Protection of national minorities
Opinion
Doc. 7922
23 September 1997
(Rapporteur: Mr Rudolf Bindig, Germany, Socialist Group)
I. Introduction
1. The first Summit of the Council of Europe took several important decisions in the field of minorities. These decisions were even more important since for many years the rights of minorities had been considered as a Pandora's box which - it was felt - might better be left unopened. In the Vienna Declaration, the Heads of State and Government instructed the Committee of Ministers to, among other things:
"- 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;
- 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."
II. The Framework Convention for the Protection of National Minorities
2. The Committee of Ministers acquitted itself rapidly of the assignment given to it by the Summit. In fact, with the help of an intergovernmental expert committee, it elaborated and finalised the Convention which it adopted in its final form at the ministerial meeting of 10 November 1994. It was opened for signature on 1 February 1995 and on that date signed by not less than 21 member States. The Convention, however, requires 12 ratifications by member States, a number which is much higher than the number of ratifications needed for any other Council of Europe instrument. Ten member States have now ratified. I am pleased to note that, shortly before I drafted this opinion, Germany deposited its act of ratification, while Denmark ratified on the first day of the session. In Finland and Liechtenstein the ratification bill passed parliament and we may therefore expect that they too will soon deposit their act of ratification. Thus the Convention could enter into force early next year.
3. The Assembly's observations on the Framework Convention can be found in Recommendations 1255 (1995), 1285 (1996) and 1300 (1996).
4. Since the Assembly expressed reservations in these Recommendations as to the content and legal nature of the Framework Convention, it attaches particular importance to the way it is to be implemented. In paragraph 11 of Recommendation 1300 (1996) the Assembly expressed the view that "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."
In fact, Article 26 of the Framework Convention provides that:
"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."
5. In Recommendation 1300 (1996) the Assembly recommended that the Committee of Ministers make sure that the advisory committee to be set up is as independent, effective and transparent as possible by applying the following principles:
"i. there should be an advisory committee composed of twelve to twenty 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 determine its own standing orders and detailed method of conducting its business.
vi. it should draw its information from a wide range of sources and act on its own initiative.
vii. it should have the possibility to enter into a dialogue with the government of the Contracting Party concerned as well as 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, which, in evaluating the adequacy of the measures taken by the Party concerned, should in normal circumstances convey it directly, without comment, to them. In exceptional cases, where the advisory committee has drawn the attention of the Committee of Ministers to a breach of the convention, a Committee of Ministers' discussion 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. At the same time the reports will also be sent to the Parliamentary Assembly for opinion.
xi. The Committee of Ministers is invited to provide the necessary financial and human resources for the advisory committee."
6. The Committee of Ministers instructed the Ad Hoc Committee on the Implementation Mechanism of the Framework Convention (CAHMEC) to propose rules on the membership of the advisory committee, its procedure for election and appointment and the procedure to be followed in performing its monitoring functions. As the Assembly's Rapporteur I have closely followed the work of this committee of governmental experts. It held its last meeting on 2-5 September 1997 and then submitted its final activity report containing a draft resolution with proposed rules of the Committee of Ministers on the monitoring arrangements under Articles 24-36 of the Framework Convention.
7. Subsequently, on 18 September, the Committee of Ministers adopted Resolution (97) 10 following the proposals of the CAHMEC. This Resolution appears in Appendix I to the present document.
8. At the meeting of the Committee on Legal Affairs on 8-9 September 1997 in Brussels I already gave the main lines of the CAHMEC's proposals which were then discussed by the Committee at length. In fact, the Committee was largely satisfied with the results, but expressed serious concern on two points on which it was felt the Assembly had not been given satisfaction.
9. The first point on which the Committee felt that the Assembly had not had satisfaction was the procedure for the appointment or the election of the advisory committee. The Assembly had proposed that this should take place on the same lines as the election of the members of the European Commission of Human Rights or the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The new Resolution unfortunately contains no such provisions and the nomination procedure will therefore be entirely in the hands of the Committee of Ministers. When I attended the meeting of the CAHMEC in July I raised this point and stressed the importance which the Assembly attaches to playing a role in the appointment of the advisory committee. I was told, however, that the advisory committee, unlike the bodies mentioned above, would be a subordinate body to the Committee of Ministers and that it would therefore be illogical if the Assembly were to take part in the appointment procedure of its members.
10. The Committee on Legal Affairs and Human Rights agreed that this was not satisfactory and that the matter should be raised with the Committee of Ministers.
11. The second point on which the Committee on Legal Affairs and Human Rights thought the Assembly had not been given satisfaction was the way information would be made available to the advisory committee. In accordance with the Resolution of the Committee of Ministers the advisory committee shall first of all consider the State reports which the Committee of Ministers will transmit to it. Subsequently the advisory committee may request additional information from the contracting Party whose report is under consideration and it may receive information from sources other than State reports. I think we can agree with all this, but the provision that "unless otherwise directed by the Committee of Ministers, the advisory committee may invite information from other sources after notifying the Committee of Ministers of its intention to do so" does seem a great potential danger to the freedom of action of the advisory committee.
12. The meetings of the advisory committee shall be held in closed session. The advisory committee may invite representatives of the government whose report is being considered, but no mention is made about its right to invite others, whether they are experts or representatives of minorities, to attend its meetings. In addition, the advisory committee must obtain a special mandate from the Committee of Ministers if it wishes to hold meetings for the purpose of seeking information from other sources.
13. Although it is, of course, normally in favour of rapid action, the Committee on Legal Affairs and Human Rights regrets the speed with which the Committee of Ministers has adopted its Resolution - somewhat in contradiction with its own rules which provide for comfortable periods of time to be given to member governments before discussions in the Committee of Ministers may be held and decisions taken. As long as the Framework Convention is not in force there is no reason to hurry. One may also argue that this quick decision is contrary to the wording of the Framework Convention itself which provides, in its article 26 � 2, that "The composition of this advisory Committee and its procedure shall be determined by the Committee of Ministers within a period of one year following [my underlining] the entry into force of this framework Convention". We understand that the Committee of Ministers wanted to arrive at tangible results before the Summit but, in this case, it would have been better if it had taken some more time and given the Assembly an opportunity to express itself.
14. At the end of its discussions on these matters the Committee on Legal Affairs and Human Rights, meeting on 8 and 9 September 1997, decided to suggest to the Bureau of the Assembly, through its President, Mrs Fischer, that this question be considered at the next meeting of the Joint Committee to be held during the September part-session in Strasbourg.
15. The Committee also instructed me to prepare an amendment to the draft recommendation included in Doc 7899.
III. A draft protocol to the European Convention on Human Rights in the cultural field by provisions guaranteeing individual rights, in particular for persons belonging to national minorities
16. It may be recalled that the Assembly, in its Recommendation 1201 (1993) had proposed to the Committee of Ministers to draw up a protocol to the Human Rights Convention on the rights of minorities. In fact, the Assembly had appended to its Recommendation a draft for such a protocol which included, among other things, a definition of national minorities. This draft protocol is frequently being used by the Assembly in its monitoring procedures and became a very important reference text which was included in several international treaties (such as those between Hungary and Slovakia, between Hungary and Romania and between Romania and Ukraine)
17. In its Recommendations 1231 (1994) and 1285 (1996) the Assembly deeply regretted that the first Council of Europe's Summit did not follow the Assembly's proposal for an additional protocol on the rights of national minorities. It felt, however, that if a "maximalist" approach were to be taken to the new protocol the Assembly might be satisfied since many of the rights of minorities are either already covered by the Convention itself or may be considered as "cultural" rights.
18. These rights should be protected in a protocol to the Human Rights Convention. This seems to be the only way they could be effectively protected by an independent and impartial body at European level. Thus an additional protocol to the Human Rights Convention would be an essential complement to the European Charter for Regional or Minority Languages and the Framework Convention. The Assembly has consistently stressed this in the Recommendations mentioned above and the Committee on Legal Affairs and Human Rights believes that this is still the Assembly's point of view.
19. Subsequent to the decisions taken by the Heads of State and Government at the first Summit, the Committee of Ministers instructed a special ad hoc committee (CAHMIN) to study the feasibility of such a protocol. Unfortunately, it appeared that within this ad hoc committee agreement was only reached on a minimum list of rights to be included in the protocol and the Committee of Ministers, in January 1996, decided to "suspend" this activity. Understandably the Assembly was very disappointed with this decision and has asked the Committee of Ministers, on several occasions, to resume its work. We hope that it will do so soon and in this respect the words "clearly there is no shortage of international political and legal instruments for the protection of minorities" in paragraph 8 of the draft recommendation included in Doc 7899 needs amendment. If it were to remain as it stands it would make a mockery of everything the Assembly has done and recommended in the field of minorities in the last five years.
IV. Conclusions
20. In conclusion, the Committee on Legal Affairs and Human Rights proposes to support the draft recommendation included in Doc 7899, subject to the following amendments:
Amendment No 1
Add a new paragraph after paragraph 4, worded as followed:
"In this respect the Assembly greatly regrets that the Committee of Ministers did not follow the proposals of the Assembly included in Recommendations 1285 and 1300 (1996) when laying down the rules for the election of the advisory committee of the Framework Convention for the Protection of National Minorities and on the way it may seek and obtain information, and calls upon the Committee of Ministers to reconsider its decision."
Explanatory note:
The Assembly, in the recommendations listed above, had proposed that the election of the advisory committee take place in the same way 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 (CPT) where the Assembly plays an important role. Unfortunately this example has not been followed for the advisory committee and the Assembly's proposals were ignored. Similarly the Committee of Ministers, in its Resolution (97) 10, did not follow the Assembly's proposals in favour of full autonomy to be given to the advisory committee when seeking information on minorities.
Amendment No 2
Replace the first sentence in paragraph 8 of the draft recommendation by the following sentence:
"There is still insufficient political will to accept and implement the international political and legal instruments for the protection of minorities".
Explanatory note:
The Council of Europe has adopted a European Charter on Regional or Minority Languages and a Framework Convention for the Protection of National Minorities. The Assembly has consistently expressed the view that these two important conventions should be completed with a protocol to the Human Rights Convention. Affirming that there is "no shortage of international political and legal instruments" would run counter to the consistent policy which the Assembly has followed for nearly five years, starting with Recommendation 1201 (1993).
Amendment No 3
Add a new sub-paragraph after paragraph 9.ii, worded as follows:
"Resume its work on a draft protocol to the European Convention on Human Rights in the cultural field by provisions guaranteeing individual rights, in particular for persons belonging to national minorities, in accordance with the decision taken by the Heads of State and of Government at the First Council of Europe Summit."
Explanatory note:
The Assembly, since the adoption of Recommendation 1201 (1993), has, on every possible occasion, insisted on the importance of an additional protocol. The proposal should be included in the draft recommendation in order to show that the Assembly still holds this view.
Amendment No 4
In paragraph 9.i., after "call for further", add the words "signature and".
The second Summit of the Council of Europe will take place on 10-11 October 1997. We do not yet know what it will discuss or what decisions it will take. The Committee on Legal Affairs and Human Rights believes, however, that it would be useful for the Parliamentary Assembly to make a full appraisal of the situation of the protection of the rights of national minorities in the Council of Europe after the Summit and intends to submit a further report early in 1998 in accordance with Order No. 513 (1996).
APPENDIX
RESOLUTION (97) 10
Rules adopted by the Committee of ministers on the monitoring arrangements under Articles 24 to 26 of the framework Convention for the Protection of National Minorities
(Adopted by the Committee of Ministers on 17 September 1997 at the 601st meeting of the Ministers' Deputies)
I. The Advisory Committee provided for by Article 26 of the framework Convention for the Protection of National Minorities: Composition, Election and Appointment
A. Membership of the Advisory Committee
1. Members
1. Members of the Advisory Committee shall be appointed in accordance with these rules. They shall sit either as ordinary or additional members.
2. The number of ordinary members of the Advisory Committee shall be a minimum of twelve and a maximum of eighteen. This shall not prohibit the Advisory Committee from commencing its work in accordance with Rule 28.*
3. Members of the Advisory Committee may not be substituted.
4. There shall not be more than one member in respect of any Party.
Qualifications and capacity of the members
5. The members of the Advisory Committee shall have recognised expertise in the field of the protection of national minorities.
6. The members of the Advisory Committee shall serve in their individual capacity, shall be independent and impartial, and shall be available to serve the Committee effectively.
B. PROCEDURE FOR ELECTION AND APPOINTMENT
1. General
7. The Committee of Ministers shall elect experts to the List of Experts Eligible to Serve on the Advisory Committee (hereafter referred to as the List) and appoint ordinary and additional members in accordance with the following rules.
2. Election of experts to the List
8. Each Party may submit to the Secretary General the names and the curricula vitae, in one of the official languages of the Council of Europe, of at least two experts who have the required qualifications and capacity to serve on the Advisory Committee. The Secretary General shall transmit these documents to the Committee of Ministers.
9. The Committee of Ministers shall elect one of these experts to be entered on the List in respect of that Party.
10. Elections shall be held in the chronological order in which the names and curricula vitae submitted by Parties have been received.
11. The same procedure shall apply when entries on the List expire or lose their validity. For the sake of continuity, elections may be held during the six-month period preceding the expiry or loss of validity of the current entry on the List in respect of a Party.
12. The entry on the List shall remain valid until one of the following cases arises:
- the expert concerned requests the Secretary General to delete the entry on the List;
- the Committee of Ministers finds that the expert concerned no longer has the required capacity;
- the expert concerned dies;
- the ordinary membership of the Advisory Committee of the expert concerned expires or ends in accordance with rule 16.**
13. The Secretary General shall act as the depositary of the List.
3. Ordinary members
a. Appointment of ordinary members
14. As long as the number of entries on the List does not exceed eighteen, each expert whose name has been entered on the List shall be appointed as an ordinary member of the Advisory Committee by the Committee of Ministers. Appointments shall follow the chronological order of the elections.
15. Once the number of entries on the List exceeds eighteen, the Committee of Ministers, shall in filling vacant seats in the Advisory Committee, give priority to appointing, in the following order, experts on the List from the Parties in respect of which no ordinary member has been appointed:
a. at two or more consecutive rounds of appointments immediately preceding the current one;
b. at the round of appointments immediately preceding the current one;
c. followed by experts on the List from other Parties in respect of which there iscurrently no ordinary member.
For each of these categories, the rule shall apply that if the number of experts entitled to appointment exceeds the number of vacant seats, ordinary members shall be selected by the Committee of Ministers through the drawing of lots.
. Term of office of ordinary members
16. The term of office of an ordinary member of the Advisory Committee shall be four years. The Committee of Ministers shall specify the exact date on which the term of office begins. No one may be appointed to serve as an ordinary member more than twice. Ordinary membership will end at an earlier date in the following cases:
- at the request of the ordinary member to the Secretary General;
- when the Committee of Ministers finds that an ordinary member no longer has the required capacity;
- when the ordinary member dies.
However, the term of office of half of the number of ordinary members as it stands two years after the commencement of work of the Advisory Committee shall be extended by two years. These members shall be identified at that time by the drawing of lots by the Committee of Ministers. They may also be re-appointed once, in accordance with the preceding paragraph.
17. In order to ensure that, as far as possible, one half of the ordinary membership of the Advisory Committee shall be renewed every two years, the Committee of Ministers may decide, before proceeding to any subsequent appointment, that the term or terms of office of one or more members to be appointed shall be for a period other than four years but not more than six and not less than two years.
18. An ordinary member appointed to fill a casual vacancy shall hold the seat for the remainder of the predecessor's term. Casual vacancies will be filled by experts entered onto the List in respect of the same Party, unless the Committee of Ministers decides otherwise.
4. Additional members
19. During consideration of a state report from a Party in respect of which there is no ordinary member of the Advisory Committee, the expert who is on the List in respect of that Party shall be invited to sit as an additional member. The additional member shall perform her or his functions in accordance with Rules 33 and 34.
II. The procedure to be followed in performing the monitoring functions
1. Transmission and publicity of state reports
20. State reports shall be transmitted by the Party to the Secretary General who will transmit them to the Committee of Ministers. The state reports shall be made public by the Council of Europe upon receipt by the Secretary General, without prejudice to the right of the State to make the report public at an earlier date.
21. The periodical basis for transmission of state-reports mentioned in Article 25, paragraph 2, of the framework Convention is set at five years, calculated from the date on which the previous report was due.
2. Consideration of state reports by the Advisory Committee
22. The Committee of Ministers shall transmit the state reports to the Advisory Committee.
23. The Advisory Committee shall consider the state reports and shall transmit its opinions to the Committee of Ministers.
3. Consideration of state reports by the Committee of Ministers
24. Following receipt of the opinion of the Advisory Committee, the Committee of Ministers shall consider and adopt its conclusions concerning the adequacy of the measures taken by the Contracting Party concerned to give effect to the principles of the framework Convention. It may also adopt recommendations in respect of the Party concerned, and set a time-limit for the submission of information on their implementation.
4. Publicity
25. The conclusions and recommendations of the Committee of Ministers shall be made public upon adoption.
26. The opinion of the Advisory Committee concerning the report of a Party shall be made public at the same time as the conclusions and recommendations of the Committee of Ministers, unless in a specific case the Committee of Ministers decides otherwise.
27. Comments of the Parties in relation to the opinion of the Advisory Committee shall be made public together with the conclusions and recommendations of the Committee of Ministers and the opinion of the Advisory Committee.
5. Working methods of the Advisory Committee
28. The Advisory Committee shall commence its work once twelve ordinary members have been appointed or at an earlier stage if the Committee of Ministers so decides and in any event not later than one year after the entry into force of the framework Convention***.
29. The Advisory Committee may request additional information from the Party whose report is under consideration.
30. The Advisory Committee may receive information from sources other than state reports.
31. Unless otherwise directed by the Committee of Ministers, the Advisory Committee may invite information from other sources after notifying the Committee of Ministers of its intention to do so.
32. The Advisory Committee may hold meetings with representatives of the government whose report is being considered and shall hold a meeting if the government concerned so requests.
A specific mandate shall be obtained from the Committee of Ministers if the Advisory Committee wishes to hold meetings for the purpose of seeking information from other sources.
These meetings shall be held in closed session.
33. Additional members of the Advisory Committee shall only participate in the work of the Advisory Committee in respect of the report of the Party in respect of which they have been elected to the List.
34. Additional members shall sit in an advisory capacity; they shall not have the right to take part in a possible vote. The same shall apply to ordinary members regarding the report of the Party in respect of which they have been elected to the List.
6. Ad hoc reports
35. The Advisory Committee may invite the Committee of Ministers to request an ad hoc report from a Party.
7. Follow-up
36. The Advisory Committee shall be involved in the monitoring of the follow-up to the conclusions and recommendations on an ad hoc basis, as instructed by the Committee of Ministers.
8. Rules of procedure and periodic reports
37. The Advisory Committee shall draft its rules of procedure which shall be submitted to the Committee of Ministers for approval. The same procedure shall apply to any subsequent modification to the rules of procedure.
38. The Advisory Committee shall periodically inform the Committee of Ministers on the state of its work.
III. Participation in the Committee of Ministers by Parties which are not members of the Council of Europe
39. The Committee of Ministers shall invite a representative from each non-member Party to attend the meetings of the Committee of Ministers whenever it exercises its functions under the framework Convention, without the right to participate in the adoption of decisions.
Reporting committee: Political Affairs Committee
Committee for opinion: Committee on Legal Affairs and Human Rights
Opinion approved by the committee on 23 September 1997
Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge