31 January 1995

Doc. 7228

       Part I

REPORT

on the protection of the rights of national minorities

(Rapporteur: Mr BINDIG,

Germany, Socialist Group)


Summary

      In its Recommendation 1201 (1993), the Parliamentary Assembly proposed a text of an additional protocol on minorities' rights to the European Convention on Human Rights. However, at the Vienna Summit on 9 October 1993, the Heads of State and Government of the member States of the Council of Europe decided to instruct the Committee of Ministers to draft a framework convention, open also for signature by non-member States, in order to assure the protection of national minorities. At the same time, they proposed to draft "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". In the Recommendation 1231 (1994) the Assembly "deeply regretted" that the Summit did not follow its proposal.

      The Framework Convention, open for signature on 1 February 1995, is weakly worded. It 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. Its implementation machinery is feeble and there is a danger that, in fact, the monitoring procedures may be left entirely to the governments. Despite its reservations, the Assembly hopes that the Framework Convention will be signed and ratified soon by an overwhelming majority of states.

      At the same time, the Assembly considers it extremely important that the work on an additional protocol to the European Convention on Human Rights in the cultural field be rapidly proceeded with, so that it set out clearly defined rights which individuals may invoke before independent judiciary organs.

      The European Charter for Regional or Minority Languages is another subject of concern to the Assembly. Since its opening for signature in 1992, it has only been ratified by Finland and Norway and needs three more ratifications in order to enter into force.

I. Draft Recommendation

1.       The protection of minorities' rights has become one of the most important assignments of the Council of Europe today. The Assembly showed its keen interest in this matter by adopting Recommendations 1134 (1990), 1177 (1992) and 1201 (1993). It proposed, in the latter text, that the Committee of Ministers adopt an additional protocol to the European Convention on Human Rights on minorities' rights, drawing on the text of the proposal for such an additional protocol which formed an integral part of the recommendation.

2.       The Assembly now confirms the principles listed in its Recommendation 1201 (1993) and the additional proposal it then proposed, in particular the definition of a "national minority" which should refer to "a group of persons in a state who:

a. reside on the territory of that state and are citizens thereof;

b. maintain longstanding, firm and lasting ties with that state;

c. display distinctive ethnic, cultural, religious or linguistic characteristics;

d. are sufficiently representative, although smaller in number than the rest of the population of that state or of a region of that state;

e. are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their traditions, their religion or their language."

3.       However, governments did not follow this recommendation. At the Vienna Summit on 9 October 1993, the Heads of State and Government of the member States of the Council of Europe decided to instruct 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. This instrument would also be open for signature by non-member States;

      -       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."

4.       The Assembly, in its Recommendation 1231 (1994), "deeply regretted" that the Summit did not follow the Assembly's recommendation on an additional protocol on the rights of national minorities to the Human Rights Convention.

5.       In the meantime the Committee of Ministers elaborated the Framework Convention for the Protection of National Minorities which was adopted, in its final form, at the Ministerial meeting on 10 November 1994. It will be [was] opened for signature on 1 February 1995 [today] [and was signed on behalf of ... member States].

6.       Despite its reservations as to the substantive content and legal nature of the Framework Convention, the Assembly hopes that it will be signed and ratified soon by an overwhelming majority of member States and also that a considerable number of European non-member States will become Contracting Parties. In this respect, it recalls that the Convention needs ratification by 12 member States before it can enter into force.

7.       The Convention is weakly worded. It 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. Its implementation machinery is feeble and there is a danger that, in fact, the monitoring procedures may be left entirely to the governments.

8.       It is furthermore essential that the Framework Convention 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. These organs may be, in the last instance, the European Commission and Court of Human Rights. For that reason the Assembly considers it extremely important that the work on a protocol "in the cultural field by provisions guaranteeing individual rights, in particular for persons belonging to national minorities"' be rapidly proceeded with.

9.       The rights to be included in such a new protocol may be taken from both the Framework Convention and the draft for an additional protocol proposed by the Assembly in its Recommendation 1201 (1993). An indicative list of these rights is reproduced below and forms an integral part of this recommendation.

10.       There is a third Council of Europe instrument which is the subject of concern to the Assembly. This is the European Charter for Regional or Minority Languages. This Convention was concluded and opened for signature in 1992. Until now it has only been ratified by Finland and Norway. The Charter needs three more ratifications in order to enter into force.

11.       The Assembly is not only concerned about the small number of ratifications of the Charter until now but also about the way in which the Charter is to be applied. In fact, Contracting States have a large choice of rights among which to choose and they should indicate to which minority or minorities these rights apply.

12.       For these reasons the Assembly recommends that the Committee of Ministers:

      i.       invite member States to sign and ratify the Framework Convention for the Protection of National Minorities as soon as possible;

      ii.       make sure that the advisory committee to be set up once the Framework Convention enters into force is as independent, effective and transparent as possible, for instance by

      -       providing for a committee on which one representative is sitting on behalf of each of the Contracting States;

      -       providing for its election on the same lines as the European Commission on Human Rights or the European Committee for the Prevention of Torture;

      -       allowing the committee to draw its information from a wide scale of sources and to act on its own initiative;

-       allowing the committee also to enter into a dialogue with the government of the Contracting State concerned and to publish its reports and recommendations with the authorisation of that government;

      iii. invite those member States which have not yet signed (20 out of 33) and those member States which have not yet ratified (all except Finland and Norway) the European Charter for Regional or Minority Languages, to do so as soon as possible;

      iv.       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";

      v.       submit this draft protocol, once concluded, to the Assembly for its opinion.

******

Provisions of Recommendation 1201 (1993) on national minorities

that may be included in an additional protocol on cultural rights

1.       Right to express, preserve and develop one's cultural identity

Article 3

       (1) Every person belonging to a national minority shall have the right to express, preserve and develop in complete freedom his/her religious, ethnic, linguistic and/or cultural identity without being subjected to any attempt to assimilation against his/her will.

2.       Exercise of the rights and freedoms by persons belonging to national minorities

Article 3

      (2) Every person belonging to a national minority may exercise his/her rights and enjoy them individually or in association with others.

3.       Equality before the law and non-discrimination

Article 4

      All persons belonging to a national minority shall be equal before the law. Any discrimination based on membership of a national minority shall be prohibited.

4.       Right to use the minority language

       Article 7

       (1) Every person belonging to a national minority shall have the right to use his/her mother tongue in private and in public, both orally and in writing. This right shall also apply to the use of his/her language in publications and in the audiovisual sector.

5.       Right to use first names and surnames in the minority language

Article 7

       (2) Every person belonging to a national minority shall have the right to use his/her surname and first names in his/her mother tongue and to official recognition of his/her surname and first names.

6.       Right to use the minority language in the relations with the administration

      Article 7

      (3) In the regions in which substantial numbers of a national minority are settled, the persons belonging to a national minority shall have the right to use their mother tongue in their contacts with the administrative authorities and in proceedings before the courts and legal authorities.

7.        Right to display local names, street names, etc. in the minority language

Article 7

      (4) In the regions in which substantial numbers of a national minority are settled, the persons belonging to that minority shall have the right to display in their language local names, signs, inscriptions and other similar information visible to the public. This does not deprive the authorities of their right to display the above-mentioned information in the official language or languages of the state.

8.       Right to learn and receive education in the minority language

Article 8

      (1) Every person belonging to a national minority shall have the right to learn his/her mother tongue and to receive an education in his/her mother tongue at an appropriate number of schools and of state educational and training establishments, located in accordance with the geographical distribution of the minority.

9.       Right to set up and manage schools, educational and training establishments

Article 8

      (2) The persons belonging to a national minority shall have the right to set up and manage their own schools and educational and training establishments within the framework of the legal system of the state.

10.       Right to an effective remedy

Article 9

      If a violation of the rights protected by this protocol is alleged, every person belonging to a national minority or any representative organisation shall have an effective remedy before the state authority.

11.       Right to free and unimpeded contacts with the citizens of another country

Article 10

       Every person belonging to a national minority, while duly respecting the territorial integrity of the state, shall have the right to have free and unimpeded contacts with the citizens of another country with whom this minority shares ethnic, religious or linguistic features or a cultural identity.

12.       Relation to national legislation and other international instruments

Article 12

      (1) Nothing in this protocol may be construed as limiting or restricting an individual right of persons belonging to a national minority or a collective right of a national minority embodied in the legislation of the contracting state or in an international agreement to which that state is a party.

      (2) Measures taken for the sole purpose of protecting ethnic groups, fostering their appropriate development and ensuring that they are granted equal rights and treatment with respect to the rest of the population in the administrative, political, economic, social and cultural fields and in other spheres shall not be considered as discrimination.

II. Draft Order

1.       The Assembly refers to its Recommendation ... (1995) and to its previous texts concerning the protection of national minorities. The protection of national minorities and their rights has now become one of the major assignments of the Council of Europe today.

2.       The Assembly therefore instructs its Committee on Legal Affairs and Human Rights:

      i.       to consider the action taken to follow up Recommendation ... (1995);

      ii.       to closely follow the ratification and implementation of the Framework Convention for the Protection of National Minorities (1994) and of the European Charter for Regional or Minority Languages (1992);

      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 make further studies into the way in which the European Charter for Regional or Minority Languages may be most effectively implemented;

      v.       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 474 (1992) and 484 (1993) instructs the Committee on Legal Affairs and Human Rights to continue its work on minorities, particularly concerning the creation of a mediation instrument, if necessary in close cooperation with the other competent committees.

III. Explanatory Memorandum

by Mr BINDIG

A.       Introduction

1.       No doubt the protection of national minorities and of their rights must be considered as one of the most important assignments of the Council of Europe today. Yet, the best of statements and the strongest and most carefully worded texts adopted by the Parliamentary Assembly, cannot replace effective and concrete action and binding legal instruments. For this, decisions of the Council of Europe's executive organ, ie the Committee of Ministers, are needed.

2.       In the field of minorities, the Committee of Ministers, in 1992, concluded and opened for signature the European Charter for Regional or Minority Languages. More recently, at the Ministerial Meeting on 10 November 1994, the Committee of Ministers adopted the Framework Convention for the Protection of National Minorities and decided that this Convention would be opened for signature on 1 February 1995 during the Assembly's part-session. This Convention was concluded in accordance with the instructions given by the Heads of State and Government at the Council of Europe Summit in Vienna on 9 October 1993. Following decisions taken at that Summit, the Committee of Ministers should also "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".

3.       Thus, optimists may well say that the glass is half full and that it is filling up, whereas pessimists may argue that the glass is half empty. Whatever the case may be, there is reason for the Assembly to be vigilant. Each of the three legal instruments mentioned above, ie the two existing conventions and the draft protocol to be elaborated, may require close monitoring by the Assembly before they enter into force and become effective. This will be explained briefly below.

B.       The European Charter for Regional or Minority Languages

4.       One of the first concerns of the Assembly should of course be that more member States ratify this Convention. Until now only Norway and Finland have done so. There are however two other reasons for closely monitoring the Charter. The first reason is that, in accordance with its Article 3, the contracting States must specify to which regional or minority language the Charter applies. Therefore it may well be that a member State ratifies the Convention and therefore makes a good impression at first sight, but leaves out one or several of the most important minority languages on its territory.

5.       The second reason is that the Charter leaves a wide margin of choice to each of the contracting parties. In fact, in accordance with Article 2 paragraph 2 of the Charter, each party must 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, even if two member States are bound by the Convention, the articles which apply are completely different. Norway, which was the first member State to ratify the Charter, on 10 November 1993, applies a certain number of paragraphs and sub-paragraphs to the Sami language. Finland, the second member State to ratify a year later, applies the Convention to the Sami language, the Swedish language and to the Romany language but to each of these languages it applies different paragraphs and sub-paragraphs of the Charter.

6.       In the opinion of the Committee on Legal Affairs and Human Rights it would therefore be advisable to make a close study of these paragraphs and sub-paragraphs and to try 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. This work should be done with the help of a consultant expert and might result in a recommendation of the Assembly to the Committee of Ministers.

C.       The Framework Convention for the Protection of National Minorities

7.       In application of the decisions taken at the Vienna Summit, the Committee of Ministers elaborated the Framework Convention for the Protection of National Minorities and concluded it on 10 November 1994. We may congratulate the Committee of Ministers on the speed with which it proceeded in elaborating this legal instrument which was ready 13 months after the Vienna Conference. No doubt this is an important achievement in view of the difficulties which arose and the delicate issues at stake. Yet one should not close one's eyes to the weaknesses of the Convention. It is weakly worded and it formulates a number of vaguely defined obligations and principles, the observation of which will be an obligation of the Contracting States but not a right which individuals may invoke. Its implementation machinery is feeble and there is a danger that the monitoring procedures may be left entirely to the governments. Finally, the number of ratifications required for its entry into force is excessively high. Normally, Council of Europe conventions require three to five ratifications for their entry into force, but in the case of the Framework Convention this is not less than twelve. One of the first things the Assembly will therefore have to monitor is that the Convention is quickly signed and ratified by a maximum number of member States.

8.       Another matter which the Assembly should closely follow is the monitoring of the implementation of the Framework Convention by the contracting parties. In accordance with Article 25 a contracting party shall transmit to the Secretary General of the Council of Europe full information on the legislative and other measures taken to give effect to the principles set out in the Convention and thereafter it shall transmit any further information of relevance to the implementation of the Convention on a periodical basis and whenever the Committee of Ministers so requests. This information shall be transmitted to the Committee of Ministers.

9.       Article 26 provides:

"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.

2.       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 this framework Convention."

10.       Article 17 of the Statute of the Council of Europe provides that "the Committee of Ministers may set up advisory and technical committees or commissions for such specific purposes as it may seem desirable". Strictly speaking, Article 26 of the Framework Convention may therefore be considered superfluous. On the other hand it imposes on the Committee of Ministers the obligation to set up an advisory committee. There is no such obligation under Article 17 of the Statute.

11.       The Committee on Legal Affairs and Human Rights feels that the composition and the procedures of the advisory committee are of the utmost importance for the effective implementation of the Convention. 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 either the European Commission of Human Rights or the European Committee for the Prevention of Torture. This is a matter which the Assembly may also wish to follow closely.

12.       Furthermore, it is essential that the Framework Convention be complemented by an additional protocol to the European Convention on Human Rights.

D.       The 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

13.       It may be recalled that the Assembly, in its Recommendation 1201 (1993) had proposed an additional protocol on the rights of national minorities to the European Convention on Human Rights and that it had added the text of a proposal for such an additional protocol as an appendix which formed an integral part of the recommendation.

14.       Unfortunately the Vienna Summit did not follow the Assembly's recommendation in this respect, but proceeded in a different way. Although the Assembly, in its Recommendation 1231 (1994) "deeply regretted" the Summit's decision, this does not mean that all is lost. In fact, if the Framework Convention were to be completed by an adequate protocol to the Human Rights Convention one may well be very satisfied. Yet this is by no means acquired and may need careful and vigorous monitoring by the Assembly. Strictly speaking, the Vienna Summit did not instruct the Committee of Ministers to "draft with minimum delay" the protocol as it had done for the Framework Convention, but it instructed it "to begin work on drafting a protocol" without saying anything about the final result and the timing of this activity. We regret that the draft protocol will not be a draft protocol on the rights of minorities but on cultural rights but this can be accepted in the light of a rough estimation that of those rights of importance to minorities a number are already covered by the Human Rights Convention and that 80% or so of the remaining rights to be covered in an additional protocol are of a cultural nature.

15.       As the provisions of the Framework Convention cannot be invoked by any individual neither before a national court nor before the European Commission or Court of Human Rights, it is desirable that at least some of the rights listed in the Framework Convention be included in the protocol. The wording must be adapted to the needs of the Human Rights Convention. The rights listed in the appendix to our draft recommendation are of an indicative nature. If the Committee of Ministers opts for the universal nature of these rights in accordance with the Summit's decisions it will not be possible to start any article with the words "the persons belonging to a national minority" but one will have to put "any person" and the article will have to be adapted accordingly. As was said in paragraph 12 of the Assembly's Recommendation 838 (1978), any right, in order to be incorporated in the Convention, must be fundamental and enjoy general recognition, be capable of sufficiently precise definition to lay legal obligations on a State, rather than simply constitute a general rule.

16.       Unfortunately the Framework Convention, once concluded, was not submitted by the Committee of Ministers to the Assembly for its opinion. Hence a double disappointment for members of the Assembly who were suddenly confronted with a text they had not seen before and on which they had not been consulted. It is felt, however, that any legal instrument of the importance of a protocol to the Human Rights Convention should be formally submitted to the Assembly for its formal opinion to the Committee of Ministers.

E.       Conclusions

17.       One of the reasons for which the Committee on Legal Affairs and Human Rights decided to ask for urgent procedure during the January-February 1995 part-session of the Assembly is the adoption and publication of the Framework Convention for the protection of national minorities in November 1994, its opening for signature on 1 February 1995 and the work on the elaboration of a draft protocol to the Human Rights Convention which has now started. There is also the fact that, more than two years after its opening for signature and ratification, the European Charter for Regional or Minority Languages has only been ratified by Finland and Norway.

18.       The protection of minorities and of their rights is an extremely important matter and daily events in many of our member States remind us of the unsatisfactory relationships between majorities and minorities and their consequences which quite often result in terrorism, bloodshed and war. One only needs to open a daily newspaper to be reminded of this. The protection of minorities is therefore one of the most important assignments of the Council of Europe today. One should perhaps drop the cautious and diplomatic language which is so customary in the Council of Europe and clearly express the aims to be achieved. Our Organisation will lose much of its credibility if it shows itself to be incapable of arriving at appropriate legal instruments in this field and many of our new member States and of those who are shortly to become so will be very disappointed in the Organisation.

19.       The Committee on Legal Affairs and Human Rights and, indeed, the Assembly itself, will have to continue their work on minorities. In addition to the monitoring of the three legal instruments mentioned above, it should also look at the role the Council of Europe might be able to play as a mediator in minority-majority conflicts. It should do so in close cooperation with the OSCE and its High Commissioner.

Reporting committee: Committee on Legal Affairs and Human Rights

Budgetary implications for the Assembly: none

Reference to committee: Assembly decision on 30 January 1995

Draft recommendation adopted by the committee on 31 January 1995 with 32 votes in favour, 0 against and 5 abstentions

Draft order adopted by the committee on 31 January 1995 with 33 votes in favour, 0 against and 4 abstentions

Members of the Committee: Mrs Err (Chairwoman), MM Schwimmer, Jansson, (Vice-Chairmen), Amaral, Arnalds (alternate: Bjarnason), Bartumeu Cassan, Bentkowski, Berti, Bindig, Borg, Bučar, Candal, Columberg, Croze, Fogaš, Frunda, Fry, Fuhrmann, Galanos (alternate: Christodoulides), Mrs Gelderblom-Lankhout, MM Guenov, Hagĺrd, Mrs Holand, MM Hunault, Inönü, Mrs Jaani, MM Jaskiernia, Kairys, Karas, Kastanidis (alternate: Liapis), Kempinaire, Kirka, Kirkhill (alternate: Baroness Hooper), MM Koschyk, Loutfi, van der Maelen, Maginas, McDowell, Mészáros, Moeller, Németh (alternate: Jeszenszky), Poppe, Rathbone, Rhinow, Robles Fraga (alternate: Lopez Henares), Rodeghiero, Salvi, Mrs Scopelitti, MM Severin, Sole Tura, Mrs Soutendijk-van Appeldoorn (alternate: Mr Woltjer), Mrs Theorin, MM Trojan, Vinçon, 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, Ms Bakardjieva and Ms Kleinsorge.