Doc. 8939

22 janvier 2001

Rights of national minorities

Opinion1

Political Affairs Committee

Rapporteur: Mr Henning Gjellerod, Denmark, SOC

The Political Affairs Committee proposes the following amendments to the draft recommendation contained in the report of the Committee on Legal Affairs and Human Rights:

In paragraph 1, after the words “their communities” insert the following words:

“ is an integral part of the protection of human rights and “.

In paragraph 2, after the word “denial” insert the following words:

“of the existence of minorities and “.

In paragraph 3, replace the words “it is the responsibility of the majority to bring the national minority(ies) to a high level of political maturity and participation to enable persons belonging to these minorities” by the following words:

“ the majority has obligations towards the minority and on the other hand the minority has the responsibility to participate in political and public life of the country they live in and ”.

Insert a new paragraph after paragraph 9:

“The Assembly notes that the Charter of Fundaments Rights of the European Union, as accepted at the Summit meeting in Nice in December 2000, does not tackle the question of minority rights and limits itself to declaring in its Article 22 that “The Union shall respect cultural, religious and linguistic diversity”.

Replace paragraph 10 by the following:

“The Assembly recognises that immigrant populations whose members are citizens of the state in which they reside should benefit from the same rights as other minority groups. Whereas those who still have the nationality of their home countries constitute special categories whose protection can be improved either through specific instruments such as the Council of Europe Convention on the Legal Status of Migrant Workers or the European Social Charter, or in a more effective way by simplifying naturalization procedures which are still very rigid in some member states.”

In paragraph 11 vii, delete the words “and endeavouring to include therein the definition of national minority adopted in the same recommendation”.

Delete paragraph 11 ix.

Paragraph 11 x, after the word “publish” add the following words: “ without delay the opinions by the Advisory Committee on the Framework Convention for the Protection of National Minorities and “.

I.       Recent conflicts and protection of minorities

1.       Present day conflicts are most of the time internal disputes and involve the question of protection of minorities. The most recent examples include the Balkans, Northern Ireland, the Basque and Caucasian regions.

2.       Our Assembly has observed from close distance the events that led to conflicts in the Federal Republic of Yugoslavia and Bosnia and Herzegovina, both of them applicants for Council of Europe membership. In Kosovo, attacks on minorities, notably on Serbs and Roma, as well on Kosovo Albanians, continue. Return back to normal life in these areas is slow as minorities refuse to return until they are guaranteed protection. Intimidation force people to leave their homes; fear to react has created a permissive environment for violence against minorities. Protection by international community has been inadequate; the United Nations has not been provided with a sufficient number of police, thus forcing the KFOR to perform civilian police functions. Most of Kosovo’s Serb population and many of its other minorities have fled the province or been displaced into mono-ethnic enclaves. So far the international efforts have not been satisfactory in protecting minorities.

3.       It is evident that multi-ethnic states are susceptible to violent escalation of a conflict and to an eventual state breakdown if minorities living in them are not adequately protected. This is true especially at times when a state is going through a transition of power and reforming its institutions. Such situations allow single ethnic groups to dominate policy-making procedures and institutions; at the same time political channels for the articulation of minority interests are either weak or nonexistent. Preventive measures can lead to stability that cannot be achieved through force.

4.       Besides the above, the failure to protect the minorities has serious political consequences. At times they lead to a request for a secession, flourish of extremist parties and political assassinations. Examples of all these three cases can be easily found in our member States.

5.       I should however emphasise the need to find a delicate balance between protecting the rights of minorities and encouraging secession. It does not serve anybody’s purpose to push for splitting up a state into small units inhabited only by one minority group. Members of the Parliamentary Assembly are well aware if the dangerous consequence this might lead to.

II.       Role of the Council of Europe

6.       Protection of minorities constitutes an integral part of the protection of human rights and, consequently, it forms one of the key activities of the Council of Europe. As demonstrated above, protection of national minorities is essential to democratic stability and security. Today the Council of Europe has an impressive list of tools and experience in its possession to improve the situation in our member States.

7.       Entry into force on 1 February 1998 of the Framework Convention for the Protection of National Minorities is a major milestone not only in the activities of the Council of Europe but also in the history of international law. It is the most comprehensive document in the area of protection of minorities and it is the first ever legally binding multilateral instrument devoted to the protection of national minorities.

8.        Like any other legal instrument, the Framework Convention can only be effective and reach the goals it was set up to do if it is properly implemented by its signatories. At this stage it is not well founded to argue for the creation of additional legal instruments. The priority must been placed on more efficient use of the existing ones. In this context I should like to underline the need for all the Council of Europe member states to sign and ratify the Framework Convention. Today the following member States have neither signed nor ratified it: Andorra, Belgium, France and Turkey.

9.       The following member Sates have signed, but not ratified it: Georgia, Greece, Iceland, Latvia, Luxembourg, Netherlands, Poland and Portugal. The urgency to ratify is especially explicit in countries, such as Georgia and Latvia, which either have diverse or large ethnic groups.

10.       The Contracting Parties are to implement the objectives and principles set out by the Convention through national legislation and policies. The objectives and principles are rather broadly worded in the Convention in order to allow for different policies to address minority situations, which vary from country to country. The flexibility as regards implementation of the Convention to suit each particular case can have its setbacks if it is taken too far as it allows the Contracting Parties to escape their obligations and consequently weaken the impact of the Convention.

11.       As foreseen by the Framework Convention, and since its establishment in 1998, the Committee of Ministers evaluates the implementation of the Framework Convention with the assistance of the Advisory Committee. The later carries out fact-finding visits to countries concerned in order to monitor the implementation of the convention. It is encouraging to see that the first country-specific opinions on the implementation by four countries (Denmark, Finland, Hungary, Slovakia) were adopted by the Advisory Committee in September 2000. These opinions have been submitted to the Committee of Ministers, which will adopt conclusions and recommendations concerning the adequacy of the measures taken by the State concerned. In order to ensure transparency and trust in the control mechanism of the Framework Convention, these opinions should be made public without any unnecessary delay.

12.       After this stage careful attention must be paid to the follow-up of these conclusions and recommendation. In the first place the Advisory Committee on the Framework Convention, together with different Council of Europe departments concerned, notably the Secretary General’s Monitoring Unit and the relevant Parliamentary Assembly’s committees, should ensure the follow-up. Furthermore, the Directorate of Programme Co-ordination and its Division on Activities for the Democratic Development and Consolidation of Democratic Stability (ADACS) and the Confidence Building Measures Programme must give priority in their activities for the issues singled out in these country reports. If the follow-up is left without any clear instructions and without making any specific department responsible, the implementation mechanism cannot be considered efficient.

13.       I believe it would be beneficial for the Council of Europe in whole if the Parliamentary Assembly would step-up its co-operation with the Advisory Committee, mainly through exchange of information (documents and exchanges of views) on issues of common concern.

      - Definition of a minority

14.       The Framework Convention for the Protection of National Minorities does not provide a definition of a minority. Consequently, it is legitimate to questions to whom does the Convention apply. Article 3 of the Convention stipulates: “Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such”. In this context, I can only regret that certain Council of Europe member States deny the existence of minorities.

15.       Certain member States have listed or defined the minorities they consider covered by the Framework Convention when they ratified it (Austria, Bulgaria, Denmark, Estonia, Germany, Liechtenstein, Luxembourg, Malta, Russia, Slovenia, Sweden, Switzerland, and “the former Yugoslav Republic of Macedonia”). The declaration made by these member States appears in Appendix I.

16.       The fact that the Framework Convention does not provide a definition of a minority is not necessarily a default. As minorities are extremely diverse (linguistic, religious, culture), it allows the member States the necessary flexibility to apply it to their own situation. Furthermore, the danger is that if a definition is adopted by consensus, it will be according to the lowest common denominator and thus not serve the purpose of the Framework Convention.

b.        European Charter for Regional or Minority Languages

17.       The Council of Europe possesses also the European Charter for Regional or Minority Languages, which came into force on 1 March 1998. Eleven member States have ratified it: Croatia, Denmark, Finland, Germany, Hungary, Liechtenstein, the Netherlands, Norway, Slovenia, Sweden and Switzerland. Clearly, many more ratifications are needed. A committee of independent experts in periodical reports monitors implementation of the Charter.

18.       The Parliamentary Assembly must urge the Council of Europe member States to sign and ratify the Charter. It should also follow its implementation through appropriate channels. At this stage it is premature to call for extending the scope of the Charter to include sign languages used in member states.

19.       Besides these legal instruments, the Council of Europe has a series of well-established activities in the field of protecting the rights of minorities.

20.       It is involved in the Stability Pact for Southeastern Europe and its Working Table I, Task Force on Human Rights and Minorities. This Task Force is of an utmost importance in giving support and strengthen minority rights and mutual respect between communities. It does so through improving ethnic relations, promoting multi-ethnic societies where they exist and by creating a climate of mutual respect and tolerance for each other’s differences; ensuring legal protection based on European standards and encouraging the involvement of civil society in improving inter-ethnic relations and introducing a comprehensive regional strategy for the promotion of the status of the Roma population.

21.       As I already mentioned before, the Directorate of Programme Co-Ordination, together with its Division on Activities for the Development and Consolidation of Democratic Stability and the Confidence Building Measures has several activities in the field. There are also other very relevant Council of Europe programmes, such as the ones carried out by the Roma/Gypsy Activities, the Directorate of Youth and the Venice Commission.

III.       Conclusions

22.       I should underline that the existence of national minorities ought to be foreseen as a positive component of our societies. Although I might have taken a more conflict-oriented approach in the beginning of this Memorandum, I do want to recall the enrichment that the minorities bring to our every-day life. The rights of minorities must be protected not only to reduce ethnic tension and to avoid escalation into a conflict situation, but first and foremost because it forms an integral part of the protection of human rights.

23.       The OSCE has a High Commissioner on National Minorities, whose duty is to prevent conflicts from erupting and to intervene when they do erupt. The Council of Europe seeks to protect the minorities much before there is a conflict and it seeks to do so equally in every member State, old and new. I believe we should continue to do so.

24.       The Council of Europe has a wealth of tools at its disposal to fully protect the rights of minorities. The priority at this stage must be on urging the member States to ratify the existing legal instruments: the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages. The next priority lies in proper implementation of these instruments and the monitoring of that implementation. Where problems are pointed out with a particular country, the monitoring organs together with different Council of Europe departments in their support programmes must efficiently follow them up.

25.       Different sectors of the Council of Europe already deal with minority issues: the sectors under the Framework Convention and the Charter, as well as the Migration and Roma/Gypsies Division, the Secretary General’s Monitoring Unit and the Parliamentary Assembly’s Committees concerned. Necessary steps must be taken to ensure that these different sectors co-operate in an efficient manner and that the other takes findings of one into account. It would be an enormous waste of resources for a small Organisation like ours to duplicate efforts and to miss the connecting link between its own activities.

APPENDIX I

CouncilEurope

List of declarations made with respect to treaty no. 157

FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES

Situation on 17/01/01

 

   Austria :



Declaration contained in the instrument of ratification deposited on 31 March 1998 - Or. Engl.


The Republic of Austria declares that, for itself, the term "national minorities" within the meaning of the Framework Convention for the Protection of National Minorities is understood to designate those groups which come within the scope of application of the Law on Ethnic Groups (Volksgruppengesetz, Federal Law Gazette No. 396/1976) and which live and traditionally have had their home in parts of the territory of the Republic of Austria and which are composed of Austrian citizens with non-German mother tongues and with their own ethnic cultures.
Period covered: 01/07/98 -
The preceding statement concerns Article(s: -

 

   Azerbaijan :



Declaration contained in the instrument of accession deposited on 26 June 2000 - Or. Eng.


The Republic of Azerbaijan, confirming its adherence to the universal values and respecting human rights and fundamental freedoms, declares that the ratification of the Framework Convention for the Protection of National Minorities and implementation of its provisions do not imply any right to engage in any activity violating the territorial integrity and sovereignty, or internal and international security of the Republic of Azerbaijan.
Period covered: 01/10/00 -
The preceding statement concerns Article(s: -

 

   Bulgaria :



Declaration contained in the instrument of ratification deposited on 7 May 1999 - Or. Eng./Bulg.


Confirming its adherence to the values of the Council of Europe and the desire for the integration of Bulgaria into the European structures, committed to the policy of protection of human rights and tolerance to persons belonging to minorities, and their full integration into Bulgarian society, the National Assembly of the Republic of Bulgaria declares that the ratification and implementation of the Framework Convention for the Protection of National Minorities do not imply any right to engage in any activity violating the territorial integrity and sovereignty of the unitary Bulgarian State, its internal and international security.
Period covered: 01/09/99 -
The preceding statement concerns Article(s: -

 

   Denmark :



Declaration contained in a Note Verbale dated 22 September 1997, handed to the Secretary General at the time of deposit of the instrument of ratification, on 22 September 1997 - Or. Engl.


In connection with the deposit of the instrument of ratification by Denmark of the Framework Convention for the Protection of National Minorities, it is hereby declared that the Framework Convention shall apply to the German minority in South Jutland of the Kingdom of Denmark.
Period covered: 01/02/98 -
The preceding statement concerns Article(s: -

 

   Estonia :



Declaration contained in the instrument of ratification, deposited on 6 January 1997 - Or. Est./Engl.


The Republic of Estonia understands the term "national minorities", which is not defined in the Framework Convention for the Protection of National Minorities, as follows: are considered as "national minority" those citizens of Estonia who

- reside on the territory of Estonia;
- maintain longstanding, firm and lasting ties with Estonia;
- are distinct from Estonians on the basis of their ethnic, cultural, religious or linguistic characteristics;
- are motivated by a concern to preserve together their cultural traditions, their religion or their language, which constitute the basis of their common identity.
Period covered: 01/02/98 -
The preceding statement concerns Article(s: -

 

   Germany :



Declaration contained in a letter from the Permanent Representative of Germany, dated 11 May 1995, handed to the Secretary General at the time of signature, on 11 May 1995 - Or. Ger./Engl. - and renewed in the instrument of ratification, deposited on 10 September 1997 - Or. Ger./Engl.


The Framework Convention contains no definition of the notion of national minorities. It is therefore up to the individual Contracting Parties to determine the groups to which it shall apply after ratification. National Minorities in the Federal Republic of Germany are the Danes of German citizenship and the members of the Sorbian people with German citizenship. The Framework Convention will also be applied to members of the ethnic groups traditionally resident in Germany, the Frisians of German citizenship and the Sinti and Roma of German citizenship.
Period covered: 01/02/98 -
The preceding statement concerns Article(s: -

 

   Liechtenstein :



Declaration contained in the instrument of ratification deposited on 18 November 1997 - Or. Fr.


The Principality of Liechtenstein declares that Articles 24 and 25, in particular, of the Framework Convention for the Protection of National Minorities of 1 February 1995 are to be understood having regard to the fact that no national minorities in the sense of the Framework Convention exist in the territory of the Principality of Liechtenstein. The Principality of Liechtenstein considers its ratification of the Framework Convention as an act of solidarity in the view of the objectives of the Convention.
Period covered: 01/03/98 -
 
The preceding statement concerns Article(s: 24, 25

 

   Luxembourg :



Declaration contained in a letter from the Permanent Representative of Luxembourg, dated 18 July 1995, handed to the Secretary General at the time of signature, on 20 July 1995 - Or. Fr.


The Grand Duchy of Luxembourg understands by "national minority" in the meaning of the Framework Convention, a group of people settled for numerous generations on its territory, having the Luxembourg nationality and having kept distinctive characteristics in an ethnic and linguistic way.

On the basis of this definition, the Grand Duchy of Luxembourg is induced to establish that there is no "national minority" on its territory.
The preceding statement concerns Article(s: -

 

   Malta :



Reservation contained in the instrument of ratification, deposited on 10 February 1998 - Or. Engl.


The Government of Malta reserves the right not to be bound by the provisions of Article 15 insofar as these entail the right to vote or to stand for election either for the House of Representatives of for Local Councils.
Period covered: 01/06/98 -
 
The preceding statement concerns Article(s): 15

Declaration contained in the instrument of ratification, deposited on 10 February 1998 - Or. Engl.


The Government of Malta declares that Articles 24 and 25, in particular, of the Framework Convention for the Protection of National Minorities of 1 February 1995 are to be understood having regard to the fact that no national minorities in the sense of the Framework Convention exist in the territory of the Government of Malta. The Government of Malta considers its ratification of the Framework Convention as an act of solidarity in the view of the objectives of the Convention.
Period covered: 01/06/98 -
 
The preceding statement concerns Article(s: 24, 25

 

   Poland :



Declaration contained in a Note Verbale, handed at the time of deposit of the instrument of ratification on 20 décembre 2000 - Or. Fr.


Taking into consideration the fact, that the Framework Convention for the Protection of National Minorities contains no definition of the national minorities notion, the Republic of Poland declares, that it understands this term as national minorities residing within the territory of the Republic of Poland at the same time whose members are polish citizens.
Period covered: 01/04/01 -
 
The preceding statement concerns Article(s): -

Declaration contained in a Note Verbale, handed at the time of deposit of the instrument of ratification on 20 décembre 2000 - Or. Fr.


The Republic of Poland shall also implement the Framework Convention under Article 18 of the Convention by conclusion of international agreements mentioned in this Article, the aim of which is to protect national minorities in Poland and minorities or groups of Poles in other States.
Period covered: 01/04/01 -
The preceding statement concerns Article(s: 18

 

   Russia :



Declaration contained in the instrument of ratification deposited on 21 August 1998 – Or. Rus./Engl./Fr.


The Russian Federation considers that none is entitled to include unilaterally in reservations or declarations, made while signing or ratifying the Framework Convention for the Protection of National Minorities, a definition of the term “national minority”, which is not contained in the Framework Convention. In the opinion of the Russian Federation, attempts to exclude from the scope of the Framework Convention the persons who permanently reside in the territory of States Parties to the Framework Convention and previously had a citizenship but have been arbitrarily deprived of it, contradict the purpose of the Framework Convention for the Protection of National Minorities.
Period covered: 01/12/98 -
The preceding statement concerns Article(s: -

 

   Slovenia :



Declaration contained in a Note Verbale from the Permanent Representation of Slovenia, dated 23 March 1998, handed to the Secretary General at the time of deposit of the instrument of ratification, on 25 March 1998 - Or. Engl.


Considering that the Framework Convention for the Protection of National Minorities does not contain a definition of the notion of national minorities and it is therefore up to the individual Contracting Party to determine the groups which it shall consider as national minorities, the Government of the Republic of Slovenia, in accordance with the Constitution and internal legislation of the Republic of Slovenia, declares that these are the autochthonous Italian and Hungarian National Minorities. In accordance with the Constitution and internal legislation of the Republic of Slovenia, the provisions of the Framework Convention shall apply also to the members of the Roma community, who live in the Republic of Slovenia.
Period covered: 01/07/98 -
The preceding statement concerns Article(s: -

 

   Sweden :



Declaration contained in the instrument of ratification deposited on 9 February 2000 - Or. Eng.


The national minorities in Sweden are Sami, Swedish Finns, Tornedalers, Roma and Jews.
Period covered: 01/06/00 -
The preceding statement concerns Article(s: -

 

   Switzerland :



Declaration contained in the instrument of ratification deposited on 21 October 1998 – Or. Fr.


Switzerland declares that in Switzerland national minorities in the sense of the framework Convention are groups of individuals numerically inferior to the rest of the population of the country or of a canton, whose members are Swiss nationals, have long-standing, firm and lasting ties with Switzerland and are guided by the will to safeguard together what constitutes their common identity, in particular their culture, their traditions, their religion or their language.
Period covered: 01/02/99 -
 
The preceding statement concerns Article(s): -

Declaration contained in the instrument of ratification deposited on 21 October 1998 – Or. Fr.


Switzerland declares that the provisions of the framework Convention governing the use of the language in relations between individuals and administrative authorities are applicable without prejudice to the principles observed by the Confederation and the cantons in the determination of official languages.
Period covered: 01/02/99 -
The preceding statement concerns Article(s: -

 

   the former Yugoslav Republic of Macedonia :



Declaration contained in the instrument of ratification, deposited on 10 April 1997 - Or. Engl.


The Republic of Macedonia declares that the term "national minorities" used in the Framework Convention for the Protection of National Minorities is considered to be identical to the term "nationalities" which is used in the Constitution and the laws of the Republic of Macedonia.
Period covered: 01/02/98 -
 
The preceding statement concerns Article(s): -

Declaration contained in the instrument of ratification, deposited on 10 April 1997 - Or. Engl.


The Republic of Macedonia declares that the provisions of the Framework Convention for the Protection of National Minorities will be applied to the Albanian, Turkish, Vlach, Roma and Serbian national minorities living on the territory of the Republic of Macedonia.
Period covered: 01/02/98 -
The preceding statement concerns Article(s): -

Source: Treaty Office on http://conventions.coe.int

Reporting Committee : Committee on Legal Affairs and Human Rights

Committee for opinion : Political Affairs Committee

Reference to committee : Order No. 513 (1996)

Opinion approved by the Committee on 20 January 2001

Secretaries of the Committee: Mr Perin, Mrs Ruotanen, Mr Sich, Mrs Hügel-Maffucci


1 See Doc 8920 of the Committee on Legal Affairs and Human Rights