1 February 1993
on an additional protocol on the rights of minorities
to the European Convention on Human Rights1
(Rapporteur: Mr de PUIG,
1. The Rapporteur very much welcomes the proposal for an additional protocol to the European Convention on Human Rights (hereinafter "the Convention"), concerning minority rights, made by Mr Worms on behalf of the Committee on Legal Affairs and Human Rights (Doc. 6742). It represents the fruition of our Assembly's efforts. It should be remembered that we tried twice in recent times to have the Committee of Ministers prepare such a text. Regrettably, neither Recommendation 1134 (1990) nor Recommendation 1177 (1992), both on the rights of minorities, received a satisfactory reply. It was only natural, therefore, that the Assembly should have responded to the Committee of Ministers' inertia by instructing the competent committees in Order No. 474 (1992) to prepare a draft protocol should the Committee of Ministers not act before 1 October 1992.
2. In view of the procedure followed by the Committee on Legal Affairs and Human Rights, which did not reach a decision on the draft recommendation and draft additional protocol prepared by Mr Worms until 11 January 1993, I submitted to our committee on 15 December 1992 a working paper containing some elements for an opinion on the protection of the rights of national minorities, pending reception of the final texts. These elements for an opinion, which were passed on to the Committee on Legal Affairs and Human Rights, proved to be of some use since some of my proposals were incorporated into the draft protocol adopted by that committee.
3. Our committee having already approved certain basic principles, I shall attempt to reflect the comments made and the concerns expressed by my colleagues in this opinion, while introducing some further considerations and proposing a number of amendments which, in my view, improve and add to the text of the draft adopted by the Committee on Legal Affairs and Human Rights.
II. WHAT MINORITIES, WHAT RIGHTS?
4. There are minorities of all kinds. That is a well-known fact. In Europe, the diversity of minorities is great in all fields: diversity as to the characteristics of the population, geographical range, its cohesion as a specific group (linguistic, cultural, ethnic, religious etc.), its political awareness and the extent of its demands, but also diversity as to the political and legal situations of minorities, which differ widely even in the Council of Europe's founder countries, and diversity as regards their relations with the majority.
5. One should therefore remember, when drafting such an important international instrument as this protocol to the European Convention on Human Rights, that it has to be applied to a wide variety of situations and, above all, against a background of historical inertia and fairly different and, in some cases, sharply contrasting legal traditions. In democratic Europe, there are minorities which are recognised and protected at the highest constitutional level. But there are still some countries where the very existence of minorities is denied.
6. The draft protocol is concerned with "national minorities", which, in my view, defines the scope of the future instrument. That does not mean that all minorities which are liable to have their rights protected are "national minorities" or that those which are not will be consigned to oblivion. On the contrary, it should be remembered that there are minority groups which, even if they do not form a compact and coherent community, nevertheless have rights which must be defended and guaranteed. It is quite clear that the rights which the draft protocol grants to national minorities may be extended to these genuine but not "national" minorities. There is nothing to prevent this.
7. It is perhaps important to clarify these aspects. Confusion with regard to definitions should be avoided. I am therefore attempting to make them more precise by proposing amendments to Section I of the draft protocol ("Definition"). It should first of all be borne in mind that there are minorities which are not national minorities and that the kinds of problems encountered by these minorities are often very different. Situations which have nothing in common should not be lumped together. I shall give an example of this: the Hungarians in Romania are a national minority and their problems are comparable to those of the Turks in Bulgaria. Yet neither of these groups has any similarity with the Hindu minority in the United Kingdom or the Islamic minority in France. The nature of their problems and demands has nothing to do with that of the problems facing Romanians of Hungarian origin or Bulgarians of Turkish origin.
8. Muslims and gypsies are quite clearly minorities in many countries of Europe. But they are not national minorities. The members of Islamic minorities may be of Arab, Turkish or North African origin and, therefore, have different cultural identities, even if they do share the same religion. In any event, their shared religious faith does not make them a "national" group. It might be added that they often feel that their roots are in a mosaic of nations where their ancestors lived. The same applies to the gypsies. There are gypsy minorities in many of our countries, but one cannot speak of a gypsy national identity. They explicitly reject that. They of course see themselves as gypsies, but at the same time they feel Bulgarian, Romanian, Hungarian or Spanish.
9. It should also be pointed out that certain groups of recent and varied origin which are found scattered in our societies are not regarded as minorities. I am thinking of refugees, immigrants, foreign residents or stateless persons. The definition of a minority -and still less that of a national minority - cannot include such groups. This should be made perfectly clear in the text of the protocol.
10. Although a single definition can cover the concept of minority in the broad sense (minorities and national minorities), I think that it is worthwhile emphasising a distinction in the case of the latter. There are those which have historical origins: they were separated from their fellow citizens by the creation of new states, but they maintain their identity and characteristics while forming part of a state which is not their country of origin. This applies, for example, to Hungarians and Turks living outside Hungary and Turkey. The other type of national minority is that which, in theoretical studies and in history, has been called "nationality". Groups with a clearly differentiated and marked identity (cultural, linguistic or ethnic) have been living for centuries in a part of the state's territory where they form genuine communities. The examples are well-known: the Catalans, the Basques, the Corsicans, the Scots etc.
11. If one could choose between the legal formula of individual rights and that of collective rights to protect minorities, there is no doubt that, personally, I would choose the latter because, over and above the rights vested in each individual, where minorities are concerned, some of these rights are, by definition, collective rights. Yet we cannot overlook the fact that the Convention refers solely to individual rights. The only solution, therefore, is to grant rights to everyone belonging to a national minority. As regards certain principles involving the community as a whole, however, they will have to be formulated in the knowledge that this will represent a new legal dimension of the Convention. At any rate one cannot stop half way merely for the sake of legal aesthetics.
III. NATIONAL MINORITIES - POLITICAL APPROACH
12. The existence of national minorities is a reality of history, a self-evident feature of our age. Human groups are to be found here and there, in Europe and elsewhere, with a particular identity which distinguishes them as differentiated communities. Depending on their characteristics, they are called state-less nations,nationalities, differential factors, communities, countries, collectivities, ethnic groups or simply minorities. In fact, they are more or less structured social formations, and realising that they belong to a specific group they demand that their identity should be respected and that they should have the right to live without giving up that identity.
13. Contemporary history has been bedevilled by the claims of national minorities and their relations with their states. The problem is not new. Since the creation of the modern state, considerable difficulties have complicated the political and legal solution of the contradiction between a conception of the national state as a homogeneous social and cultural reality and the existence within that state of different races, cultural and racial groups - at times fairly remote from the identity of the majority. Relations have frequently been marked by conflict, almost invariably at the expense of the minority.
14. Throughout the decades, in some of our countries, solutions have been found by means of the official recognition of these national minorities and by granting them what would be termed fundamental rights. When a minority is perfectly identifiable over a territory, the problem has perhaps been easier. The example of regions, "Länder", nationalities, autonomies, enjoying a system of self-government which at times is very considerable, is to be seen in a large number of our states. Minorities which have no territory, despite an obvious presence, have found it more difficult to obtain a status as such.
15. True, the pressure exercised by minorities demanding their recognition has often led to political combats. Some governments, when faced with such pressure, have interpreted the feelings of the majority of their citizens and have been thoroughly reticent, not to say distrustful, towards the demands of the minority. The fear of territorial disintegration, of social anarchy or the disappearance of the state, and also hypothetical dangers for the rights of the majority, have repeatedly led to Jacobinism and in some very specific cases to xenophobia and racism.
16. Account must also be taken of the fact that, in very well-known instances, the minority has conducted its combat while brandishing the banner of secession or disputing political power. Nor can it be forgotten that in some cases - which have unfortunately set a pattern -it has selected the path of terrorism as a means of securing political power or separation, referring to such terrorism as "armed combat".
17. I feel that history shows clearly that when a state has treated a minority with a minimum of understanding and solidarity, trying to find pragmatic solutions, it has succeeded in reducing confrontations between the majority and the minority. When, on the other hand, all rights have been refused and recognition has been withheld the minority has been merely exasperated. From this point of view, solutions with a federal basis, cultural autonomies or standards of respect for communities with a language, religious or ethnic identity existing in some of our states are positive examples which should be borne in mind.
18. The Europe of our time has witnessed the appearance of the phenomenon of nationalism and conflicts of minorities. On the one hand in Western Europe, both immigrant groups which have settled in our cosmopolitan societies and traditional communities have failed to secure recognition despite years and years of demands. On the other hand, in many countries of the new Central and Eastern Europe, there are inter-ethnic conflicts, former states are in the process of being wound up and the problems of national minorities in many of those countries are multiplying, all developments which demand political and legal solutions. Otherwise, as everyone realises, the problem could produce permanent instability.
19. The problem needs to be situated realistically and pragmatically, and chauvinistic or centralising attitudes must be given up, in favour of respect for diversity, tolerance and pluralism. There is no point in denying what exists - and it would be a mistake to do so -or especially in thinking that the phenomenon of minorities will become less acute in the future as a result of the universalisation of economies, societies, cultures and mentalities. Rather, experience shows that universalisation does not bring about greater homogeneousness; cosmopolitanism often involves a return to roots. Extending individual and social relationships, information and knowledge to a world-wide level, and the expansion of geographical, cultural, idiomatic and ideological references frequently result in a strengthening of links with origins, the basic identity. A lucid and political vision of the future, then, must take into account this reality.
20. Although the Declaration of Human Rights of the United Nations and the European Convention on Human Rights contain articles referring to rights which can apply to minorities, the fact is that there is no precise international norm on national minorities. I am convinced that a legal framework would be extremely helpful here and is actually urgently needed. The Council of Europe should therefore provide the European states with a valid and efficient standard-setting instrument which will help steer and facilitate the adoption of solutions that are acceptable to both minorities and majorities.
21. It is very much in the interests of our states and the Council of Europe to rely on a standard-setting framework, based on the principles of democracy and human rights -for legal reasons, but also for entirely political reasons.
22. The basic premise must be that the recognition of minorities and the ability of their members to behave in a manner that is consistent with their identity is a right. It is the right to be different, the right to exercise the freedom to be oneself. It is the right to non-discrimination, the right to equality before the law. These rights must be recognised, and they must be protected.
23. But finding the ways to achieve political and legal solutions for national minorities also depends to a considerable extent on the ability to live together, on tolerance and on the solidarity of our societies - values which over and above the mere enforcement of the law are the pillars of the democratic and humanistic culture which we defend. If these values are not in force and if no standards are laid down that guarantee the rights of minorities, what is under threat for the future is peace.
24. This is why I support the idea of granting national minorities appropriate rights, and the suggestion that a new specific protocol should be added to the European Convention on Human Rights. Closing our eyes to realities and applying a state form of jacobinism could spell a future worsening of the problems. If instead of opening ourselves up to solutions that have been successful elsewhere we take refuge in traditional state nationalism, we condemn ourselves to an exacerbation of the nationalism of minorities and to the classic response to this kind of conflict, xenophobia and the confrontations with which we are all too familiar. States which fail to recognise and guarantee the right to be different will pay a high price for that failure sooner or later.
25. It goes without saying that the concept behind the draft protocol drawn up by Mr Worms is opposed to that which sees in the attribution of rights to national minorities a potential factor for disintegration threatening the established order. Rather, the concept of Mr Worms implies the conviction that respect for the rights of national minorities is the only way of resolving conflicts between majorities and minorities without infringing the principles of sovereignty or territoriality. In fact we establish the rights of the majority vis-ā-vis the minority, but also those of the minority vis-ā-vis the majority. It is the path of the social contract which demands the loyalty of all.
IV. COMMENTS ON THE DRAFT RECOMMENDATION AND PROTOCOL
26. I must first express my agreement with the texts of the draft recommendation and draft order. They both show the Assembly's interest in minorities, identify future activities and indicate very clearly to the Committee of Ministers the Assembly's wish to see a protocol adopted as quickly as possible. Consequently, I am not going to propose amendments to these two texts.
27. Where the draft additional protocol is concerned, I should first like to stress that the outline of the text has been considerably improved as the work of the Committee on Legal Affairs and Human Rights has proceeded. In my view, further improvements are possible, although it must be acknowledged that the text submitted to the Assembly incorporates some positive elements and eliminates some controversial points. The draft needs to be added to and enriched. I hope, therefore, that some of the amendments which I am proposing in the Appendix to this opinion will be accepted, as were many of the proposals which I put forward in my previous document, mentioned in paragraph 2.
28. I can accept the definition of national minorities contained in the draft protocol. But it will be necessary to add further details to this text to guarantee an unequivocal interpretation and prevent the confusion which I mentioned above. For example, no reference should be made to a particular percentage of the population as this would inevitably lead to endless conflict about statistics and create injustices (for instance, a minority totalling 9,9% might not qualify, whereas one reaching 10,1% might). The Convention organs will be called upon to decide in each case whether the criterion of "sufficiently representative" is met.
29. As most of the amendments suggested in the first draft of this opinion have been accepted by the Committee on Legal Affairs and Human Rights, I am not going to reiterate my earlier comments. There are still a few aspects which, having not yet been taken into consideration, make it necessary to maintain the amendments in question. Certain concerns voiced during our discussions in the committee should be the subject of proposed amendments in order to ensure that the content of the draft protocol is both sound and comprehensive. The exact wording will therefore be found in the amendments appended hereto, together with the main reasons for them.
30. The current text of the draft protocol undoubtedly establishes a legal framework for the protection of minorities' rights. It attempts to strike a careful balance between individual and collective rights, and the rights appearing include the right to a separate identity, the right not to be discriminated against and even the right of minorities to set up their own organisations. It is therefore an unquestionable step forward, bearing in mind the lack of norms on minorities. But there are aspects in the definition and in the guarantees which minorities should enjoy, and also terminological and conceptual questions, which need to be clarified and improved. That is the purpose of the amendments.
31. There can be no doubt that especially states with a centralist form of government are very critical of the notion of collective rights. This attitude explains for instance why bodies such as the Conference on Security and Co-operation in Europe (CSCE) have so far been unable to adopt a binding instrument on the issue. It also explains to some extent the problems in our Committee of Ministers.
32. Whatever our personal views on this subject, experience and realism require us to seek a consensus. It would be irresponsible to try and give the protocol an unrealistic content which would have no chance of enjoying majority support. It should be noted that some states are not in a position to accept any protocol.
33. However that may be, present political reality calls for a sound and effective document offering solutions to highly complex and very delicate situations. These problems cannot be addressed with norms of a vague, idealistic nature. It is essential to assess the misgivings of certain states and adopt a strong, compact draft text. It would be shameful for the Council of Europe to miss this historic opportunity. To prevent that from happening, it is imperative to draw up a protocol that comes up to expectations and satisfies the requirements. I hope, therefore, that the Political Affairs Committee and the plenary Assembly will support my amendments and the draft additional protocol as a whole.
34. As the drafting of the European Convention on Human Rights itself demonstrated, governments' hesitations can be overcome if the Assembly proposes precise legal wording itself. The Rapporteur sincerely hopes that a draft protocol can be adopted by the Assembly with a large majority, leaving the Committee of Ministers with no excuse to delay matters longer. It would be obliged to follow up by acts its declarations on the importance of the minority issue for democracy and peace in Europe.
Amendments to the proposed additional protocol
to the Convention for the Protection of Human Rights
and Fundamental Freedoms, concerning national minorities and their members
Amendment No. 1:
In the title of the proposed additional protocol, replace the words "their members" by "persons belonging to them".
This amendment merely brings the title into line with the content of the draft protocol. It thus makes it possible to avoid using the word "member", which implies enrolment or registration.
Amendment No. 2:
In Article 1, paragraph (e): add after the word "preserve ..." the words "their identity".
Persons belonging to the minority must genuinely wish to preserve their separate identity. Otherwise there would be no point in granting them rights as a minority.
Amendment No. 3:
In Article 1, add a new paragraph reading as follows:
"Have a minimum degree of coherence as a community and a shared sense of belonging to the group".
The concept of minority should imply the existence of a group and of persons identifying with it. A certain number of citizens with common origins do not necessarily form a national minority.
Amendment No. 4:
At the end of Article 1, add a new paragraph reading as follows:
"The definition of national minorities comprises minorities traditionally established in a specific territory as well as groups with no specific territory and nomads. But it may on no account apply to refugees, immigrants, permanent foreign residents and stateless persons".
There are minorities which cannot be identified with a particular territory such as gypsies and others. It should be made quite clear that this does not apply to such groups as immigrants and others, who are the subject of specific legislation and have a specific status.
Amendment No. 5:
In Article 3, second paragraph, replace the words "in association with others" by "collectively".
"In association with others" implies some form of enrolment or further grouping.
Amendment No. 6:
In Article 3, add a new paragraph reading as follows:
"Every national minority and the persons belonging to it shall have the right to preserve, enrich, strengthen, hand down and perpetuate their identity".
It is essential to include this basic formulation of a minority's collective rights. It is the only place in the text where this reference appears.
Amendment No. 7:
In Article 5, add a second paragraph reading as follows:
"Deliberate changes in administrative or political divisions, which might represent an attempt to undermine the cohesion of the group or the identity of a national minority, shall also be prohibited".
It is essential to prevent a minority's cohesion from being weakened by changes in administrative or political divisions.
Amendment No. 8:
At the beginning of Article 7, add a new paragraph reading as follows:
"Every national minority shall be entitled to recognition and protection of its mother tongue, as a component of its identity and cultural heritage, in order to preserve it".
This paragraph lays down a fundamental right and summarises the main lines of the European Charter for Regional or Minority Languages recently adopted by the Committee of Ministers.
Amendment No. 9:
In Article 7, paragraphs 3 and 4, delete the word "substantial".
This word implies a quantitative and arbitrary notion. Who can say that "substantial" numbers of a minority are settled, and how? It is both superfluous and pejorative.
Reporting committee: Committee on Legal Affairs and Human Rights
Committee for opinion: Political Affairs Committee
Reference to committee: Order No. 474 (1992)
Draft opinion approved on 1 February 1993
Secretaries to the committee: MM. Sorinas and Kleijssen
1 1See Doc. 6742