Rights Convention.
2. The aim of this report is, first of all, to inform Assembly members of the work carried out, the progress made and what is still to be accomplished. Secondly, it will indicate where Assembly action and vigilance is still desirable, or indeed, necessary.
B. The Framework Convention for the Protection of National Minorities
3. It was certainly with great speed that the Framework Convention for the Protection of National Minorities was drawn up. Two years ago, at the Vienna Summit in October 1993, the Heads of State and Government of the Council of Europe member states instructed the Committee of Ministers "to draft with minimum delay a framework convention specifying the principles which Contracting States commit themselves to respect, in order to assure the protection of national minorities". The Committee of Ministers and - under its responsibility - the Ad Hoc Committee for the Protection of National Minorities (CAHMIN) worked hard to carry out these instructions. As a result, the new Convention was adopted by the Committee of Ministers on 10 November 1994 and opened for signature by the member states on 1 February 1995. On that date 21 member states signed the Convention4. Ten member states have signed subsequently5. The Convention is open for signature by any other state so invited by the Committee of Ministers (Article 27). At the time this report was drafted such a request from Croatia was still pending.
4. Thus, with the Framework Convention a number of Council of Europe records seem to have been broken. This is also the case with the number of 12 ratifications required before the Convention can enter into force! At the end of November 1995, Hungary, Romania, Slovakia and Spain had ratified the Convention. In Council of Europe circles one is confident that the required number of 12 ratifications will be reached by the end of 1996. Once this number has been reached the Convention will enter into force after a period of three months has expired. The Assembly should follow the ratification procedure but - of course - one must give member states sufficient time to prepare the ratification process.
5. When the Framework Convention was concluded, President Martínez took the initiative of writing to the Ministers of Foreign Affairs in our member states to inform them of the Assembly's interest in the Convention. The week of the opening for signature ceremony the Assembly adopted, under urgent procedure, its Recommendation 1255 (1995). Subsequently, the Committee on Parliamentary and Public Relations prepared model questions to be put by its members in national parliaments and the Assembly's rapporteurs responsible for the accession and monitoring procedures stressed the importance of the Convention (together with the draft protocol of Recommendation 1201 (1993)) on every possible occasion.
6. The Convention is to be monitored by the Committee of Ministers (Article 24). Full information on the legislative and other measures taken to given effect to the principles set out in the Framework Convention must be transmitted by every Contracting State which should continue to provide any further information of relevance on a periodical basis and whenever the Committee of Ministers so requests (Article 25).
7. A matter where the Assembly should remain vigilant is the advisory committee provided for in Article 26 of the Convention. This Article reads as follows:
"1. In evaluating the adequacy of the measures taken by the Parties to give effect to the principles set out in this framework Convention the Committee of Ministers shall be assisted by an advisory committee, the members of which shall have recognised expertise in the field of the protection of national minorities."
Although, in accordance with section 2 of Article 26, the composition of this advisory committee and its procedure shall be determined by the Committee of Ministers within a period of one year following the entry into force of the Framework Convention, there is nothing preventing the Committee of Ministers from studying this matter beforehand. In fact, for the effective implementation of the Convention, the composition and the procedures of the advisory committee are of the utmost importance. The advisory committee should be able to consider information from sources other than from the governments alone and it should be as independent as possible. Its procedures should be transparent and it should be allowed to carry out a real dialogue with the governments. The best procedure for its election would be one similar to that of the European Commission of Human Rights or the European Committee for the Prevention of Torture, ie election by the Committee of Ministers from a list of names drawn up by the Bureau of the Assembly, on the basis of three candidates put forward by the national delegation to the Assembly.6
8. The advisory committee should play a crucial role in the implementation of the Convention but it will only be able to do so if its members are of the same high standing as the members of the two above-mentioned committees or of the European Commission for Democracy through Law ("Venice Commission"). They should combine a specific legal knowledge in the field of minorities with political wisdom. The advisory committee is even more important as the Framework Convention is weakly worded and formulates a number of vaguely defined objectives and principles, the observation of which will be an obligation of the Contracting States but not a right which individuals may invoke.
9. No doubt the standing, procedures and working methods of the advisory committee will determine the scope of the monitoring procedure, the effectiveness of which in turn will determine the success of the Framework Convention. A number of questions are to be solved in this respect. For instance, what will be the sources of information of the Committee of Ministers and the advisory committee? Will they rely only on information provided by the governments or also on information from NGOs and/or the minorities themselves? Will they limit themselves to information submitted or will they actively research information? What will be the outcome and the results of all this work? Will there be recommendations of the Committee of Ministers to certain member states and to what extent the monitoring system will be transparent and the Assembly and the public in general be informed of its results?
10. In all this one should not forget that the aim of the Framework Convention is to ensure the protection of and respect for persons belonging to national minorities. The Convention can only serve its purpose usefully if it has the trust of those it seeks to protect. A system that remains exclusively in the hands of states would leave little to identify with to persons belonging to national minorities.
11. All this is a matter which the Assembly should follow closely.
C. The work carried out on an additional protocol to the European Convention on Human Rights
12. In its Recommendation 1201 (1993)7 the Assembly recommended that the Committee of Ministers adopt an additional protocol on the rights of national minorities to the European Convention on Human Rights. However, at the Vienna Council of Europe Summit in October of the same year, the Heads of State and of Government instructed the Committee of Ministers of the Council of Europe to begin work on drafting a protocol complementing the Convention in the cultural field, by provisions guaranteeing individual rights, in particular for persons belonging to national minorities.
13. The Assembly was disappointed with this decision but finally decided it could live with it, especially as national minorities were included in the decision. Moreover, many rights of importance to minorities such as the right to privacy, family life, religion, freedom of expression and freedom of association, etc. are already included in the Convention. In addition, of the rights to be guaranteed to minorities, most could be considered of a cultural nature anyway. As an appendix to the Assembly's previous Recommendation on minorities8 it listed those provisions which had been included in Recommendation 1201 (1993) that might be included in an additional protocol on cultural rights. They are the following rights:
- Right to express, preserve and develop one's cultural identity
- Exercise of the rights and freedoms by persons belonging to national minorities
- Equality before the law and non-discrimination
- Right to use the minority language
- Right to use first names and surnames in the minority language
- Right to use the minority language in the relations with the administration
- Right to display local names, street names, etc. in the minority language
- Right to learn and receive education in the minority language
- Right to set up and manage schools, educational and training establishments
- Right to an effective remedy
- Right to free and unimpeded contacts with the citizens of another country.
14. How happy the Assembly would be if a protocol were to see the light including all these rights! Yet they are not even the maximum number of rights for inclusion in a protocol one may think of. The Ad Hoc Committee on Minorities considered a number of other possibilities which it listed in its report to the Committee of Ministers last Spring. This report was submitted to the Assembly in the joint interim reply to the four recommendations of the Assembly on the rights of minorities9.
15. Before including a new right in the Convention a number of question should be asked:
- Is the right to be protected a universal and fundamental right?
- Is the right additional to the rights already guaranteed by the Convention and its protocols or, on the contrary, is it covered by any of these provisions or by the jurisprudence of the Commission and Court of Human Rights?
- Does it correspond to a real need?
- Is it capable of sufficiently precise formulation to impose clear obligations on the state and to confer clear rights to the individual? (Is it "justiciable"?)
16. It is not easy to answer these questions. The Committee of Ministers, in fact, has to consider all the aspects of these questions, not only the legal but also the economic, cultural, social and political aspects.
17. In the Committee on Legal Affairs and Human Rights one should watch carefully that new rights to be included are not already covered by existing provisions. The rights to be included in the protocol should not restrict the scope of rights currently guaranteed by the Convention and its protocols. In this respect one must recall that the Convention is a "living" instrument and that the Commission and Court's interpretation of its provisions may vary. The danger of adding a specific separate right in an additional protocol to the Convention is that one may argue that a contrario this must imply that the legislator considers that this right is not covered by any existing provisions of the Convention. Without protocol it might well be covered by extensive and teleologic interpretation! Thus a new protocol might be counter-effective for the protection of human rights in those member states which do not ratify the protocol. This danger is far from imaginary and might concern the provisions of Article 8 (respect for private and family life, home and correspondence), Article 9 (freedom of thought, conscience and religion), Article 10 (freedom of expression), Article 11 (freedom of peaceful assembly and of association) of the Convention and Article 2 of the first protocol (right to education). However, as said before, the list of rights included in paragraph 13 of Doc 7316 and the list appended to our Recommendation 1255 are maximalist approaches whereas - it appears - the Ad Hoc Committee is now aiming at a very minimalist approach.
18. Obviously the Ad Hoc Committee does not want to go beyond a legal and administrative approach and, in order to go further, clearly needs the instructions of the Committee of Ministers - instructions which can only be given at a political level. The profound concern of many Assembly members about the coming into being of the protocol is one of the main reasons for this report. The draft protocol is now in a very crucial period the outcome of which depends on the Committee of Ministers. Will there be an anodyne legal instrument with hardly any substance, repeating more or less what exists already and can be deducted from the existing provisions of the Convention? Or, alternatively will the Committee of Ministers take the politically delicate step of taking the legal protection of minorities and the protection of cultural rights a few steps further? A clear political signal from the Assembly in favour of the latter option might give the necessary impetus to the Committee of Ministers.
19. No doubt the Committee of Ministers should consider that many of the national minorities in our member states and many of our new member states and of the applicant states are expecting the Council of Europe to do something tangible for the protection of the rights of minorities. Something which is useful and practical on the one hand and does justice both to minorities and majorities on the other hand. In fact, what one is hoping for is a well-balanced standard-setting legal instrument which should contribute to keeping or bringing about peaceful relations between different national groups in many of these countries. Failing to draw up such a protocol would not only be detrimental to the case of majorities and the peoples in Europe but, in addition, would considerably harm the prestige of the Council of Europe, especially after so much hope and faith have been expressed in this Organisation.
D. The European Charter for Regional or Minority Languages
20. The European Charter for Regional or Minority Languages was opened for signature in November 1992. Eleven member states signed this Convention immediately, Switzerland did so in 1993 and Romania in 1995. The number of ratifications required for its entry into force is five but, until now, only three member states have done so. They are Finland, Hungary and Norway.
21. Ratification of the Charter will mean that the Contracting State will apply a number of provisions of it to one or several minority or regional languages on its territory. In accordance with Article 3 the Contracting State must specify to which regional or minority languages the Charter applies and it may therefore well be that one or several of the most important minority languages are being left out. Norway, which was the first member state to ratify the Charter in 1993, applies a certain number of paragraphs and sub-paragraphs to the Saami language. Finland, which ratified a year later, applies the Convention to the Sami language, the Swedish language and to the Romany language. The Saami language in Finland is a regional or minority language whereas the Swedish language is the less widely used official language of the country. With a few exceptions the same provisions of the Charter apply to both languages. With respect to the Romany language and to the other non-territorial languages in Finland the principles listed in paragraphs 1-4 of Article 7 of the Charter apply. Hungary ratified the Charter in April 1995. Here the same provisions of the Charter apply to the Croatian, German, Romanian, Slovak and Slovene languages.
22. It is clear that the Charter gives a wide margin of choice to each of the Contracting Parties which must, in accordance with Article 2 paragraph 2 of the Charter, undertake to apply a minimum of 35 paragraphs or sub-paragraphs chosen from among the provisions of Part III of the Charter, including at least three chosen from each of the Articles 8 and 12 and one from each of the Articles 9, 10, 11 and 13. As there are more than 90 such paragraphs and sub-paragraphs the result is likely to be that among the member states to be bound by the Convention once the number of five ratifications has been reached, the provisions which apply will be completely different. The effect will no doubt be a kind of minimum protection of the minority languages but this minimum protection will be different in every Contracting State.
23. The problems set out in the previous paragraph have been a matter of concern in the Committee on Legal Affairs and Human Rights which felt that it would be useful if the Charter were to bring about some kind of harmonisation. It has therefore asked the advice of the Venice Commission on the question whether it might be possible to arrive at a minimum hard-core of rights which should be accepted by every contracting Party in respect of the minority or regional languages it designates. Such a hard-core would not form part of the Convention as such but it could be included in a recommendation of the Parliamentary Assembly to the Committee of Ministers. The Committee hopes to present the results of this study in a later report to the Assembly.
E. The European Charter of Local Self-Government
24. During the discussions of this report several members of the Committee on Legal Affairs and Human Rights stressed the importance of the European Charter of Local Self-Government, opened for signature and ratification in 1985 (ETS 122) for the protection of minorities and it was decided to make reference to this Council of Europe Convention both in the draft recommendation and in the draft order.
F. Recommendation 1201 (1993) on an additional protocol on the rights of national minorities to the European Convention on Human Rights
25. The most important feature of this recommendation is, of course, that it included the text of a proposal for an additional protocol to the Human Rights Convention concerning persons belonging to national minorities. This proposal for a protocol is an integral part of the recommendation. In addition to a definition of the expression "national minority" it contains a number of general and substantive rights for the protection of persons belonging to national minorities.
26. The first draft for this protocol had been proposed by my predecessor, Mr Jean-Pierre Worms, to the Committee on Legal Affairs and Human Rights. It was subjected to many amendments both in committee and on the Assembly floor but in the end these amendments in no way weakened the text. On the contrary, it may be said that the draft protocol which came out of all these discussions was strengthened and had lost nothing of its consistency. The Assembly had hoped that the heads of state and of government of Council of Europe member states would make this draft protocol the subject of their further studies, but - as I pointed out in Chapter C of this report - the Vienna Summit of October 1993 preferred a protocol complementing the Human Rights Convention in the cultural field by provisions guaranteeing individual rights, in particular for persons belonging to national minorities.
27. As I set out above, the work on such a new protocol is still going on and, pending this activity, the Assembly decided that it should continue to use the principles of Recommendation 1201 (1993) and its draft protocol as reference. Thus, when accepting new member states to the Council of Europe, the Assembly considered it as a "commitment" entered into by the new member states to conduct a policy along the principles set forth in this Recommendation.10 This commitment constitutes an obligation both of a legal and of a political nature to the Council of Europe. In the "monitoring" process the rapporteurs of the three Assembly committees concerned normally deem it useful to verify whether the new member states concerned apply its principles. In a number of member states the recommendation has therefore become a text which is much better known than the average Assembly recommendation. Most important of all is that specific reference to Recommendation 1201 (1993) is made in the Friendship Treaty between Hungary and the Slovak Republic which was ratified by Hungary and is now awaiting ratification by Slovakia. A similar reference might also be introduced in a friendship treaty between Hungary and Romania but some problems have arisen as to the interpretation of some of the provisions of the draft protocol.
28. In particular Article 11 of the proposal for an additional Protocol gave rise to differences of opinion.
This article reads as follows:
"In the regions where they are in a majority the persons belonging to a national minority shall have the right to have at their disposal appropriate local or autonomous authorities or to have a special status, matching the specific historical and territorial situation and in accordance with the domestic legislation of the state."
The following observations may be made :
i. In accordance with the draft Protocol the expression "national minority" is restricted. The definition is to be found in Article 1 of the draft Protocol.
ii. The provision of Article 11 is not cumulative. It provides for three alternatives :
- appropriate local authorities
- appropriate autonomous authorities
- a special status
iii. There are three conditions in this article which must all be met:
- the authorities mentioned in Article 11 or the special status must :
. match the specific historical and territorial situation;
. be in accordance with the domestic legislation of the state;
. be appropriate.
iv. The concepts of "autonomy", "appropriate", "matching the specific historical and territorial situation" and "domestic legislation of the state" may all give rise to difficult problems of interpretation.
v. In addition there is the general condition of Article 14 of the draft protocol which allows for the limitation of the exercise of the rights and freedoms listed in the Protocol. It reads:
"This exercise may be made subject to such formalities, conditions, restrictions or penalties as are prescribed by Law and necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others".
29. Furthermore, I would like to draw the attention to Article 13 of the proposal for a Protocol which says that "the exercise of the rights and freedoms listed in this protocol fully applies to the persons belonging to the majority in the whole of the state but who constitute a minority in one or several of its regions". Therefore, what applies to one group, would mutatis mutandis also apply to another group if it were to find itself in a similar situation.
30. Finally, the proposal for a Protocol, in its Articles 7 and 8, contains provisions on linguistic rights of minorities. These rights are not absolute and are also submitted to a number of restrictions. Mr Worms, Rapporteur of the Committee, in his explanatory memorandum to the proposal for a Protocol (see Doc 6742) writes in his comments on Article 8 that "these rights do not include that of receiving a general education taught in one's mother tongue in state schools, nor do they exclude that right. Lastly, it is stated that the right to learn once mother tongue does not exclude the possibility of being obliged to learn mathematics and the official language(s) (of the country)!"
31. At its meeting of 29 June 1995, the Committee on Legal Affairs and Human Rights asked me to proceed with an interpretation of these and, possibly, other articles of the draft protocol in Recommendation 1201 (1993) but, realising that this was a highly important and delicate issue, I proposed that the Committee seek the advice of experts in international law and, in particular, the rights of minorities, and it was decided to consult the Venice Commission. It is hoped that the Committee may have the findings of the Venice Commission in the Spring of next year.
32. No doubt the Assembly will wish to continue lending its support to the two existing legal instruments of the Council of Europe in the field of minorities, make sure that more member states will ratify them and that they enter into force as soon as possible. Where the European Charter on Regional or Minority Languages is concerned, the Committee on Legal Affairs and Human Rights will investigate, with the help of the Venice Commission, whether it is possible to arrive at a kind of hard-core of rights to which every Contracting State to that Convention should subscribe. In respect of the Framework Convention for the Protection of National Minorities, the Assembly should be vigilant and try to obtain that the advisory committee to be set up in accordance with the provisions of this Convention be as independent, effective and transparent as possible. The composition, role and functioning of this Committee may well be the subject of a special meeting of the Sub-Committee on Human Rights.
33. The Assembly should also closely monitor the draft protocol on cultural rights to the Convention on Human Rights. The Committee of Ministers will have to make a number of very important decisions. Some of its options are: i. the adoption of a protocol including a number of minimal rights; ii. observe a certain moratorium in its further action, hoping that in the meantime some more international standards in respect of minorities may be established enabling it to draw up a protocol in the future or iii. simply abandon the whole activity. Neither of these solutions will be welcome to the Assembly, which for many years has now been working for a maximal solution for the protection of minorities, ie an effective and complete protocol to the Convention.
34. In addition to this the Committee on Legal Affairs and Human Rights will continue its own work which will include an interpretation of the draft protocol included in its Recommendation 1201 (1993) with the help of the Venice Commission.
35. In the past the proposal has been made for a legal instrument on mediation or for a Council of Europe mediator in the field of minorities. This is certainly a very important and attractive proposal and may merit the close attention of our Assembly. Yet the need for such a Council of Europe mediator does not seem to be immediate in the present context. In fact, the OSCE has a high commissioner on national minorities (Mr van der Stoel) and the Organisation of Baltic States appointed Mr Espersen as their mediator for human rights. Both are former members of the Assembly and are doing an excellent job. For the moment there is therefore no reason for the Council of Europe to take initiatives of its own. It might, however, return to the matter at a later stage.
36. Finally, it may be said that this report highlights the legal and political aspect of the rights of minorities and does not aspire to be complete in respect of all Council of Europe activities. No doubt the activities of the Council of Europe in the cultural field and all its confidence-building measures, the conferences it holds and the assistance it gives to applicant and to non-member states are of great importance but the scope of this report does not allow for dealing with all this in detail.
Reporting committee: Committee on Legal Affairs and Human Rights
Budgetary implications for the Assembly: none
Reference to committee: Order No. 501 (1995)
Draft recommendation and order adopted unanimously by the committee on 11 December 1995
Members of the committee: Mrs Err (Chairperson), MM Schwimmer, Jansson, (Vice-Chairpersons), Amaral, Arbnori, Bartumeu Cassany, Berti, Bindig, Bučar, Candal, Cimoszewicz (alternate: Bartodziej), Cioni, Columberg, Dees (alternate: Jurgens), Deniau, Endziņš, Fenech, Fogaš, Frunda, Fry, Fuhrmann, Galanos (alternate: Christodoulides), Mrs Gelderblom-Lankhout, MM Grimsson, Guenov, Hagĺrd, Mrs Holand, Mr Hunault, Mrs Jaani, MM Jaskiernia, Jeambrun, Kairys (alternate: Bobelis), Karas, Kirca (alternate: Mimaroglu), Kirkhill, Koschyk, La Russa, Loutfi, Maginas, Magnusson, McDowell, Mészáros, Moeller (alternate: Kaalund), Németh, Poppe, Rathbone, Rhinow, Robles Fraga (alternate: Lopez Henares), Rodeghiero, Rokofyllos, Severin, Simonet, Solé Tura, Solonari, Trojan, Weyts, Mrs Wohlwend.
N.B. The names of those members who took part in the vote are printed in italics.
Secretaries to the committee: Mr Plate and Ms Kleinsorge.
1 1By the Committee on Legal Affairs and Human Rights
2 1 Docs 6294, 6556, 6742 and 7228 which resulted respectively in Recommendation 1134 (1990) and Recommendation 1177 (1992) on the rights of minorities, Recommendation 1201 (1993) on an additional protocol on the rights of minorities to the European Convention on Human Rights and Recommendation 1255 (1995) on the protection of the rights of national minorities.
3 2 See Doc 7412.
4 3 Austria, Cyprus, Denmark, Finland, Hungary, Iceland, Ireland, Italy, Liechtenstein, Lithuania, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland and the United Kingdom.
5 4 Albania, Czech Republic, Estonia, Germany, Latvia, Luxembourg, Malta, Moldova, San Marino and Ukraine.
6 1 Article 21 ECHR, Article 45 Anti-Torture Convention.
7 1 See Chapter E below.
8 2 Recommendation 1255 (1995).
9 1 See Doc 7316 of 1 June 1995.
10 1 See Opinion No 183 (1995) on the accession of Latvia, Opinion No 188 (1995) on the accession of Moldova, Opinion No 189 (1995) on the accession of Albania, Opinion No 190 (1995) on the accession of Ukraine and Opinion No 191 (1995) on the accession of the former Yugoslav Republic of Macedonia.