Protection of the rights of minorities
Doc. 7572
5 June 1996
REPORT[1]
Rapporteur: Mr BINDIG, Germany, Socialist Group
Summary
Much of the effectiveness of the protection offered by the new Council of Europe Framework Convention for the protection of national minorities will depend on its implementation machinery and in particular on the advisory committee to be set up under its provisions. The report hopes that this advisory committee may be as independent, effective and transparent as possible and makes a number of proposals to this effect to the Committee of Ministers.
In the meantime, the Assembly continues to subscribe fully to its previous recommendations, in particular its Recommendation 1201 (1993) in which it proposes an additional protocol to the European Convention on Human Rights for the protection of the rights of persons belonging to national minorities. The opinion of the European Commission for Democracy through Law ("Venice Commission") on the interpretation of Article 11 of the protocol proposed in Recommendation 1201 (1993) is to be considered as a most important reference document for the interpretation of the draft protocol.
Another opinion of the Venice Commission concerns the proposal to introduce a hard core of rights to be selected among the rights granted by the European Charter for Regional or Minority Languages. Further studies on this matter are to be suspended for the moment - pending more ratifications of the Charter and its imminent entry into force.
I. Draft recommendation Link to the Adopted text
1. The Assembly refers to its previous texts on the protection of national minorities and their rights and, in particular, to Recommendation 1285 (1996) and Order No. 513 (1996), both of which it adopted on 23 January 1996.
2. It continues to subscribe fully to its Recommendation 1201 (1993) and to the proposal for an additional protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning persons belonging to national minorities, which forms an integral part of that recommendation.
3. The present recommendation deals with some of the aspects of the rights of minorities mentioned in Order No. 513 (1996). Other aspects may be the subject of a further Assembly recommendation or resolution.
4. The Assembly takes note of the information transmitted to it in the interim reply to its Recommendation 1285 (1996) in which the Committee of Ministers draws attention to the fact that it has decided "to continue reflection on the feasibility of further standard-setting in the cultural field and in the field of protection of national minorities, taking into account the Declaration adopted at the Vienna Summit." However, the Assembly reiterates the view it expressed in Recommendation 1285 (1996) and hopes very strongly that the work on an additional protocol to the European Convention on Human Rights will soon be taken up again.
5. In the meantime the Assembly received the opinion of the European Commission for Democracy through Law ("Venice Commission") on the interpretation of Article 11 of the draft protocol to the European Convention on Human Rights appended to its Recommendation 1201 (1993). It considers this opinion a most important reference document for the interpretation of the draft protocol.
6. It also received the opinion of the Venice Commission on the European Charter for Regional or Minority Languages. This opinion deals with a suggestion, raised by Assembly members, to define a hard core of rights among the provisions of the Charter which should be accepted by all Contracting States. The idea behind this suggestion is that such a hard core would increase the harmonising effect of the Charter and enhance its chances of being ratified by more Council of Europe member states.
7. It may be recalled that the Charter was opened for signature and ratification in 1992 and needs a minimum of five ratifications to enter into force. To date it has been ratified by Finland, Hungary, the Netherlands and Norway.
8. In its opinion the Venice Commission expresses the view that a hard core is alien to the spirit and working system of the Charter which already has a "hard core" of principles (Part II) to guarantee the effectiveness of the protection that it affords. In any event, the provisions of Part III, given their wording and the detailed fashion in which they regulate the subject-matter, are hardly suitable for the creation of a hard core likely to be accepted by all Contracting States. Moreover a hard core of linguistic rights may be derived from the obligations provided for in the Council of Europe Framework Convention on the Protection of National Minorities, notably in Articles 5.1, 6, 9.1, 10-14 and 17.
9. Following the advice of the Venice Commission, the Assembly is now of the opinion that it is advisable to wait for further ratifications and for the entry into force of the Charter and that, for the time being, the idea of defining a "hard core" of rights among the provisions of the Charter should not be pursued.
10. The Council of Europe Framework Convention for the Protection of National Minorities was opened for signature and ratification by Council of Europe member states on 1 February 1995. It was 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.
11. The effectiveness of the protection that this Framework Convention offers will depend largely upon the implementation of the mechanism to ensure compliance with its provisions.
12. In fact, its Article 26 provides that:
"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. 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."
13. The Assembly has been informed that the Committee of Ministers, in January 1996, gave instructions to start work regarding the implementation mechanism of the Framework Convention at the end of June 1996.
14. With regard to the advisory committee, the Assembly therefore wishes to make a number of proposals to complete and - where appropriate - to replace the proposals it made in its Recommendation 1285 (1996).
15. Consequently the Assembly recommends that the Committee of Ministers 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 by applying the following principles:
i. There should be an advisory committee composed of 12 to 20 experts. No two members of the advisory committee may be nationals of the same state. The members of the advisory committee shall be elected for six years. They may not be re-elected.
ii. The members of the committee should not only have "recognised expertise in the field of the protection of national minorities", as provided in the convention, but should combine this with high moral character and political wisdom. Membership of the committee should also include a balance of professional and cultural backgrounds.
iii. The election of the advisory committee should take place on the same lines as the election of the European Commission of Human Rights or the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
iv. The members of the committee should sit in an individual capacity and not hold any position which is incompatible with their independence and impartiality or the demands of this office.
v. The committee should be allowed to determine its own standing orders and detailed method of conducting its business.
vi. The committee should be allowed to draw its information from a wide range of sources and to act on its own initiative.
vii. The committee should have the possibility to enter into a dialogue with the government of the contracting Party concerned as well as to hold hearings with national minorities and with non-governmental organisations.
viii. Although the proceedings of the advisory committee should be as transparent as possible this does not mean that they should always be public.
ix. The committee's reports and recommendations will be transmitted to the Committee of Ministers, who, in evaluating the adequacy of the measures taken by the Party concerned, should in normal circumstances convey it directly, without comment, to the state concerned. In exceptional cases, where the advisory committee has drawn the attention of the Committee of Ministers to a breach of the Convention, a discussion of the Committee of Ministers should be held, the conclusions of which will also be transmitted to the state concerned.
x. The report and recommendations will be published at the time they are transmitted by the Committee of Ministers to the state concerned.
xi. The Committee of Ministers is invited to provide the necessary financial and human resources for the advisory committee.
II. Explanatory memorandum
by Mr BINDIG
A. Introduction
1. Not long ago, in January 1996, the Assembly adopted Recommendation 1285 (1996) and Order 513 (1996), two important texts on the rights of national minorities. Some Assembly members may therefore wonder why it is considered useful to have another report and another debate on this matter. However, the Assembly has stressed on several occasions that it attaches great importance to an effective protection of the rights of national minorities in Europe. If one wants to reach concrete results, it is necessary to follow developments closely and continuously and to maintain whatever pressure one is capable of exerting upon these developments.
2. In addition, there are two concrete reasons for the present report: the first being the adoption of two important opinions by the European Commission for Democracy through Law ("Venice Commission") which should be brought to the attention of the Assembly; the second reason justifies the urgency of this report, which makes a number of concrete proposals for the implementation mechanism of the Council of Europe Framework Convention on the Protection of National Minorities, work on which is to start soon.
B. The interpretation of Article 11 of the draft protocol to the European Convention on Human Rights appended to Recommendation 1201 (1993)
3. It may be recalled that Recommendation 1201 (1993) contains, as an integral part, the text of a proposal for an additional protocol to the Human Rights Convention concerning persons belonging to national minorities. The Assembly had hoped that the Committee of Ministers would use this draft protocol as a basis for its own work. 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 not to follow this proposal and 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. 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. However, pending the work going on under the responsibility of the Committee of Ministers in the Ad Hoc Committee of Experts on Minorities (CAHMIN), the Assembly decided that it would continue considering the draft protocol in Recommendation 1201 (1993) as a reference text and that it would expect member States to base their legislation and policies in respect of minorities on it. Consequently, the respect of the principles of the protocol of Recommendation 1201 has, since 1993, been included as a "commitment" in the Assembly's Opinions on the admission of new member States to the Council of Europe.[2] The rapporteurs who have followed developments in some of the new member States after their accession to the Council of Europe, in accordance with Order 488 (1993) and 508 (1995) have also insisted on the application of the principles of this text. In the treaty on good neighbourliness and friendly cooperation between Hungary and Slovakia the two Contracting Parties agreed to "apply the norms and political commitments enshrined in the following documents as legal obligations: ... - Recommendation 1201 (1993) of the Parliamentary Assembly of the Council of Europe respecting individual human and civil rights, including the rights of persons belonging to national minorities."
5. Unfortunately, Recommendation 1201 (1993) has become an important stumbling block for the conclusion of a similar friendship treaty between Hungary and Romania. In fact, it is mainly Article 11 of the draft protocol which raises problems in this respect. 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."
6. Rather than trying itself to explain this provision, the Committee on Legal Affairs and Human Rights decided to ask the Venice Commission to give its opinion on article 11 and some of the other controversial articles of Recommendation 1201 (1993).
7. Among the notions which gave rise to difficulties is the concept of "autonomous authorities" in article 11. In fact, its meaning may be very wide-spread from near independence to practically non-existent self-government. The reference which the Venice Commission made to the Council of Europe Charter on Local Self-Government seems to be a very wise one and the Committee on Legal Affairs and Human Rights, which considered the opinion of the Venice Commission at some length at its meeting on 3 April 1996, decided to advise that one should use this opinion as a most important reference document. This interpretation of Recommendation 1201 (1993) takes away some of the unjustified illusions or fears about it.
C. A "hard core" of rights to be singled out in the European Charter for Regional or Minority Languages
8. The European Charter for Regional or Minority Languages was opened for signature and ratification in 1992. It had been elaborated by the Committee of Ministers at the proposal of the Conference of Local and Regional Authorities in Europe and - ultimately - the Parliamentary Assembly. Although its opening for signature and ratification was therefore four years ago the Charter is still short of one ratification to enter into force as it needs five. Until now, Finland, Hungary, the Netherlands and Norway have ratified. This situation in itself is already a matter for concern, to which one must add the fact that each Contracting State will determine the minority language or the minority languages to which the Charter will apply. It must also decide which provisions of the Charter apply to these languages. For this it must make a choice between the provisions contained in the Charter. Individual States are free, within certain limits, to determine which provisions will apply to each of the languages spoken within their frontiers. In addition, a considerable number of provisions comprise several options of varying degrees of stringency, one of which must be applied "according to the situation of each language". It is only in Part II of the Charter that one finds a number of principles which should be common to all regional or minority languages.
9. Given the rather sad state of ratification of the Charter, the Committee on Legal Affairs and Human Rights and the Assembly itself (see paragraph 4 of Recommendation 1285 (1996) have been looking for ways to give a boost to this important Council of Europe instrument, one of the aims of which should be to arrive at a certain harmonisation and at a certain minimum protection of the regional or minority languages on our Continent. Thus the proposal was made to arrive at a hard core of rights in the Charter which should be accepted by every Contracting Party in respect of the minority or regional languages it designates. Such a hard core would, of course, not form part of the Convention, which should not be changed, but could be submitted as a recommendation to (prospective) Contracting States.
10. Before making concrete proposals in this respect the Committee on Legal Affairs and Human Rights decided to consult the Venice Commission. In its opinion, the full text of which is attached to the present report, the Venice Commission arrives at the conclusion that the concept of a hard core is alien to the spirit and working system of the Charter, which already has a "hard core" of principles (Part II) which guarantees the effectiveness of the protection that it affords. In any event, the provisions of Part III, given their wording and the detailed fashion in which they regulate the subject-matter, are hardly suitable for the creation of a hard core likely to be accepted by all Contracting Parties. Moreover, in the opinion of the Venice Commission, a hard core of linguistic rights may be derived from the obligations provided for in the Framework Convention on the Protection of National Minorities, notably in its Articles 5.1, 6, 9.1, 10-14 and 17. The effectiveness of the protection that the Framework Convention offers will depend largely upon the implementation of the mechanism to ensure compliance with its provisions.
11. We shall discuss this implementation mechanism in the next chapter.
D. The implementation mechanism of the Council of Europe Framework Convention on the Protection of National Minorities
12. The Framework Convention for the Protection of National Minorities was one of the concrete results of the Vienna Summit in October 1993. It was adopted, in its final form, at the ministerial meeting of 10 November 1994 and it was opened for signature on 1 February 1995. It has now been signed by 32 member States, but ratified by only four of them (Hungary, Romania, Slovakia and Spain). It needs twelve ratifications to enter into force. However, there is hope that this high number of ratifications required (a record for the Council of Europe) may be reached soon and that the Convention may thus become operational in one or two years' time.
13. In its Recommendation 1255 (1995) the Assembly expressed the opinion that the Convention is weakly worded and that it formulates a number of vaguely defined objectives and principles, the observation of which will be an obligation of the Contracting State, but not a right which individuals may invoke. The Assembly felt that its implementation machinery is feeble and that there is a danger that the monitoring procedures may be left entirely to the governments.
14. In this respect one can but subscribe to the last sentence of the opinion of the Venice Commission, which I mentioned in the previous chapter, that the effectiveness of the protection that the Framework Convention offers will depend largely upon the implementation of the mechanism to ensure compliance with its provisions.
15. The implementation mechanism of the Framework Convention is laid down in its Articles 24-26 which read as follows:
"Article 24
1. The Committee of Ministers of the Council of Europe shall monitor the implementation of this framework Convention by the Contracting Parties.
2. The Parties which are not members of the Council of Europe shall participate in the implementation mechanism, according to modalities to be determined.
Article 25
1. Within a period of one year following the entry into force of this framework Convention in respect of a Contracting Party, the latter 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 this framework Convention.
2. Thereafter, each Party shall transmit to the Secretary General on a periodical basis and whenever the Committee of Ministers so requests any further information of relevance to the implementation of this framework Convention.
3. The Secretary General shall forward to the Committee of Ministers the information transmitted under the terms of this Article.
Article 26
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."
16. On 3 April 1996, the Committee of Ministers adopted an interim reply to Recommendations 1255 (1995) and 1285 (1996). In accordance with this reply, the Ministers' Deputies agreed to undertaken the work regarding the implementation mechanism of the Framework Convention, in accordance with the following procedure:
"1. to instruct an Ad hoc Committee of Experts on the Implementation Mechanism of the Framework Convention for the Protection of National Minorities (CAHMEC) to clarify pertinent questions and to identify possible options within the confines of Article 24-26 of the Framework Convention;
2. to establish an ad hoc committee of Deputies open to all and with the assistance and participation of experts in order to identify and agree on the broad lines of the implementation mechanism, on the basis of the report of the meeting of the CAHMEC;
3. to instruct the CAHMEC to draft, on the basis of the decisions taken by the ad hoc committee of Deputies, the necessary regulations and procedures, within an agreed period, to enable the Committee of Ministers to meet the requirements of Articles 24-26 of the Framework Convention;
4. to take final decisions on the implementation mechanism of the Framework Convention."
In addition to this, the Committee on Legal Affairs and Human Rights was informed that the first meeting of the new ad hoc committee of experts would take place at the end of June and that the Committee of Ministers intended to finish its work before the end of the year. Hence, if the Assembly is to make a positive contribution there is no time to lose.
17. In fact, the Committee on Legal Affairs and Human Rights did not wait for the reply of the Committee of Ministers, but convened a special meeting of its Sub-Committee on Human Rights on 2 April 1996 in Paris to consider the implementation mechanism of the Framework Convention. This meeting was attended by a large number of members of the Sub-Committee and by an equal number of experts. We were pleased that some diplomats also attended, although there had not been a reply to the official invitation sent by the President of the Assembly to the Committee of Ministers. When writing this report, the minutes of this working meeting were not yet available, but I intend to propose to the Sub-Committee to declassify them as soon as they are approved, so that all those involved in the elaboration of the implementation mechanism may have the benefit of these discussions.
18. The two expert reports which were prepared by Professor Gudmundur Alfredsson and by Mr Alan Phillips were declassified and are appended. These reports and the discussions in the Sub-Committee enable the Committee on Legal Affairs and Human Rights to make some concrete proposals to the Committee of Ministers on the composition and procedures of the advisory committee foreseen in Article 26. The Assembly, in its Recommendation 1285 (1996) already expressed the view that this advisory committee should be as independent, effective and transparent as possible and it may stress this point of view again. The draft resolution contained in this report therefore makes a number of concrete proposals concerning the principles to be applied.
Appendix I
12 April 1996
Doc. 7519
COMMUNICATION FROM THE COMMITTEE OF MINISTERS
Interim reply to Recommendation 1255 (1995) on the protection of the rights of national minorities and Recommendation 1285 (1996) on the rights of national minorities
(adopted by the Committee of Ministers on 3 April 1996 at the 562nd meeting of the Ministers' Deputies)
_____
The Committee of Ministers has taken note of Recommendation 1255 (1995) and 1285 (1996) and welcomes the continuing interest expressed by the Assembly in issues relating to the protection of national minorities.
In particular, the Committee of Ministers welcomes the support expressed by the Assembly for the widest possible signature and ratification of the European Charter for Regional or Minority Languages, the Framework Convention for the Protection of National Minorities and the European Charter of Local Self Government, and the early entry into force of the first two instruments.
With regard to the Assembly's proposal to draw up an amending Protocol to the latter instrument to enable non-member States to accede to it, the Committee of Ministers would inform the Assembly that it is seeking the views of the Steering Committee on Local and Regional Authorities (CDLR). It will inform the Assembly of the follow-up envisaged once it has received the opinion of the CDLR.
The Committee of Ministers has taken note of the views expressed by the Assembly regarding the Advisory Committee mentioned in Article 26 paragraph 1 of the Framework Convention for the Protection of National Minorities. It would inform the Assembly that, at their 560th meeting, the Ministers' Deputies agreed to undertake the work regarding the implementation mechanism provided for in Article 24-26 of the framework Convention for the Protection of National Minorities in accordance with the following procedure:
1. to instruct an Ad hoc Committee of Experts on the Implementation Mechanism of the Framework Convention for the Protection of National Minorities (CAHMEC) to clarify pertinent questions and to identify possible options within the confines of Article 24-26 of the Framework Convention;
2. to establish an ad hoc committee of Deputies open to all and with the assistance and participation of experts in order to identify and agree on the broad lines of the implementation mechanism, on the basis of the report of the meeting of the CAHMEC;
3. to instruct the CAHMEC to draft, on the basis of the decisions taken by the ad hoc committee of Deputies, the necessary regulations and procedures, within an agreed period, to enable the Committee of Ministers to meet the requirements of Articles 24-26 of the Framework Convention;
4. to take final decisions on the implementation mechanism of the Framework Convention.
It has further been agreed that the aim is to complete the first two stages by the time the Framework Convention is expected to enter into force. In this context, it is expected that the number of ratifications required to bring the Framework Convention into force will be achieved later this year.
The Committee of Ministers would draw attention to the fact that the Parliamentary Assembly will be able to keep fully abreast of the work in the CAHMEC, since it is entitled to designate a representative to participate in this Committee.
With regard to the drafting 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, the Committee of Ministers refers to the decision taken at the 554th meeting of the Ministers' Deputies. This decision, which was taken after thorough debate, was to suspend the work of the Ad hoc Committee for the Protection of National Minorities (CAHMIN) on this subject, its working papers being declassified and made available to interested circles. However, the Committee of Ministers would draw the Assembly's attention to the fact that it has also decided to continue reflection on the feasibility of further standard-setting in the cultural field and in the field of protection of national minorities, taking into account the Declaration adopted at the Vienna Summit. The Committee of Ministers will inform the Assembly in due course of the outcome of this work.
Appendix II
Strasbourg, 2 April 1996
AS/Jur/DH (1996) 2 rev
COMMITTEE ON LEGAL AFFAIRS AND HUMAN RIGHTS SUB-COMMITTEE ON HUMAN RIGHTS
THE RIGHTS OF MINORITIES
Memorandum
The composition and procedures of the Advisory Committee to be set up under the Framework Convention for the Protection of National Minorities by Mr Alan Phillips,
Director of Minority Rights Group International (MRG), London
_____
1. TERMS OF REFERENCE
This paper follows an invitation on 13 February 1996 to the author by the Clerk of the Parliamentary Assembly of the Council of Europe to draft a short memorandum on the composition and procedure of the advisory committee. This memorandum would serve as a basis for discussion at the Sub-Committee meeting on 2 April 1996, and subsequently for a draft report.
2. INTRODUCTION
This paper concentrates on the philosophy, composition and methodology of the Advisory Committee and is intended to stimulate debate by making some proposals on its composition and methodology.
The Council of Europe Framework Convention is remarkable amongst international legal instruments in that it provides a unique legal regime to protect national minorities and the rights and freedoms of persons belonging to those minorities. It has been speedily signed by many States. In the first week that it was open for signature 22 States signed and by 1 March 32 States had signed. Already Hungary, Slovakia, Romania and Spain have ratified the Convention and there is a momentum towards 12 States ratifying within a year.
The Framework Convention was initiated, drafted and signed when there were a number of violent inter communal conflicts in Europe. It was introduced with the background of many social tensions involving the denial of minority rights, especially as newly emerging democracies come to terms with their identities as truly independent States; States that are, de facto, multi-ethnic, multi linguistic and multi-religious in character, but whose politics can be ethno-nationalist.
Articles 24 inter alia provide for the Committee of Ministers to monitor the implementation of the Convention. While Article 25 records the following:
"Within a period of one year following the entry into force of this Framework Convention in respect of a contracting party, the latter 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 this Framework Convention.
Thereafter, each party shall transmit to the Secretary General on a periodic basis and whenever the Committee of Ministers so requests any further information of relevance to the implementation of this Framework Convention.
The Secretary General shall forward to the Committee of Ministers the information transmitted under the terms of this Article."
The Advisory Committee of the Framework Convention is specifically referred to in Article 26, it is to assist the Committee of Ministers in evaluating the adequacy of the measures taken by States Parties.
3. PHILOSOPHY UNDERLYING THE ADVISORY COMMITTEE
The Preamble to the Framework Convention is telling in revealing the objectives of the Convention and the environment in which it was constructed. They are central to the philosophy of its implementation and to the approach the Advisory Committee should adopt in interpreting the detail of the Convention.
The tenor of the Preamble is proactive, with the emphasis on "further realisation of human rights and fundamental freedoms" and with the use of language such as "development of identity" and "creating a climate of tolerance".
It also emphasises the importance of the issues with strong wording that the protection of national minorities is essential to stability, democratic security and peace. It is difficult to envisage any stronger language referring to issues that go to the raison d'�tre of the Council of Europe.
A failure therefore to have effective implementation mechanisms and relevant further information would question the competence of the Council of Europe on an issue that it is agreed is crucial to its existence and for the people of Europe. This is pioneering new territory for a legal instrument, but not for the political processes of the OSCE, from which certain methodology should be borrowed.
The OSCE regards the full implementation of all the (consensus) agreements as mandatory for security, no State would be allowed to openly flout the agreements, while close inspection and monitoring was encouraged, particularly in the security arena as a confidence building measure. The price of failure could have been war, the price of failure to respond positively to national minorities today could also be war, but more likely major social tensions, new claims for asylum, a reluctance to build closer unity between Council of Europe member States, and insecurity that inhibits trade and investments.
The reference to the relevant CSCE commitments reflects the desire expressed in AppendixII of the Vienna Declaration that the Council of Europe should apply itself to transforming, to the greatest possible extent, these political commitments into legal obligations. The Copenhagen Document in particular provided guidance for drafting the Framework Convention. It is argued by some that the Framework Convention places lesser responsibilities on States than some of the language of Copenhagen, e.g. Education, but of course States are always expected to meet their maximum commitments under either regime.
In looking at the Framework Convention and the Advisory Committee it is important to retain the concept that it is a means to an end, and certainly not the only means to the end, the aims that the Council of Europe set out in the preamble. Furthermore the Advisory Committee will not be the only actor that will wish to use the Framework Convention to promote stability, democratic security and peace by protecting national minorities.
The Committee of Ministers decided that a Framework Convention and Advisory Committee were necessary andit is clear that this was meant to add a legal regime to other political and economic regimes to promote stability. Furthermore it should add to other standards and in no way diminish them if they are already higher.
4. ADVISORY COMMITTEE MANDATE
Article 26 of the Framework Convention stipulates that:
"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.
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."
The Explanatory Report that was closely negotiated also determined that:
"The monitoring of the implementation of this Framework Convention shall, in so far as possible, be transparent. In this regard it would be advisable to envisage the publication of the reports and other texts resulting from such monitoring."
Some of this language is deliberately open using the expression �assisted by an advisory committee� which could even imply that the Committee of Ministers will essentially do the work. It is of course unrealistic to expect the busy Committee of Ministers to provide an expert view on 32 States reports. Indeed if it did, this would have substantial political implications. The Committee of Minister�s role must be in elect a good Advisory Committee and, as matter of principle, support them. The adage why get a dog and bark yourself is true, thoughthe Advisory Committee must then be given a free reign and not be muzzled.
Although the operations and practice will work out a modus vivendi and the membership and interpretation of the first Advisory Committee will be crucial, as can be seen by the outstanding job that Max van der Stoel has done as High Commissioner, some recommendations on the responsibilities will be needed and a recommendation would be helpful from the Parliamentary Assembly.
One key question asked later in this paper is whether the Advisory Committee's reports and recommendations would be taken as read by the Committee of Ministers or whether debate would be encouraged on the report and recommendations for action.
5. COMPOSITION OF THE ADVISORY COMMITTEE
The composition of the Advisory Committee demands members with expertise in the field, but beyond this the language is delightfully vague, while the procedures must be determined within a period of one year following the entry into force of the Convention, to ensure that the Convention can be monitored from the outset.
There is no clarification in the Framework Convention or in the Explanatory report on a number of key issues. These include the type of expertise required, the number of members, the form of nomination and the method of election as well as the length of service and the role of members. Some suggestions are given below to stimulate debate.
A target date of January 1997 might be realistic for establishing the Advisory Committee on current trends. This presumes that 12 States will ratify the Convention by the end of 1996.
1. Job Description
A job description is evidently required for potential members of the Advisory Committee, based on the earlier descriptions and decisions. So too is a candidate specification to help those involved with the selection process.
2. Experts on National Minorities
All members of the Advisory Committee should be of high moral character. Additionally the person must be an expert on national minorities. The second criterion is not quite as easy to fulfil as may appear initially; although there are many who have expertise in their own country, the number who have a breadth of experience is not high.
Minority Rights work demands a multi disciplinary team and approach to some of the most intractable issues that involve interpersonal relationships. Members should range from International lawyers to Linguistic scholars and Educationalists, from Political analysts to Anthropologists and Psychologists. All have their part to play in achieving an understanding of how the Convention has been implemented. There may also be a different kind of role for members from minority communities, who have experienced discrimination individually and collectively themselves.
Similarly it might be hoped that the Committee's membership would include a balance of ages, experiences, regions of Europe, sexes, religions, language and cultural groups. It will be necessary to use considerable wisdom and subtlety to achieve a balance such as this.
3. Number of members
The Advisory Committee needs to be sufficiently large to have a breadth of experience, and sufficiently numerous for a pool of country rapporteurs if an approach similar to the Committee monitoring the UN Convention on the Elimination of Racial Discrimination is adopted. However, it should be small enough to be cohesive and dynamic.The experience of the UN indicates that a number between 10 and 20 is appropriate. The suggestion that there might be one person from every ratifying State would be unmanageable when 32 States ratify the Convention. Suggestions that there should be nominees from non-ratifying States would be unacceptable to UN Treaty bodies.
4. Availability for Nomination
Quite clearly the availability of good people is always problematic, while the length a frequency of the meetings may make membership only possible for Diplomats, Scholars and retired persons. One way of widening potential candidates is to offeran honorarium for the work over and above the travel and subsistence costs.
5. Nomination Process
In order to identify the best people and to encourage transparency, the members of the Advisory Committee should be elected by the Committee of Ministers but be nominated by the Parliamentary Assembly. It is suggested that there could be up to three nominees who are citizens of the same State Party. The Parliamentary Assembly must be entrusted to devise formal or informal ways of achieving a balance of experience and expertise, while candidates would not be regarded as being representatives of their States.
6. Elections and length of service
The approach of the European Commission of Human Rights towards the election of their members may help. The form of election will need to be precisely determined but it should offer, via the Parliamentary Assembly, real choices of potentially expert candidates.
Not more than one person should be elected and serve on the Advisory Committee at any time from the citizens of any State to help achieve a geographic balance. It is suggested that each member may serve on the Advisory Committee for up to 6 years but that no member should be eligible for re-election. On the one hand, this would guararantee a reasonable degree of continuity and change, on the other hand, the absence of any re-election ensures that the prospect of re-election cannot affect a member's independence.
A system of phasing the elections would be needed to ensure some continuity but also some change. One possible method is to structure the arrangements, so that one third of the members retire every second year.
7. Membership in Individual Capacity
Each member of this Advisory Committee of the Council of Europe, like members of the European Court of Human Rights, should serve in their individual capacity. During the term of office they should not hold any position, which is incompatible with their independence and impartiality as member of the Committee or the demands of this office.
An expert from a particular State should be excluded from involvement when his own State is discussed. This is to ensure that the Committee is seen to be impartial and that there is little to be gained by an unscrupulous State placing pressure on "their" expert to speak favourably on "their" situation.
6. ADVISORY COMMITTEE PROCEDURES
1. Organisation of Business
The Committee should be left to determine its own precise standing orders and detailed method of conducting its business.
2. Frequency of Meetings
The volume of work, the frequency of meetings and their duration is impossible to judge clearly. Advice should be taken on this from the experience of the UN. Clearly the work will take longer as the first reports are received and until the Committee establishes the most efficient and effective way of working in practice. It is likely that at least two meetings a year of 4 weeks duration each will be needed. This is calculated on the basis of up to three days being allocated to consider each State report, while the progress of each ratifying State will need to be reviewed not less than once every three years.
3. Sources of Information
It is suggested that the Advisory Committee collect information and receive advice from whatever sources it chooses and in whatever way that it can. Military intelligence would demand nothing less, though in this case all information would have to be transparent and collected in a legal and proper way. Information should be presented by Governments, by Intergovernmental bodies (e.g. UNHCR), by persons from national minorities, academic bodies, and by local and international NGOs.
The Committee will need to use its experience to filter manifestly spurious and ill intended data, not least of all from politicians. The Advisory Committee must not become a political platform but a locus for substantive monitoring of achievements. It will want to have a methodology of careful double checking to verify data, and always to give Governments an opportunity to respond to criticisms. A dialogue should be encouraged to assist governments to be more effective in their implementation, whereever possible.
The information and advice must be essentially on laws, policies and practices that specifically affect national minorities, rather than the whole of society.
4. State Parties' reports
After the initial transmission of full information to the Secretary General on the legislative and other measures taken to given effect to the Convention, on a periodic basis further information of relevance will be transmitted. A cycle of three yearly reports may be appropriate, except where the Advisory Committee expresses special concern and requests through the Committee of Ministers a need for more regular reporting. The Framework Convention itself defines the areas of its competence and this will give the skeleton of how to organise state reports.
A model report and guidance notes would probably be very helpful to officials, recognising that some State will have genuine concerns that this may increase their bureaucratic work load. Although this may pale into insignificance when compared to the stability that this may give Europe, it is important that this is not too onerous and it recognises that officials will attend in person, as necessary, to provide supplementary data. Officials in interior/home affairs ministries are not staffed and judged on these criteria at present.
5. Presentation of Reports
Much can be learnt from the good practices established by the UN Treaty bodies. The dates of meetings and their agenda should be well publicised and a fund should be considered to enable members of national minorities (especially from Eastern Europe) and involved NGOs to come and make presentations.
Where possible, written communications should be received in advance so that the materials can be studied carefully by the Advisory Committee.
The Committee should also be prepared to take oral evidence from all serious parties in a similar way to the UN Working Group on Minorities. A dialogue should ensue with the relevant government, drawing on the best practices of the Ad Hoc Committee of Experts on the implementation procedure under the Convention on the Elimination of Racial Discrimination. This should be enhanced, for the reasons already given, to allow ad hoc representation on a specific situation, if conditions have changed considerably since the last detailed review.
6. Visits
Selected members of the Committee, possibly nominated rapporteurs, should be encouraged to make visits to States parties and be able to call on bodies at short notice to identify what is happening in situ. Governments should be encouraged to give whatever help is reasonably requested. These visits should be designed as confidence building measures to promote the Framework Convention and should not be targeted at problematic situations alone.
7. Transparency
The explanatory report on the Framework Convention that was specifically agreed by the Committee of Ministers states that the monitoring of the implementation of this Framework Convention shall, in so far as possible be transparent. Consequently, it must be expected that the reports and other texts resulting from such monitoring will be published (para 97). It will probably be in the interest of its independence that, when conclusions and recommendations are being drawn up, the Advisory Committee meets in camera.
8. Outcomes of Deliberations
The Advisory Committee will evaluate the adequacy of the measures taken by parties and should make recommendations thereon.
The format of their report should ensure that it includes successes, failures, and recommendations for action. The report should as far as possible be by consensus, votes may be called by secret ballot if requested by any two members. These will be transmitted as advice to the Committee of Ministers, who should in normal circumstances take the advice and convey it directly onwards to States without comment. In exceptional circumstances where the Advisory Committee has identified and drawn the attention of the Committee of Ministers to a serious breach of the Convention, a discussion of the Committee of Ministers should be held with the possibility of the issue being presented to the Parliamentary Assembly for a wider discussion.
Clearly debate cannot be prohibited, as the Advisory Committee is subservient to the Committee of Ministers, but members can be discouraged from reopening an investigation unless there were major procedural flaws. In such rare cases the report might be referred back. Conversely there will be occasions when the Advisory Committee will want to seek the advice, support or concern of the Committee of Ministers to exert substantial pressure but in general the form of persuasion will essentially be through the spotlight of publicity.
9. Confidence building - Dissemination of findings
The report and any recommendations will go via the Committee of Ministers to the relevant State, while the Explanatory Report to the Framework Convention makes clear that the publication of the report is envisaged. This is essential for transparency. Too often international instruments and States compliance are treated as confidential offering no opportunity for civic society to be informed and to participate in a democratic manner.
Consequently it will be important to look at ways of disseminating the findings within a country, possibly with the help of NGOs, while the need to translate the report into minority languages, as well as the main official language, must not be forgotten.
7. COUNCIL OF EUROPE SUPPORT
1. Staffing
This is one of the most critical areas, where thecompetence, commitment, experience, and seniority of the Council of Europe staff will affect the effectiveness of the Committee. It will be important for there to be translation, interpreting and secretarial support while good notes and advice on how to make best use of the system will be found invaluable by minorities.
2. Links
Links will need to be developed and maintained with other parts of the Council of Europe and outside to maximise the contacts and outreach of the promotional work. Committed, unbureaucratic, efficient and effective staff are essential and always at a premium.
3. Budget
A substantial budget will be essential. There are a number of essential costs apart from staff, interpreting and translation costs,it should include all costs and an honorarium for Committee members, the possibility of monitoring visits, funds to enable minorities to attend, the publication of effective advice, training on the Framework Convention throughout Europe etc.
The Committee of Ministers will also have another indirect but important role in agreeing to financial and staffing resources to undertake the work.
If the intention is to see that the Framework Convention is not implemented then the easiest way to do so and avoid criticism from others is probably to starve the Committee and the Secretariat of money. The arguments can already be predicted on growing bureaucracy and the need for tight financial discipline. The crucial argument here is did the Committee of Ministers mean to refer to the protection of national minorities being essential to stability, democratic security and peace.
I suggest that costs are compared to those of buying just one new military fighter aircraft at over $30 million or the cost of the peace keeping mission in Yugoslavia today.
8. PROMOTIONAL ACTIVITIES
1. Exchange of Information
Other actors and other mechanisms are in place and indeed should be encouraged to meet such an important common goal. Governments and indeed the electorates do not like duplication without added value and do not like inefficiencies through poor information and communication. Consequently it is essential that there is a good exchange of information both within the Council of Europe and between it and the OSCE and the UN.
2. Education and Technical Assistance
Where possible Intergovernmental bodies (e.g. the OSCE High Commissioner on National Minorities), Parliaments (including the Council of Europe Parliamentary Assembly), Governmental bodies (e.g. Ministries of Justice, Local Authorities, Quasi Governmental bodies (e.g. Minority Commissions), Academic Institutes (e.g. Human Rights and Ethnic relations studies), and Non Governmental bodies (e.g. International Helsinki Federation, Minority Rights Group) should be enjoined by The Council of Europe to help make this Convention a success.
It implies information, education and technical assistance activities that explain in different languages, to different cultures, to different educational and social groups the substance of the convention so that it may be popularly known and respected. Too often under communist systems in Eastern Europe Rights were treated as a state secret.
It would need to go beyond this to be constructive identifying ways and means by which States and other have successfully developed models of good practice within the context of the Framework Convention. These may include sharing the curricula of training courses for public official, legal training, multicultural education within the curriculum, language and culture activities and their enhancement through effective laws, policies and practices.
The Advisory Committee should be kept abreast of these activities and ensure that its experiences are of benefit to others working to the common objective of protecting national minorities.
___________________________
Author�s Note
The author of this paper is the Director of Minority Rights Group International (MRG) based in London. The organisation has considerable experience of promoting standards for minorities in different fora including the CSCE (as it was) at Copenhagen, Geneva and Helsinki as well as at the UN with the UN Declaration on the Rights of Person belonging to National or Ethnic, Religious and Linguistic Minorities. MRG has also participated in CSCE implementation meetings, provided information to UN Treaty Bodies, and contributed to the UN Working Group on Minorities.
However this paper has been prepared at comparatively short notice and must be regarded as a personal contribution. The views here do not necessarily represent the views of MRG as an organisation, as full consultations have not taken place in the comparatively short time available. Nevertheless, as the author, I would like to thank those who commented on the first draftvery speedily and gave me considerable help in improving the text, which of course remains my responsibility.
Alan Phillips
Appendix III
Strasbourg, 13 May 1996 AS/Jur/DH (1996) 3 rev
COMMITTEE ON LEGAL AFFAIRS AND HUMAN RIGHTS
SUB-COMMITTEE ON HUMAN RIGHTS
THE RIGHTS OF MINORITIES
Memorandum on the Advisory Committee under Article 26 of the Framework Convention for the Protection of National Minorities
by
Professor Gudmundur Alfredsson[3]
_____
Introduction
1. This report considers in three chapters the various options concerning the functions, procedures and composition of the Advisory Committee (AC) which is foreseen in article 26 of the Framework Convention for the Protection of National Minorities (FC), as adopted by the Council of Europe in 1994. The report is prepared for the Sub-Committee on Human Rights of the Parliamentary Assembly. Frequent references are made to comparable practices of the United Nations human rights programme, in particular the treaty-monitoring bodies, as suggested in the request addressed to the author by the Clerk of the Parliamentary Assembly.
2. Under Article 24, the Committee of Ministers "shall monitor the implementation" of FC by the Contracting Parties. The AC will serve under the Committee of Ministers and advise them in carrying out this task. The maximum professionalism of AC as a human rights monitoring body, in terms of well-defined and precise tasks, detailed reporting guidelines and independent expertise, would undoubtedly facilitate the work of the Committee of Ministers by emphasising objectivity and impartiality, by contributing to the equal treatment of both groups and countries, by relying on the rule of law with a focus on the technical and legal aspects of FC, and by reducing the politization of many sensitive issues bound to come up for consideration.
Functions
3. The tasks of AC center around the review of State reports, both initial and supplementary reports. Governments are expected, within a year of the entry into force of FC in respect of a State Party, in accordance with paragraph 1 of article 25, to submit "full information on the legislative and other measures taken to give effect to the principles set out in" FC. Additional reports are due, on a periodical basis and in accordance with paragraph 2 of article 25, with "any further information of relevance to the implementation of" FC. The Convention does not employ the terminology of 'State reports', but the procedure nevertheless amounts to what is commonly so known; the use of this term would provide ready reference to well-established treaty-monitoring procedures employed by the United Nations.
4. In reviewing the State reports, the AC must be in a position to evaluate information relating to both law and fact. The FC emphasises full information about measures which are intended to give effect to its principles and which are relevant to the implementation of these principles. In paragraph 1 of article 26, there is also a reference to evaluating "the adequacy of the measures taken". It is important that States have in place legislative acts and administrative measures which fall in line with the commitments undertaken, but these are not worth much without effective remedies leading to the corresponding realization of the principles into everyday life of the persons concerned.
5. The AC must therefore obtain information from the States Parties about relevant bills of rights, legislation and administrative or other measures; the incorporation of international and regional standards and those in bilateral agreements; available remedies with focus on judicial and administrative decisions; negotiated settlements; the relevant activities of independent national institutions in general and of those set up for minority issues (commissions, round tables, etc.) in particular; autonomous regimes or other special arrangements to the benefit of minorities; relevant statistics; and so on. These observations relate to the remarks below, under procedures, about the need for detailed reporting guidelines.
6. Many treaties and conventions adopted under the auspices of international and regional organizations contain standards relating to minority rights. This is true for the fundamental rules concerning equal enjoyment of all human rights, that is civil, cultural, economic, political and social rights, including equality before the law, equality before the courts and equal access to public service. The prohibition of discrimination in this enjoyment, on grounds related to such minority characteristics as national or ethnic origin, culture, language and religion, is likewise spelled out in a long series of instruments. In addition, many texts carry minority-specific standards, either establishing special rights or obliging States to take special measures (also referred to as preferential treatment or affirmative action) in order to overcome discriminatory patterns and to guarantee equal enjoyment of the rights.
7. As far as UN treaties with reporting obligations are concerned, there are equal enjoyment, non-discrimination and minority-specific provisions in the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and the International Convention on the Elimination of All Forms of Racial Discrimination. For each one of these treaties, the respective independent monitoring bodies have adopted substantive reporting guidelines with detailed instructions to the reporting States; the guidelines also serve to influence the objective examination of the reports by the expert committees concerned. To a large extent, States likely to subscribe to FC are already Parties to these international treaties. The AC has much to learn from the existing practices of these committees, in particular with regard to the preparation and adoption of reporting guidelines; the lessons are contained in their annual reports and in the Manual on Human Rights Reporting, New York: United Nations, 1991. See also below under procedures and composition.
8. The increasing number of reporting obligations has caused some State unhappiness. Nevertheless, ideas about a super-report or otherwise simplified reporting procedures have not yet prevailed. There is no doubt that the FC standards and reporting requirements overlap with those in some of the above-mentioned treaties. To the degree possible, the AC may want to streamline its own reporting guidelines along similar international exercises. The AC may even want to call upon the Council of Europe Secretariat to compile the relevant portions of reports by States Parties to FC under the corresponding UN instruments for reasons of accuracy and completeness. The AC should never be satisfied with anything less than the highest quality of standards and the reports thereon, even to the point of exploringly reaching beyond the FC principles (see in this context the 10th preambular paragraph of FC).
9. Admittedly, the goals now described are ambitious, but they would serve to give the AC, and by extension the Council of Europe, a more significant role in the supervision of compliance with minority rights standards. In this manner, the danger of reduced standards and conflicting reports is also reduced. AC would most definitely be unique and useful as the only treaty-based monitoring body anywhere with a focus on and comprehensive coverage of minority rights. These comments may be appropriate inasmuch as the Council now finds itself in third place, with respect to both relevant standards and implementation procedures, behind the Organization on Security and Cooperation in Europe (OSCE) and the United Nations.
Procedures
10. In this chapter, the following issues will be addressed: guidelines to Governments for their preparation of the State reports; the availability of additional information about State performance from other IGOs as well as NGOs; the access of minorities and their representatives to AC meetings; a set of possible recommendations from AC in reaction to the examination of the State reports, with an emphasis on technical cooperation; and practical questions like methods for handling reports in AC meetings, meeting time, Secretariat support, and field visits.
11. The AC should draft and adopt guidelines for each substantive article of FC, explaining in considerable detail the legal and factual information needed and wanted for the examination of State reports. In so doing, the AC will make the reporting task easier for Governments; the reports and their consideration by AC will be harmonized; and different countries will be asked identical questions resulting in similar treatment with the same expectations across the continent. In this manner, the universality of the standards and the rule of law will be strengthened. In preparing the guidelines, as mentioned above, the AC can draw many lessons and precedents from the practices of the UN treaty-monitoring bodies.
12. There is plenty of information on the market about the situation of minorities in all of the likely States Parties. Reference has already been made to State reports under UN treaties with minority-specific standards; relevant information appears also in the case-law of the treaty-monitoring bodies, in the reports of the Special Rapporteurs and working groups of the UN Commission on Human Rights and in the reports of research rapporteurs and working groups of the Sub-Commission on Prevention of Discrimination and Protection of Minorities. Additional information about State performance in this field is also available from other IGOs (UN Secretariat entities like CHR, DHA and DPA, UNHCR, UNDP, UNU, UNRISD, UNESCO, ILO, the World Bank, OSCE, EU, etc.) and NGOs (the Minority Rights Group, the International Helsinki Federation, Amnesty International, Human Rights Watch, etc.).
13. There is a clear trend at the United Nations to grant minorities or their representatives direct and easy access to human rights meetings where issues of concern to them are debated. This is the case for both the Working Group on Minorities (established in 1995) and the Working Group on Indigenous Populations (established in 1982), both expert bodies which are answerable to the Sub-Commission. In addition, several groups have obtained consultative status as NGOs with the Economic and Social Council which opens the doors to most UN human rights meetings (see in this context paragraph 2 of article 17 of FC). The UN High Commissioner for Human Rights has received a mandate from the General Assembly authorizing him to deal directly with minorities. At least two cases have been made public where the UN Secretary-General has exercised his good offices on behalf of and in close cooperation with groups in trouble.
14. At the OSCE, contacts with minorities and their representatives are an essential component of creating and maintaining dialogue for preventing conflicts and protecting human dimension standards. The High Commissioner on National Minorities has set an excellent example. The overall experience of IGOs with increased access by groups and frequent encounters with groups has been positive and productive.
15. As far as the UN treaty-monitoring bodies are concerned, groups and their representatives are increasingly making use of complaints procedures (when available). Information from NGOs is also a major factor in the consideration of State reports, either officially, like in the case of the Committee on the Rights of the Child, or unofficially for some of the other committees. In both settings, such information contributes to supplementing or even correcting what is sometimes self-serving and uncritical information received from the States. It is both desirable and natural that the AC, relying on equality and the rule of law and seeking all the necessary facts, follow these participation trends which so clearly appear in the work of other IGOs, by giving minorities and NGOs an opportunity, orally and/or in writing, to present pertinent information and any other relevant points of view.
16. If Government representatives were to think that proposals of this kind are going too far, they should be reminded that State sovereignty, political independence, national unity and territorial integrity are amply protected under international law in general and article 21 of FC and other international human rights instruments in particular. A monitoring procedure with minority access merely wants to hear the intended beneficiaries, living in democratic societies, with a view to establishing that the States are obeying the rules of the game.
17. When the AC comes across instances where State performance falls short of FC principles, it should have resort to a well-defined variety of recommendations which the Committee of Ministers may want to use in their dealings with a State Party. These recommendations, to mention only a few, could range from calls or demands for:
- the adoption of, amendments to and/or implementation of new or existing legislation and administrative measures in light of FC principles;
- the setting up of independent national institutions, in particular those dealing specifically with minority issues and with minority participation;
- the necessary educational and training facilities, including trainers and teaching materials, for creating the mutual respect and understanding required for the realization of FC principles;
- the translation of relevant instruments, as well as State reports under FC and AC recommendations, into the respective national and minority languages;
- the enhanced cooperation with or use of any international or regional human rights implementation body which is or could be dealing with the situation in the country in question;
- technical cooperation, by way of expert assistance and advisory services, with the Council of Europe Secretariat, the Venice Commission, other IGOs as appropriate, or non-governmental and academic institutions. One of the aims of such cooperation would be the prevention of violations and violence through improved legislation and dialogue between the parties; and, finally,
- when everything else fails, the condemnation of obvious lack of State compliance with the FC principles.
18. The technical cooperation avenue, mentioned in the preceding paragraph, is gaining ground with the UN treaty-monitoring bodies; it is currently the fastest growing branch of international and bilateral human rights work. For maximum use of limited resources and better results, technical assistance activities would benefit from improved cooperation and coordination between the various IGOs and other actors; again, here is a possibility for AC and the Council of Europe to assume a leading role in the field of minority rights supervision. The AC may accordingly request the Council of Europe Secretariat to compile information about relevant projects of this kind being rendered to FC States Parties, with the aims of avoiding unnecessary duplication of efforts and of directing assistance to where it is most needed.
19. The Committee of Ministers should have to explain its reasons for a decision not to follow AC recommendations. Such a requirement will serve to further move minority rights from the realm of politics to the rule of law.
20. State reports should be due a few months prior to the AC meeting where they will come up for discussion, so that AC members and other interested parties can review them and compare them with other available source materials, including Council of Europe Secretariat compilations as suggested above. Representatives of the Government concerned should be present at these meetings in order to answer questions and provide clarifications. Representatives of minorities, other States, IGOs and NGOs (drawing on the accreditation experience of the Council of Europe and/or the United Nations) should have the right to speak. The meetings should be public, although the AC may want, in exceptional circumstances, to keep the option open for certain matters to be considered behind closed doors if quiet diplomacy is deemed more likely to produce results. Dialogues between Governments and groups, for example, could be better conducted in private.
21. The State reports should be public documents of the Council of Europe. The reports and any additional information, as well as the debates thereon (except for closed meetings), should also be made available in the respective countries in both national and minority languages (see comment on transparent monitoring in paragraph 97 of the Explanatory Report to FC).
22. It is reasonable to expect that the examination of each State report would take a minimum of 1-2 meeting days. With twelve States Parties, for example, the AC would require meeting time of 3-4 weeks per year. At the outset, for the preparation of reporting guidelines and rules of procedures (conduct of meetings, election of officers, voting, etc.), additional meeting time would be needed. Later on, moving on to periodical reports, meeting time requirements might go down. Strong Secretariat support, in terms of information gathering, analysis and drafting work, would also reduce the number of necessary meeting days.
23. As a matter of preference, decisions should be taken by consensus. If that is not possible, the members should be able to take decisions by a majority vote. A dissenting voice may (or should even be expected to) explain his/her vote.
24. States Parties should be encouraged to invite the AC to meet in their countries for obtaining first-hand information and making direct contacts with the people involved. Likewise, it would be desirable if AC members with Committee endorsements, Secretariat support and Government approval were to visit countries on fact-finding and/or needs assessment missions, as is now done by the Committee on the Elimination of Racial Discrimination.
Composition
25. In article 26 of the FC, paragraph 1, it says that AC members "shall have recognized expertise in the field of the protection of national minorities". Such expertise exists in many places: in governmental offices, with the minorities themselves, in academia and at NGOs. The wording of article 26 indicates expertise in human rights and minority rights; it should also be read to mean different professional disciplines, knowledge of country situations, political wisdom, and practical experience.
26. There is good reason to insist also upon the independence of AC members which is even more important than their expertise. The members of the UN treaty-monitoring bodies, as well as those of the Sub-Commission on Prevention of Discrimination and Protection of Minorities and its working groups on minorities and indigenous populations, are as a rule designated as independent experts. They are not all perfect, some are more independent and expert-oriented than others, but there is nevertheless a marked difference between the debates and decisions of such expert bodies and organs composed of governmental delegates. With reference to the independent experts serving on its Commission and Court of Human Rights, the Council of Europe has a distinguished record to build on.
27. The choice between an AC with one member for each State Party or a fixed number (5, 7, 9 or 11 members) is not really important, as compared with the qualifications. Cost considerations would speak in favour of a fixed number. Likewise, the duration of terms is not all that important (3, 4 or 5 years), but the possibility of reelection would help build up AC expertise.
28. Decisions to be made about the functions and procedures of AC will inevitably influence its composition. Independent persons with recognized expertise are more likely to want to serve on a monitoring body with serious and significant functions, to which the Committee of Ministers and States Parties are bound to listen. At the same time, such a body of prestige will also prompt a number of Parties, even more eagerly than otherwise would be the case, to nominate their own loyal functionaries as candidates for AC membership. Perhaps both Governments and minorities could nominate experts (one or more), and these could be evaluated by the Parliamentary Assembly and/or the Secretary General, while the final choice, on the basis of merits, would rest with the Committee of Ministers. It might also be desirable if the qualifications were to be described in positive terms (what is necessary) or negative terms (excluding certain categories of people). The wise choice of members may well be crucial for the success of AC in its role of monitoring measures taken to give effect to the FC principles.
Appendix IV
Opinion of the Venice Commission on the interpretation of Article 11 of the draft protocol to the European Convention on Human Rights appended to Recommendation 1201 (1993)
Introduction
By letter dated 24 November 1995 the Committee on Legal Affairs and Human Rights of the Council of Europe's Parliamentary Assembly requested the assistance of the European Commission for Democracy through Law in the preparation of an opinion on the interpretation of the draft Protocol to the European Convention on Human Rights appended to Recommendation 1201 (1993), with particular reference to Article 11 of the draft.
The Sub-Commission on the Protection of Minorities examined this question at its meeting in Venice 29 February 1996 on the basis of a report prepared by Mr MALINVERNI and Mr MATSCHER.
The present opinion, which is limited at this stage to the question of Article 11, was adopted by the Plenary Commission at its 26th meeting (1 and 2 March 1996).
* * *
1. The object of the request
By its Recommendation 1201 (1993), the Parliamentary Assembly requested the Committee of Ministers of the Council of Europe to adopt an additional protocol to the European Convention on Human Rights, drawing on a proposed text appended to the Recommendation and forming an integral part thereof. The proposed text was one of the reference documents used in the work of the Committee of Experts for the Protection of National Minorities (CAHMIN), which was entrusted with the task of drafting an additional protocol to the European Convention on Human Rights, aimed at guaranteeing individual rights in the cultural field, particularly for national minorities. Moreover, it was and is still used as a reference document by the Assembly whenever it examines applications by States for membership of the Council of Europe (see Recommendation 1285(1996) of the Assembly). Above all, allusions to the proposed text have been included in several bilateral treaties regulating neighbourhood relations between member States of the Council of Europe.
The letter in which the Commission's assistance was sought by the Committee on Legal Affairs and Human Rights refers to this particular fact as well as to the difficulties in interpreting, in this context, the draft protocol both as a whole and as regards Article 11 thereof, which reads as follows:
"In the regions where they are 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 this specific historical and territorial situation and in accordance with the domestic legislation of the State."
The fact that this provision is not an operative rule of international law but a mere proposal to which reference is nevertheless made in other international treaties creates a special situation that makes the task of interpreting this text a difficult one. The Commission feels that in this instance account should be taken not only of the ordinary meaning of the terms used but also of the relevant travaux pr�paratoires, the other work carried out within the Council of Europe with regard to the protection of national minorities, the practices of member States as regards the right of the minorities to have at their disposal local or autonomous authorities, and the attitudes adopted by Council of Europe member States towards this provision (see, mutatis mutandis Articles 30 and 31 of the Vienna Convention on the Law of Treaties of 1969).
All these elements capable of revealing the substance of the right of minorities to have at their disposal local or autonomous authorities as it may be understood and applied by European States.
2. Elements to be taken into consideration for the purpose of interpretating Article 11 in general
a. The travaux pr�paratoires: the report proposing the adoption of Recommendation 1201 (1993) (WORMS report)
The introductory report by Mr WORMS is not very helpful for the purpose of interpretating Article 11. It simply indicates that "Articles 10 and 11 deal with rights which may have political consequences. They have been drafted having in mind the need to preserve in any case the integrity of the State. Contacts with citizens of another country shall take place while duly "respecting the territorial integrity of the State". As regards the status of appropriate local authorities to allow a certain degree of administrative autonomy of the regions where minorities are in a majority, these authorities can only be established in accordance with the domestic legislation of the State".
b. Work carried out in the Council of Europe with regard to the protection of the rights of minorities
The Venice Commission's proposal for a European Convention for Protection of Minorities does not contain any right for persons belonging to minorities to have at their disposal local or autonomous authorities. Article 14 paragraph 1 of the Commission's proposal provides that "States shall favour the effective participation of minorities in public affairs, in particular decisions affecting the regions where they live or the matters affecting them".
In the Vienna Declaration of Heads of State and Government of the member States of the Council of Europe, of 9 October 1993, it is recognised that the creation of a climate of tolerance and dialogue is necessary for participation by everyone in public life. An important contribution to this can be made by local and regional authorities.
The Framework Convention for the Protection of National Minorities did not borrow from Article 11 of the Parliamentary Assembly's proposal the idea of granting to persons belonging to national minorities in the regions where they are a majority "the right to have at their disposal appropriate local or autonomous authorities or to have a special status". In this Convention the right to have a special status is in fact replaced by a provision based partly on the Venice Commission's proposal: Article 15 of the Framework Convention guarantees the right to effective participation of persons belonging to national minorities in public affairs affecting them. However, no reference is made to local authorities. From the stand point of the Framework Convention, participation in public affairs is above all a question of personal autonomy, not of local autonomy.
Nor has the case-law of the European Convention on Human Rights implied that some provisions of this Convention could be used for the purpose of claiming a right to a special status. The European Commission of Human Rights has twice declared that the Convention does not include any right for national minorities to self-determination (No. 6742/75, DR/3 p. 98, concerning Germans who formerly lived in Czechoslovakia; No. 7230/75, DR/7 p. 109, concerning the population of Surinam). Article 3 of Protocol No. 1 (guaranteeing electoral rights) does not apply to elections to non-legislative bodies such as municipal councils (No. 10650/83, DR/42, p. 212), nor does it guarantee any right of national minorities to separate political representation (Nos. 9278/81 and 9415/81, decision of 3 October 1983, DR/35 p. 30)[4].
It follows from the foregoing that international law cannot in principle impose on States any territorial solutions to the problem of minorities and that States are not in principle required to introduce any forms of decentralisation for minorities (see also Article 35 paragraph 2 of the Copenhagen Declaration).
c. The attitude of States towards Article 11
The treaty of 5 April 1995 between Hungary and Croatia refers to Recommendation 1201, and contracting parties did not make any declaration when ratifying it.
The treaty of 19 March 1995 between Slovakia and Hungary on good neighbourly relations and friendly cooperation [Article 15 paragraph 4(b)] refers to Recommendation 1201, but the Government of Slovakia made the following declaration when ratifying it: "The Government of the Republic of Slovakia declares that at no time did it accept or enshrine in the treaty any formulation founded on recognition of the principle of collective rights for minorities or allowing of the creation of autonomous structures on an ethnic basis."
It seems, lastly, that the inclusion of a reference to Recommendation 1201, in particular to Article 11, is at the centre of the negotiations concerning a bilateral treaty between Hungary and Rumania.
States seem in fact to be afraid that the right to have appropriate local or autonomous administrations, combined with the right to transfrontier contacts (Article 10 of the draft protocol), may promote secessionist tendencies. Even those States which, while adhering to the principle of unitarity have granted a large degree of regional autonomy hesitate to accept binding international instruments on the right of minorities to a certain autonomy. As pointed out by H. KLEBES[5], sensitivity towards any autonomy of national minorities is still too great in many States: there is a fear of cultural autonomy leading to administrative autonomy, followed by secession.
d. The practices of European States in respect of the rights of minorities to have at their disposal local or autonomous authorities
In the course of its work, the Commission has already observed the diversity of legal models of protection of minorities in Europe, a diversity which reflects the complexity of situations and, hence, the variety of solutions adopted by the different States to deal with the problem concerned[6]. The Commission's work and a study of national systems for protecting minorities do not reveal the existence of any common practice in the matter of territorial autonomy, even in general terms.
In the Commission's view, the above-mentioned elements indicate:
� that any attempt to interpret Article 11 of Recommendation 1201 (1993) should be very cautious; and
� that, having regard to the present state of international law, a broad approach to the right of minorities to have local or autonomous authorities at their disposal is possible only in the presence of a binding instrument of international law, which is not the case in this instance.
3. Interpretation of Article 11 of Recommendation 1201 (1993)
a. "... the persons belonging to a national minority ..."
Holders of the right provided for in Article 11 are "the persons belonging to a national minority", not the minorities as such, although, in the Commission's view, despite this formulation, the right to autonomy is conceivable only as a right exercised in association with others. Therefore, the right in question does not imply for States either its acceptance of an organised ethnic entity within their territories, or adherence to the concept of ethnic pluralism as a component of the people or the nation, a concept which might affect any unitarity of the State. The presentation of the minority phenomenon in Article 11 is no different from that in the other provisions of the text proposed in Recommendation 1201: it is indirect and based on recognition of individual rights, albeit exercised in association with others (ie. collectively), a point merely mentioned in the Slovak declaration accompanying the ratification of the neighbourhood treaty with Hungary. This element should nevertheless be taken into consideration for the purpose of interpretating the substance of the right provided for in Article 11.
Article 1 gives a definition of the term "national minority". This denotes a group of persons in a State who: reside in the territory of a State and are citizens thereof; maintain long-standing firm and lasting ties with that State; display distinctive ethnic, cultural, religious or linguistic characteristics; are sufficiently representative, although smaller in number than the rest of the population of that State or of a region of that State; and are motivated by a concern to preserve together what constitutes their common identity.
It follows from this definition that the persons to whom the rights included in Recommendation 1201 are guaranteed are nationals (citizens), of the State, not foreign migrants. This is further underlined by the fact that only persons belonging to "historical" minorities (having "long-standing, firm and lasting ties" with the State) can enjoy them.
The expression "long-standing, firm and lasting ties with that State" should be so interpreted as to include ties with the territory of a State as a component of the latter. In this way persons belonging to a minority will not lose minority status as a result of the transfer of the territory to another State or to a new State, and Recommendation 1201 will retain its relevance in the event of such territorial transfer or of State succession - assuming, of course, that the persons concerned continue to be in a minority.
b. "... in the regions where they are a majority ..."
A minority must constitute a majority in a "region" for Article 11 to be applicable. However, it is very difficult to define the term "region" in the context of this provision.
In principle, the term should be construed in its geographical, not administrative or political, sense. But it also has an historical dimension which is not unconnected with the settlement of various groups in a particular territory.
In fact, States have a large margin of appreciation in defining what they regard as a "region". However, the designation of a particular territory as a "region" for the purposes of the application of Article 11 must be done in good faith. In particular, it should not be aimed at rendering Article 11 inapplicable, nor be arbitrary (see, in this context, Article 16 of the Framework Convention). On the contrary, if should be based on objective criteria and have regard to the minority phenomenon. In the course of its own work, the Commission explicitly stated that it was necessary for States to take into account the presence of one or more minorities on their soil when dividing the territory into political or administrative sub-divisions as well as into electoral constituencies (explanatory report to the Venice Commission's proposal for a European Convention for the Protection of Minorities, paragraph 42).
The phrase "in a majority" should also be interpreted in the light of the aim pursued by Article 11. Being allowed to have local or autonomous authorities represents the most consummate fulfilment of the demands of concentrated minorities within unitary States; a federal state may in fact go further in this field (see on this point the Venice Commission Report on the Protection of Minorities in Federal and Regional States)[7].
Moreover, the phrase should be understood not as denoting a mere numerical relationship but as implying that the minority has settled and is concentrated in the region concerned.
c. "... have the right to have at their disposal appropriate local or autonomous authorities or to have a special status ..."
Article 11 foresees the right to enjoy a certain autonomy by three means (local authorities, autonomous authorities and special status), which it does not define.
It can be stated in general terms that the right guaranteed in Article 11 cannot be interpreted as requiring measures that would fundamentally affect the structure of the State, eventhough a federal or regional structure allows minorities residing in the territory of the State to be accorded a degree of autonomy through the grant of a territorial basis of their own where they can pursue a policy via autonomous institutions. Nor does Article 11 impose a specific model of local autonomy institutions: the variety of models in Europe is such that none can be advocated as the one to be adopted by all States.
The State will therefore have a wide choice of options for discharging its obligations under Article 11.
� Appropriate local or autonomous administrations
Some important indications of the substance of the right to enjoy a certain autonomy can be obtained from the European Charter of Local Self-Government. Under this instrument, local authorities must be capable "of regulating and managing a substantial share of public affairs under their own responsibility and in the interest of the local population" (Article 3.1 of the Charter). Moreover, the Charter provides a set of elements concerning the implications of this "right to regulate and manage a substantial share of public affairs". Thus:
� this right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct equal universal suffrage, and which may possess executive organs responsible to them (Article 3.2 of the Charter);
� local authorities must be able to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority, since public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen (Articles 4.2 and 4.3 of the Charter);
� local authorities shall be able to determine their own internal administrative structures in order to adapt them to local needs and ensure effective management (Article 6 of the Charter);
� any administrative supervision of local authorities may only be exercised according to such procedures and in such cases as are provided for by the constitution or by statute; this supervision shall aim only at ensuring compliance with the law and with constitutional principles; it may be exercised with regard to expediency by higher-level authorities in respect of tasks the execution of which is delegated to local authorities (Article 8 of the Charter);
� local authorities shall have the right of recourse to a judicial remedy in order to secure free exercise of their powers and respect for such principles of local self-government, as are enshrined in the constitution or domestic legislation (Article 11 of the Charter).
These are simply guidelines which should inspire the practice of States when discharging their obligations under Article 11; they are not actual requirements deriving from Article 11.
� Special status
The meaning of the term "special status" is, admittedly, somewhat vague; but it does reflect the desire of the authors of Article 11 to allow States to depart from the traditional patterns of local government. In this respect the State remains free to determine what will be the scope of this special status. In the absence of any common practice capable of specifying the minimum requirements of such status, the scope of the right to have a special status should be determined by reference to the aims of Article 11 in general and the presumed will of the Council of Europe member States. Some examples can be found in the special statuses existing in Italy or Spain, without this precluding the solution of personal autonomy.
In the Commission's opinion, any "special status" should be founded on the will to enable persons belonging to a minority to participate effectively in decision-making concerning the regions in which they live or in matters affecting them. The institutions which make up this special status should be capable of representing the minorities and ensuring that persons belonging to the minorities:
� will be consulted whenever the Parties are contemplating legislative or administrative measures liable to affect them directly;
� will be involved in the preparation, evaluation and implementation of national and regional development plans and programmes liable to affect them directly;
� will effectively participate in the decision-making process and elected bodies at both national and local level, particularly in the fields of culture, education, religion, information and social affairs.
These are only minimum requirements. A special status can, of course, go much further by endowing a region where a minority is in the majority with legislative and executive power of its own in respect of regional affairs, thus introducing a system akin to partial federalisation of the State.
d. "... matching the specific historical and territorial situation ..."
The phrase "matching the specific historical and territorial situation" serves a twofold function:
First, it demands from States to take into account the traditions of the minorities concerned and their specific needs. In this respect it supplements the adjective "appropriate" in the same provision.
Secondly, it introduces the possibility of modulating the application of this right between one State and another and even between one minority and another within the same State. The application of Article 11 will not, therefore, be uniform but will be adapted to allow for the great diversity of situations of national minorities. The case-law of the institutions of the European Convention on Human Rights has succeeded in striking a balance between the State's discretionary power to evaluate the individual circumstances of each specific case and the European monitoring required by the Convention, and it is reasonable to suppose that a similar balance will also be maintained within the framework of Article 11.
e. "... in accordance with the domestic legislation of the State ..."
First of all, the fact that the local or autonomous authorities and the special status which minorities should have must be in accordance with the national legislation of the State sets the limits of this right. It is the State that prescribes the legal framework within which the right may be exercised, and international protection will be accorded only as long as the right is exercised legally.
At the same time, however, the above phrase contains a guarantee that a legal framework will exist for the exercise of the right.
Moreover, according to the established case-law of the institutions of the European Convention on Human Rights, the discretionary power which the State has in laying down the legal system concerned is limited by the fact that the system must itself be compatible with the Convention and its Protocols. In particular, it must not have the effect of robbing Article 11 of its substance.
4. Article 11 of Recommendation 1201 (1993) in conjunction with Articles 13 and 14 of the same Recommendation
Articles 13 and 14 read as follows:
Article 13
"The exercise of the rights of 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."
Article 14
"The exercise of the rights and freedoms listed in this protocol are not meant to restrict the duties and responsibilities of the citizens of the State. However, this exercise may only 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."
The possibility of Article 13 being applied in combination with Article 11 of Recommendation 1201 cannot be precluded.
As for Article 14, it allows the exercise of the rights guaranteed, including the one referred to in Article 11, to be restricted by measures prescribed by law which are necessary in a democratic society for aims recognised as legitimate by the Convention, among which appear national security and territorial integrity. The case-law of the European Convention on Human Rights concerning the interpretation of paragraphs 2 of Articles 8-11, in particular the principle of proportionality, comes into the reckoning here.
Appendix V
Opinion of the Venice Commission on the provisions of the European Charterfor Regional or Minority Languages which should be accepted by all Contracting States
_____
Introduction
The European Commission for Democracy through Law (Venice Commission) has been requested by the Parliamentary Assembly's Committee on Legal Affairs and Human Rights to study the question 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" (cf. Assembly Order No. 513 (1996)).
At its 24th plenary session (Venice, 8-9 September 1995) the Commission decided to instruct its Sub-Commission on the Protection of Minorities to study this question on the basis of a preliminary report prepared by Mr Maas Geesteranus. The sub-commission held two meetings on this question, on 23 November 1995 and 29 February 1996.
This opinion was prepared by the sub-commission on the basis of a report by Mr Maas Geesteranus and contributions from Mr Malinverni and Mr Matscher. It was adopted by the Commission at its 26th plenary session (Venice, 1-2 March 1996).
1. The concern to guarantee the hard core of minority language rights in Europe
The Venice Commission shares the concern expressed in the Bindig report (Doc. 7442 of 20 December 1995) on the rights of national minorities, a concern which has given rise to the Parliamentary Assembly's proposal to study the possibility of identifying a hard core of obligations to which all States Party to the European Charter for Regional or Minority Languages should subscribe. Consequently, this stresses that the knowledge and possibility of employing the mother tongue constitutes the essence of cultural identity of a minority, ie with the loss of its language, a minority may well lose its identity and eventually disappear.
The Commission agrees with the Assembly rapporteur that there is an unquestionable lacuna in the European Convention on Human Rights with regard to the special protection of the rights of linguistic minorities. Although Article 14 of the Convention together with Article 2 of the Additional Protocol does allow for some degree of protection in this area (cf. judgment of the European Court of Human Rights in the Belgian language case, judgment on the merits on 27 June 1968, Series A No. 6), the Convention does not explicitly guarantee any linguistic freedom; moreover, the case law of the bodies of the Convention does not appear to specify that such rights might derive from the right to freedom of expression (Article 10; see however the "Sadik Ahmet v. Greece" case, currently pending before the Court), freedom of thought and conscience (Article 9) or Article 3 of Protocol No. 1 (cf. the "Mathieu-Mohin and Clerfayt v. Belgium" case of 2 March 1987, Series A No. 113).
The Venice Commission has already defined, in its proposal for a European Convention for the Protection of Minorities, the principles which must be applied and the rights which must be guaranteed in the area of protection of linguistic minorities. According to Articles 7, 8 and 9 of the proposal, persons belonging to a minority shall have the right to use their language freely, in public and in private; whenever a minority reaches a substantial percentage of the population of a region or of the total population, its members shall have the right, as far as possible, to speak and write their own language to political, administrative and judicial authorities; moreover, in State schools, obligatory schooling shall include, for pupils belonging to that minority, study of their mother tongue. The Commission has recognised that the guarantee of teaching of the mother tongue is the keystone of safeguarding and promoting the language of a minority group.
Several provisions of the framework Convention for the Protection of National Minorities (Articles 9.1, 10-14 and 17) and of the draft of the Additional Protocol to the European Convention on Human Rights contained in Parliamentary Assembly Recommendation 1255 (Article 8.1)[8] are along the same lines.
In the view of the Venice Commission, the question raised is not whether linguistic rights must benefit from a collective guarantee at European level (it has no doubt about this) but whether the creation of a hard core on the basis of the provisions of the European Charter for Regional or Minority Languages is an appropriate way to ensure those rights.
2. The purpose of the Charter
The European Charter for Regional or Minority Languages is intended to protect and promote regional or minority languages as an endangered component of the European cultural heritage. For that reason, emphasis is placed upon the cultural dimension and the use of these languages in several aspects of life, such as education (Article 8), the courts (Article 9), relations with the administrative authorities (Article 10), the media (Article 11), cultural activities and facilities (Article 12), economic and social life (Article 13) and transfrontier exchanges (Article 14).
The Charter does not seek to create individual or collective rights for persons who use regional or minority languages in a State. It attempts to safeguard "the value of interculturalism and multilingualism" as an "important contribution to the building of a Europe based on the principles of democracy and cultural diversity", but always "within the framework of national sovereignty and territorial integrity" (cf. the preamble to the Charter and paragraph 10 ff of the explanatory report). Moreover, the definition of regional or minority languages as set forth in the Charter in Article 1.a.i only covers languages which are traditionally used within the territory of a State by its nationals and are different from the official language(s) of the State, and does not include either the languages of migrants or dialects (Article 1.a.ii).
Notwithstanding the stated objective of the authors in the explanatory report (para. 10.f), the Charter is quite often considered both within the Council of Europe and elsewhere as a basic instrument for the protection of minorities[9].
This should come as no surprise. Not only does the scope of the various instruments for the protection of minorities already adopted, proposed or in the course of drafting cover very similar areas, but the provisions of these instruments also include the problem of minority languages.
Thus, for example, part of the principles set out in Part II, Article 7, of the Charter, notably Article 7.1.d ("the facilitation and/or encouragement of the use of regional or minority languages, in speech and writing, in public and private life") is found in the following documents:
- Article 10.1 of the framework Convention for the Protection of National Minorities ("The Parties undertake to recognise that every person belonging to a national minority has the right to use freely and without interference his or her minority language, in private and in public, orally and in writing");
- Article 7.1 of Parliamentary Assembly Recommendation 1201 ["Every person belonging to a national minority shall have the right freely to use his/her mother tongue in private and in public, both orally and in writing", see also Recommendation 1255 (1995)];
- Article 7 of the Venice Commission's proposal for a European Convention for the Protection of Minorities ("any person belonging to a linguistic minority shall have the right to use his language freely, in public as well as in private");
- Article 2.1 of the United Nations Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities ("persons belonging to minorities have the right ... to use their own language, in private and in public, freely and without interference or any form of discrimination");
- Article 27 of the International Covenant on Civil and Political Rights ("in those States in which... linguistic minorities exist, persons belonging to such minorities shall not be denied the right ... to use their own language").
Focusing first on languages and only then on traditional linguistic minorities in the European States, the Charter advocates a number of positive measures in favour of minority languages on the part of the Contracting States.
However, given the need to bear in mind the complexity and diversity of the situation of regional and minority languages in Europe, the Charter has provided itself with a special structure enabling it to cope with the problem of the specific aspects of each situation by modifying its requirements accordingly.
3. Structure of the Charter: the "� la carte" system
3.1 The European Charter for Regional or Minority Languages offers States two levels of commitment.
Part II, Article 7, of the Charter defines the objectives and principles pursued, which constitute a "common core", ie obligations which must be accepted by all States Parties. No reservations may be made to Article 7.1, in conformity with Article 21.
Part III contains a choice of specific commitments for implementing the principles set forth in Part II. In accordance with Article 2, paragraph 2, of the Charter, States may freely specify the languages to which they agree to have Part III apply, and for each language chosen they may indicate which provisions of Part III shall apply. The same provision states that "each Party undertakes to apply a minimum of 35 paragraphs or sub-paragraphs chosen from among the provisions of Part III of the Charter".
3.2 This selective system has obvious advantages. For regional or minority languages, as defined in Article 1, paragraph a, of the Charter, the State agrees to a dual commitment whose mechanism is set out in Articles 2 and 3 of the Charter.
The State Party to the convention "undertakes to apply the provisions of Part II to all the regional or minority languages spoken within its territory and which comply with the definition in Article 1" (Article 2.1); the State then specifies at the time of ratification to which language(s) it undertakes to apply 35 paragraphs or sub-paragraphs (at a minimum) chosen from among the provisions of Part III of the Charter (Article 3.1).
The State's freedom of choice is only relative, because apart from the numerical provisions of Article 2, paragraph 2, in making its choice the State must also take into consideration the "needs and wishes expressed by the groups which use such languages" (Article 7.4). Thus, its choice cannot be arbitrary, but will be dictated by the desire to adopt for each regional or minority language the wording which best fits the characteristics and state of development of that language (cf. paragraph 46 of the explanatory report).
3.3 This particular structure of the Charter and its logic of being adaptable to the extreme variety of situations of regional and minority languages is in marked contrast to the concept of a list of uniform obligations which must be accepted by all the Contracting States of the Charter.
But it is important to emphasise that the idea of a certain hard core is by no means alien to the Charter. A hard core already exists in the Charter, in Part II, Article 7, and states "that each Party shall undertake to apply (certain principles) to all regional or minority languages used in its territory", as defined by the Charter.
4. Article 7 as the "hard core" of the Charter
4.1 Article 7 enumerates a number of principles and objectives which constitute the necessary framework for the preservation and promotion of regional and minority languages.
The Article does not contain specific rules, but seeks to define the foundations upon which "the Parties shall base their policies, legislation and practice" (Article 7.1) for "all the regional or minority languages spoken within (a) territory" (Article 2.1).
These objectives and principles are enumerated in the explanatory report under six main headings (para. 58 f. of the report):
- recognition of the existence and of the legitimacy of the use of regional or minority languages (Article 7, para. 1.a);
- respect for the geographical area of each regional or minority languages (Article 7, para. 1.b);
- need for positive action for the benefit of regional or minority languages (Article 7, paragraphs 1.c and d[10]);
- guarantee of the teaching and study of regional or minority languages (Article 7, paragraph 1.f and h);
- facilities afforded to non-speakers of regional or minority languages to acquire a knowledge of them (Article 7, paragraph 1.g);
- relations between groups speaking a regional or minority language.
4.2 Furthermore, Article 7, paragraph 2, the scope of which extends to the entire national territory, contains a non-discrimination clause which amounts to recognition of the admissibility of positive discrimination:
"Parties undertake to eliminate, if they have not yet done so, any unjustified distinction, exclusion, restriction or preference relating to the use of a regional or minority language and intended to discourage or endanger the maintenance or development of it".
However, "the adoption of special measures in favour of regional or minority languages (...) is not considered to be an act of discrimination against the users of more widely used languages". This positive discrimination follows logically from the very objective of the Charter, which is to stop the decline of regional and minority languages and, where possible, promote their use in order to contribute to "the maintenance and development of Europe's cultural wealth and traditions" (cf. Preamble to the Charter).
5. The function of Part III of the Charter
5.1 The question has been raised whether a "hard core" composed of certain provisions of Part III of the Charter is conceivable with a view to strengthening the protection of minority languages.
Pursuant to the provisions of Article 2, paragraph 2, of the Charter, in respect of "each language specified at the time of ratification, acceptance or approval ... each Party undertakes to apply a minimum of 35 paragraphs or sub-paragraphs chosen from among the provisions of Part III". It is also stated that "any Party may, at any subsequent time, notify the Secretary General that it accepts the obligations arising out of the provisions of any other paragraph of the Charter not already specified in its instrument of ratification ..." or that it will apply Part III of the Charter to other regional or minority languages used on its territory (Article 3.2). On the other hand, a State may not deny a regional or minority language the benefit of the provisions to which it has subscribed (unless it denounces the entire Charter, within the meaning of Article 22).
5.2 Given the extreme diversity of situations of minority languages in Europe, the Commission considers that the too rigid wording of the provisions of Part III makes none of them very amenable to being accepted by all Contracting States for all regional or minority languages without exception.
5.3 Moreover, the Commission is duty-bound to stress the importance of Part III of the Charter:
It transforms into specific commitments the general principles defined in Part II. Once a Contracting State accepts the provisions of Part III, it assumes international responsibility for any failure to comply with the obligations into which it has itself entered, even though those obligations vary from one Contracting Party to another and even from one regional or minority language to another. Furthermore, it undertakes to accept monitoring as set out under Part IV of the Charter.
5.4 The Venice Commission notes that, pursuant to the explanatory report (paragraphs 42, 43 and 49), States are not compelled to accept both Parts II and III of the Charter, and that it remains possible in principle for a State to ratify the convention without specifying a language for the purposes of the application of Part III (paragraph 49 of the explanatory report). In that regard, the Commission emphasises that the decision of a State not to extend to a language the benefit of the provisions of Part III must be based on reasons which lie within its own discretion but that such reasons must be compatible with the spirit, objectives and principles of the Charter.
5.5 In the view of the Commission, the "hard core" constituted by Part II of the Charter and the protection afforded to a language or languages by virtue of the provisions of Part III give the European Charter for Regional or Minority Languages a special character, making it suited, in principle, to the situation of historical regional and minority languages in Europe.
6. Conclusion
In the opinion of the Commission,
6.1 The concept of a hard core as envisaged by the Parliamentary Assembly is alien to the spirit and working system of the European Charter for Regional or Minority Languages;
6.2 The Charter already has a "hard core" of principles (Part II) which guarantees the effectiveness of the protection that it affords;
6.3 In any event, the provisions of Part III, given their wording and the detailed fashion in which they regulate the subject-matter, are hardly suitable for the creation of a hard core likely to be accepted by all Contracting States;
6.4 Moreover, a hard core of linguistic rights may be derived from the obligations provided for in the framework convention, notably in Articles 5.1, 6, 9.1, 10-14 and 17. The effectiveness of the protection that the latter offers will depend largely upon the implementation of the mechanism to ensure compliance with its provisions.
Reporting committee: Committee on Legal Affairs and Human Rights
Budgetary implications for the Assembly: none
Reference to committee: Order No. 513 (1996)
Draft recommendation adopted unanimously by the committee on 20 May 1996
Members of the committee: Mr Hag�rd (Chairperson), Mr Schwimmer, Mrs Err (Vice-Chairpersons), Mrs Aguiar, MM. Ak�ali, Alexander, Arbnori, Bartumeu Cassany, Berti, Bindig, Bobelis, Bu_ar, Cimoszewicz, Cioni, Clerfayt, Columberg, Deasy, Dees, Deniau, Fenech, Filimonov, Foga�, Frunda, Fuhrmann, Fydorov, Galanos, Mrs Gelderblom-Lankhout, MM. Grimsson, Guenov, G�rel, Mrs Holand, MM. Holovatiy, Hunault, Jansson, Jaskiernia, Jeambrun, Karas, Kelam, Kirkhill, Koschyk, Kovalev, La Russa, Loutfi, Maginas, Magnusson, Martins, M�sz�ros, Moeller, N�meth, Pantelejevs, Poppe, Rathbone, Rhinow, Robles Fraga, Rodeghiero, Rokofyllos, Severin, Sol� Tura, Solonari, Stretovych, Tahiri, 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, Ms Chatzivassiliou and Ms Kleinsorge.
[1] By the Committee on Legal Affairs and Human Rights.
[2] See Opinions 174 (1993) (Czech Republic), para. 8, 175 (1993) (Slovakia), paras. 8 and 9, 176 (1993) (Romania), para. 5, 183 (1995) (Latvia), para. 10.e, 188 (1995) (Moldova), para. 11.g, 189 (1995) (Albania), paras. 16.iv, 190 (1995) (Ukraine), para. 11.xiii and 12.v, 191 (1995) (former Yugoslav Republic of Macedonia), paras. 9.vii and 10.iv, 193 (1996) (Russia), para. 10.iv.
[3] Cand. jur., University of Iceland 1975; M.C.J., New York University School of Law 1976; and S.J.D., Harvard Law School 1982. The author worked in the UN Centre for Human Rights 1985-95; he is now Professor and Co-Director of the Raoul Wallenberg Institute for Human Rights and Humanitarian Law at the University of Lund, Sweden.
[4] In the same context the U.N. Human Rights Committee found that no complaint concerning self-determination can be brought under the Optional Protocol to the United Nations Covenant on Human Rights (AB and others against Italy, Decision of 2 November 1990, concerning the South Tyrol). General comment No. (23) 50, adopted by the Human Rights Committee on 26 April 1994 concerning Article 27 of the Covenant, is silent on this subject.
[5] Introduction to the Draft Additional Protocol to the ECHR on the Rights of Minorities, Revue universelle des droits de l'homme, 1993, pages 184 et seq.
[6] See Venice Commission, Conspectus of replies to the questionnaire on the rights of minorities, "The Protection of Minorities", Collected Texts of the European Commission for Democracy through Law, Council of Europe, "Science and Technique of Democracy" Series No. 9, 1994, pp. 49 et seq.
[7] "The Protection of Minorities, Collected Texts of the European Commission of Democracy through Law, Council of Europe, "Science and Technique of Democracy" series, No. 9, 1994, pp. 326 et seq.).
[8] Cf. also Article 27 of the International Covenant on Civil and Political Rights, Articles 4.2 and 4.3 of the Declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities adopted by the United Nations General Assembly on 18 December 1992 and Article 5.c of the Convention against Discrimination in Education of 14 December 1960.
[9] Cf. Parliamentary Assembly, Bindig report on the rights of national minorities, Doc. 7442; Recommendation 1285 (1996); Order No. 513 (1996); A Verdoodt, the right to use a language of one's choice, written communication presented at the 8th Colloquy on the ECHR (September 1995); P Thornberry and M A Martin Estebanez, The Council of Europe and Minorities, publ. Council of Europe, September 1994; P Kovacs "La protection des langues des minorit�s ou la nouvelle approche de la protection des minorit�s?" in: Revue g�n�rale de droit international public, Volume 97/1993/2; P. Blair "The Protection of Regional or Minority Languages in Europe", in: Publications de l'Institut du F�d�ralisme Fribourg Switzerland; EUROREGIONS, volume 5, Journal 1.
[10] Sub-paragraph (d) endorses an activity in favour of the free use of the minority language, both orally and in writing, both in private and in public. This sub-paragraph adopts the principle laid down in the framework Convention for the Protection of National Minorities (Articles 9, 10.1 and 10.2), which is likewise set forth in Article 7 of the proposal for a European Convention for the Protection of Minorities, drafted by the Venice Commission, and Article 2.1 of the United Nations Declaration on the Rights of Persons belonging to Minorities.