Doc. 9813

22 May 2003

Preferential treatment of national minorities by the kin-state: the case of the Hungarian law of 19 June 2001 on Hungarians living in neighbouring countries ("Magyars")

Opinion1

Political Affairs Committee

Rapporteur: Mr Latchezar Toshev, Bulgaria, Group of the European People’s Party

1.       Conclusions of the Committee

1.       The Political Affairs Committee supports on the whole the conclusions of the report by the Committee on Legal Affairs and Human Rights concerning the situation which has arisen following the adoption, in Hungary, of the Law on Hungarians living in neighbouring countries.

2.       It is fully aware of the specific historical circumstances responsible for the presence of the large Hungarian minorities in the neighbouring countries to Hungary created by the break-up of the former Austro-Hungarian Empire.

3.       It also understands the wish to preserve the linguistic and cultural identity of these minorities and to foster their social and economic well-being and their links with the kin-state which guided the Hungarian authorities in enacting this law.

4.       At the same time, it notes that the adoption of the law has aroused concerns and negative reactions by Romania and Slovakia.

5.       It further notes that many Council of Europe member countries have already completed, or are engaged in, the enactment of laws securing preferential treatment to foreign citizens who have ethnic, linguistic or cultural bonds of kinship with them.

6.       The Committee therefore deems it most important that the Council of Europe should lay down the common principles to be observed in this area. It accordingly welcomes the Venice Commission’s report which establishes the groundwork of such principles.

7.       It wholeheartedly endorses the assertion that the prime responsibility for protecting the minorities rests with the home-states. Likewise, the protection of persons belonging to the national minorities is a subject of the international community’s concern. In this respect, the international community is expected to act, whenever necessary, in a multilateral way and by such measures which should not substitute or harm the citizenship relations between the members of national minorities and their home-states.

8.       The kin-states can contribute to this by fulfilling certain conditions, the first of which is the acceptance of their contribution by the home-state. Such assistance should preserve the balance between protection of the minority’s identity and the sovereignty of the home-state, and should in no circumstances be intended to weaken the minority’s links with its state, much less fuel separatist sentiments.

9.       In several Council of Europe countries, the issue of national minorities assumes an extremely delicate quality and readily lends itself to political exploitation or even to abuse for nationalistic and populist ends. It thus demands exemplary prudence on the part of political leaders.

10.       The Committee regrets that the Law of 19 June 2001 was adopted without sufficient acceptance by the governments of the countries whose citizens are concerned by the Law in question of extra-territorial measures to be applied to their territories and joins in the invitation to the Hungarian Government and Parliament to continue dialogue with the states concerned in order to find mutually acceptable solutions and to amend the Law in a manner acknowledging the criticisms of the international organisations.

11.       The Committee welcomes the commitment by the Hungarian authorities to amend the Law in accordance with the recommendations of the Venice Commission. It regrets, however, that this commitment has not been implemented so far.

12.       The Committee welcomes the memorandum of understanding between Hungary and Romania on this issue as it is a positive step towards the desirable bilateral approach in this respect.

Proposals for amendments to the draft Resolution

Amendment 1

Replace paragraph 8 with the following text:

“On the basis of the aforementioned report by the Venice Commission, the possibility for States to adopt unilateral measures on the protection of their kin-minorities, irrespective of whether they live in neighbouring or in other countries, is only conditional upon the respect of the following principles: territorial sovereignty, pacta sunt servanda, friendly relations amongst states and respect for human rights and fundamental freedoms – in particular the prohibition of discrimination. States should abstain from taking unilateral measures, which would risk compromising the climate of co-operation with other states”.

Amendment 2

Delete paragraph 10, with the exception of the last sentence.

2.       Explanatory memorandum by the Rapporteur

Introduction

1.       On 25 and 26 November 2002, I visited Budapest in connection with the drafting of this Opinion. Since the report for which a reference was made to the Committee on Legal Affairs and Human Rights (Rapporteur M. Jurgens) had not yet been adopted, the purpose of my contacts was to examine the situation of the minorities in Hungary and that of the ethnic Hungarians living in the neighbouring countries, and to form an idea of the circumstances which prompted the Hungarian authorities to enact the controversial law at issue, as well as its implications. The programme of the visit is set out in Appendix I.

2.       On 3 March 2003 the Committee on Legal Affairs and Human Rights adopted the report by Mr Jurgens (Doc.9744).

3.       On 5 March 2003 the Political Affairs Committee discussed the preliminary draft opinion that I proposed and postponed its adoption to enable it to take account of the final version of the report by the Committee on Legal Affairs and Human Rights. On that occasion the representatives of Romania and Slovakia regretted that their views had not been taken into account.

4.       On 11 March 2003 the Head of the Romanian Delegation invited me to visit Bucharest. The visit took place on 20 and 21 March 2003 and the programme is set out in Appendix II.

5.       On 9 April 2003 the Head of the Slovakian Delegation in turn invited me to visit Bratislava before the meeting of the Political Affairs Committee scheduled for 29 April 2003. However, due to the lack of time and bearing in mind the need to make the draft Opinion available to the members of the Political Affairs Committee at least one week ahead of the meeting, I was unable to honour this kind invitation.

6.       My intention is not to produce a counter-report designed to compete with the sound and indeed remarkable work done by the Committee on Legal Affairs and Human Rights, but to help reconcile the parties on the basis of a mutually acceptable compromise, respecting the dignity and promoting a good will of all parties involved it this case in the European spirit of co-operation.

Background to the problem

7.       As a result of the redrawing of frontiers at the end of the First World War (Treaty of Trianon), territories with significant Hungarian population became parts of the neighbouring States. While being full citizens of these states, the descendants of the population in question retain the language, culture and traditions of their old kin-state. The number of citizens of Hungarian origin is particularly large in Romania (more than 1.5 million) and in Slovakia (500 000, constituting 10% of the population).

8.       The Hungarian minorities are well organised socially and politically and play a significant part in their national political life (several ministers in Slovakia’s present cabinet belong to the Hungarian Party). However, since the reforms of the 1990s, many Hungarians abroad contemplate leaving their countries to settle in Hungary, and this process is likely to grow as the country’s accession to the EU approaches. This trend, however, is not valid relating to the Slovak Republic.

9       The Hungarian authorities have therefore embarked on a policy of support to the Hungarian minorities living in the neighbouring countries, with the dual goal of fostering their links and the sense of belonging to the “Hungarian nation” and at the same time ensuring that they “feel happy where they live” without wishing to move to Hungary. The law of 19 June 2001 introduced a series of economic, social, cultural and educational measures from which Hungarians living in the neighbouring countries to Hungary (Austria excepted) may benefit provided that their status as such is recognised.

10       Although this law does not constitute (in the region any more than elsewhere) a novel instance of preferential treatment granted by a state to individuals who have links of “kinship”, it has aroused a great deal of anxiety in Romania and Slovakia where the Hungarian authorities have been suspected of interference in domestic affairs and of wishing to recreate Hungary within its former borders.

11.       As the minorities question remains too sensitive throughout South-East Europe not to be exploited for political gains, the nationalist parties in Romania and Slovakia could hardly hope for more in the run-up to elections.

12.       The moderate political forces of these two countries have likewise taken the field. Romanian members (Mr Prisacaru and others) tabled in the Assembly a motion for a recommendation on the Law on Hungarians living in neighbouring countries, passed on 19 June 2001 by the Hungarian Parliament (Doc. 9153). Concurrently, a motion for a recommendation seeking a general approach to the issue was tabled by Mr van der Linden (Doc. 9163, motion for a recommendation on Trans-frontier co-operation in preserving the identity of national minorities).

13.       On 21 June 2001 the Romanian Prime Minister, Mr Nastase, requested the Venice Commission to examine the conformity of the law in question with the provisions of international law. On 2 July 2001, the Hungarian Government, for its part, asked the Venice Commission to make a comparative study of European legislation on the subject.

14.       On 20 October 2001 the Venice Commission adopted a report on the preferential treatment of national minorities by their kin-state, setting out the basic principles of international law which should guide states when they wish to assist their kin-minorities living abroad. The rapporteur shares the view of the Committee on Legal Affairs and Human Rights that some of these principles were not complied with when Hungary adopted the law in question.

15.       The matter was also laid before the OSCE High Commissioner for Minorities. On 26 October 2001 he pointed out unilateral measures taken by states to protect national minorities living outside their jurisdiction could cause tension and should be avoided.

16.       In its 2001 regular report on Hungary’s progress towards accession, published on 13 November 2001, the European Commission considered that some provisions of the Hungarian law in question conflicted with the conception of the protection of minorities prevailing in Europe.

17.       In the face of international criticism, the Hungarian authorities embarked on consultations with neighbouring states on the implementation of the law. On 22 December 2001 the Hungarian and Romanian Governments signed a memorandum of understanding establishing a system for derogating from the implementation of the law in respect of Romanian citizens, thus meeting the immediate concerns of the Romanian side. In addition, the Hungarian Government undertook to revise the law and make the necessary amendments to it no later than six months after the signature of the memorandum of agreement.

18.       Unlike the talks between Romania and Hungary, the negotiations between Slovakia and Hungary did not bring the parties' positions closer together. However, the memorandum of understanding between Hungary and Romania is a positive step towards the desirable bilateral approach in this respect.

19.       The new Hungarian Government formed by Mr Medgyessy as a result of the elections held in April 2002 has acknowledged the expediency of amending the law so as to reformulate those of its elements that alarm the neighbouring states while preserving its spirit and the machinery put in place. All the political parties in the country have agreed that they would support amendments proposed by the government which have also received the approval of the “standing committee” of the Hungarian parties (including those in other countries). To date, however, these amendments have still not been adopted.

Positions of the parties

a.       Hungary

20.       At the time of my visit, most of my Hungarian informants seemed to agree that the law would have to be amended to comply with the principles laid down by the Venice Commission. However, they emphasised the soundness of the law, its appeal to the Hungarian minorities abroad, and their firm resolve to preserve its essentials.

21.       Regarding the draft report by the Rapporteur for the Committee on Legal Affairs and Human Rights, the Hungarian side has expressed many criticisms, the substance of which can be summed up as follows:

22.       However, it would seem that the final version of Mr Jurgens’ report amounts to a compromise acceptable to all the interested parties. The Committee on Legal Affairs and Human Rights decided that Mr Jurgens’ report should deal only with the Hungarian Law and not to be extended to cover wider aspects.

b.       Romania

23.       The Romanian side stressed the excellent bilateral relations between Romania and Hungary, notably regarding the protection of minorities. These relations are based on sound legal foundations and effective machinery - the joint intergovernmental commission which meets regularly to discuss all the practical aspects of bilateral relations. It is all the more regrettable that Hungary did not consider it advisable to make use of this body to consult its Romanian partners before adopting the controversial law.

24.       Romania accepts the Hungarian authorities’ wish to assist their kin-minorities, but points out that this assistance must be provided in a spirit of respect for the jurisdiction of the home-state, bilateral agreements, European rules (including the Framework Convention for the Protection of National Minorities) and the principles laid down by the Venice Commission. All unilateral or extraterritorial action must be ruled out.

25.       Although the memorandum of understanding alleviated a few concerns, Romania still takes the view that only a revision of the law with a view to repealing a number of unacceptable provisions (particularly extraterritoriality, discriminatory privileges, provisions likely to fuel nationalism and social and economic measures) will settle the dispute. This revision must take place after genuine consultations between the interested parties, rather than on a unilateral basis.

26.       The Romanian side considers that the draft resolution adopted by the Committee on Legal Affairs and Human Rights is an acceptable compromise for all the parties concerned and that it should not be amended further in case this disrupts the balance achieved. It is aware that amending the law remains a delicate issue for the Hungarian authorities, but it is convinced that the issues addressed in Mr Jurgens’ report are of European significance and insists that the report be discussed at the Assembly session in June 2003.

c.       Slovakia

27.       I wish to thank the Slovakian delegation for inviting me to visit Bratislava while preparing this opinion and I regret that I was unable to comply with this invitation on account of my timetable. I therefore refer to a memorandum provided by the Slovakian Permanent Delegation to the Council of Europe to present the Slovakian viewpoint on the law in question.

28.       Slovakia considers that all the provisions of the law which are of an extraterritorial nature are unacceptable and contrary to international law, and insists that they be repealed. By and large, the implementation of the law must be confined to Hungarian territory, except as regards the privileges granted on the territory of foreign states with their prior agreement. Such privileges must meet the criteria of international law, ie concern only the cultural and linguistic fields and apply on a non-discriminatory basis. Social and economic advantages must be ruled out.

29.       The Slovakian side has some objections to the tasks assigned by the law, for the purposes of its implementation, to Hungarian organisations representing minorities. It is also of the opinion that the form and content of the “Hungarian certificate” may cause confusion and should be altered so that the certificate does not resemble an identity document.

30.       In Slovakia’s view, a number of expressions used in the law such as “the Hungarian nation as a whole” and “the Hungarian national community” may give rise to misinterpretation and should be amended. The Slovaks also point out that the term “nationality” used in the law to mean national identity is equivalent, in international law to the term “citizenship”.

31.       Slovakia has specific objections to the extension of the law’s privileges to non-Hungarian family members, to the measures to promote rural tourism and assist disadvantaged areas, to the travel facilities and to a number of other provisions.

32.       The Slovakian Delegation likewise regards the draft resolution adopted by the Committee on Legal Affairs and Human Rights as an acceptable compromise and insists that the report be presented at the Assembly’s plenary session in June 2003.

Position of the Rapporteur

33.       The Hungarian case is specific but not an isolated one in Europe. Many European countries, including the neighbouring states which are the most critical of Hungary, confer privileged treatment on “their” kin-minorities abroad. The Assembly should make a political reading of the Venice Commission’s report and draw up a statement of guiding principles to which states would have to adhere.

34.       The prime responsibility for the protection of minorities rests with the home-states. Kin-states can contribute to it by fulfilling certain conditions, the first of which is that the home-state does not object to their contribution. This assistance should preserve the balance between protection of the minority’s identity and the sovereignty of the home-state, and should in no circumstances be intended to weaken the minority’s links with its state, much less fuel separatist sentiments.

35.       In several Council of Europe countries, the issue of national minorities assumes an extremely delicate quality, and readily lends itself to political exploitation or even to abuse for nationalistic and populist ends. It thus demands exemplary prudence on the part of political leaders.

36.       It is regrettable that the enactment of the Law of 19 June 2001 was effected, forgoing prior consultation with the governments of the countries whose citizens are concerned by the law, and has thus created problems in relations between Council of Europe member states.

37.       The solution should be sought through the channel of dialogue and conciliation between the authorities of the states concerned, following which the Hungarian Government and Parliament should amend the law in line with the report of Venice Commission, and in a manner acknowledging the criticisms of their European partners and the international organisations.

38.       It will be noted that to date there is no common European definition of the concept of “nation”, which might often create misunderstandings.

APPENDIX I

HUNGARIAN NATIONAL ASSEMBLY

Office for Foreign Relations

       OK 12-39/2002

P R O G R A M M E

For the visit of Mr. Latchezar Toshev, rapporteur of the Political Affairs Committee of the Council of Europe PA
to Hungary

25-26. November 2002.

Monday, 25 November 2002:

09.00-10.00       Meeting with Mr. Antal Heizer, President of the Office for National and Ethnic Minorities

10.15-11.15       Meeting with Mr. József Bálint-Pataki, president of the Office for
Hungarians Living Abroad

12.00        Meeting with presidents of Self-governments of Minorities
living in Hungary, invited: self-governments of Bulgarian, German, Romanian, Croatian, Slovak and Roma minorities

14.00        Mr. Zsolt Németh, Chairman of the Committee for Foreign Affairs
receives the delegation

17.30        Meeting with Dr. Vilmos Szabó, Secretary of State,
responsable for the Office for Hungarians Living Abroad

Tuesday, 26 November 2002:

10.30       Meeting with Mr. Ferenc Gémesi, Director General of Department,
secretary of the Interministerial Coordination Committee on the Law on Ethnic Hungarians living in Neighbouring Countries

11.30       Mr. András Bársony, Political State Secretary of the Ministry for
Foreign Affairs receives the Rapporteur

13.00        Meeting with Dr. Csaba Tabajdi and the Hungarian
delegation to PACE

16.00        Meeting with Dr. László Szászfalvi, Chairman of the Committee on Human Rights, Minority and Religious Affairs

APPENDIX II

PROGRAMME

of the visit of Mr. Latchezar TOSHEV, rapporteur of the Political Affairs Committee of the PACE

(Bucharest, 20 – 21 March 2003)

Thursday, March 20, 2003

20h00       - official dinner hosted by Mr. Ghiorghi PRISACARU, chairman of the Romanian parliamentary delegation to the PACE – “3 Cocosi” Restaurant

Friday, March 21, 2003

10h00       - meeting with representatives of the Romanian parliamentary delegation to the PACE – at the Senate

11h30       - meeting with Mr. Mihnea MOTOC, Secretary of State, and other officials of the Ministry – Ministry of Foreign Affairs

13h00       - working lunch with Mr. Bogdan AURESCU, Director General for Legal Affairs, Mr Nicolae VULPASIN, Director, Department of Central and South-East Europe, and Mrs Irina DONCIU, Legal expert, Ministry of Foreign Affairs

Reporting Committee: Committee on Legal Affairs and Human Rights

Committee for opinion: Political Affairs Committee

Reference to committee: Doc. 9153, Ref. 2634, 25.09.01

Opinion approved by the Committee on 29 April 2003

Secretaries of the Committee: Mr Perin, Mr Chevtchenko, Mr Dossow, Ms Entzminger, Ms Alléon


1 See Doc.9744 rev. tabled by the Committee on Legal Affairs and Human Rights