23 January 2001
Rights of national minorities
Committee on Migration, Refugees and Demography
Rapporteur: Mr Csaba Tabajdi, Hungary, Socialist Group
I. GENERAL REMARKS
1. The Committee on Migration, Refugees and Demography is highly interested in the question of the protection of national minorities, in particular taking into account the fact that many conflicts involving such minorities have generated in the past decade hundreds of thousands of refugees and displaced persons, scattered at present all over Europe. Therefore it is absolutely essential that this important issue be considered thoroughly and effectively in order to achieve real progress.
2. The Committee agrees that in order to ensure the genuine protection of national minorities, conventional human right standards are per se insufficient. Additional specific protection and positive measure by states are necessary. Without such additional protection and practical measures, "implementation of human rights will not be a reality for national minorities", as Rapporteur of the Committee on Legal Affairs and Human Rights rightly puts it.
3. The Council of Europe has contributed to the progress in this area over the past decade in a significant way. In particular, the adoption, in 1993, of Recommendation 1201 (1993) should be mentioned, as well as the entrance into force, in 1998, of the Framework Convention for the Protection of National Minorities, and the European Charter for Regional or Minority Languages marked an important step.
4. The latter two international instruments constitute the basis for the protection of national minorities in Europe, however, both being the result of a political compromise, they set out only the minimum standards and recognise only a few rights relating to persons belonging to national minorities, and such groups.
5. The current machinery for protecting the rights of national minorities in Europe is unsatisfactory. The coherency and the adaptation to the everyday raising new problems and multiplying needs must be significantly improved and geared to the long-term European protection mechanism. The examples of Bosnia and Herzegovina, Kosovo and Chechnya prove that such mechanism for the settlement of interethnic conflicts has yet to undergo significant transformations in order to be effective. The role of transparency, dissemination of legal information, raising awareness of existing procedures, and the involvement of civil society in the process are of crucial importance.
6. As is well known, the major obstacle to the development of protection machinery for the rights of national minorities is the lack of political will shown by some European countries to establish a legal instrument within the European Court of Human Rights which would allow for European minorities to submit their complaints to the Court. The Committee fully supports Mr Bindig's proposal to draw up a specific protocol to the European Convention on Human Rights.
7. Similarly, the Committee supports the Italian proposal of a draft additional protocol to the Framework Convention for the Protection of National Minorities. The proposal tabled last year, aimed at conferring advisory functions to the European Court of Human Rights in principle raises no formal problems and would not involve any changes in the Court's status. Of course, one should ask whether the resources of the Court at this moment would allow it to discharge in an appropriate way such mandate.
8. With regard to the proposal on the appointment, in the office of the Council of Europe Commissioner for Human Rights, of a person assigned to deal with matters regarding the protection of the rights of minorities, the Committee is also fully supportive of it.
9. The most complex issue remains, however, both theoretically and from a practical point of view, the distinction between "indigenous", "historic" or "traditional" national and ethnic minorities on the one hand, and "the new minorities" composed of recent immigrant communities on the other. Certainly the fundamental human rights and liberties of persons belonging to such groups, as codified in international human rights instrument are universal and indivisible, but in terms of the state's obligations towards the two categories there are major differences. Concerning for example education in the mother tongue, In the case of immigrant communities, there is an immediate need to learn the country's language for the sake of a smooth integration on a local and national level, beyond the preservations of the mother tongue. There are therefore priorities, which cannot be settled a priori and on a theoretical level only.
10. The Parliamentary Assembly has clearly acknowledged that the minorities resulting from border changes or from the disintegration of interethnic states such as the Soviet Union, Yugoslavia or Czechoslovakia, are regarded as traditional indigenous minorities. All previous reports on the Baltic countries and the other former Soviet republics are consistent from that point of view.
11. The Committee urges the Assembly to adopt draft order instructing the Committees on Legal Affairs and Human Rights, and on Migration, Refugees and Demography to examine closely the situation and the rights of new minorities originating from immigration.
12. In future, the Assembly should extend its study of the rights of national minorities in the area of the exercise of rights at local level, and to examine the relations between administrative decentralisation, regionalisation, devolution and implementation of the rights of national minorities.
13. The Assembly could envisage to suggest a harmonisation of the definitions of national, ethnic, religious and linguistic minorities within the Council of Europe, the OSCE and the United Nations.
14. The problem of ratification of the Framework Convention deserves serious attention. Indeed, as the report goes, "the Assembly made early ratification of the Framework Convention a condition for the accession of new member States to the Council of Europe". However, several "old" member States have either not signed or have signed, but not ratified the Framework Convention, and the Assembly de-facto puts up with this. This situation gives rise to a legitimate concern about discriminatory treatment of some member States from whom a lot more than from the others is demanded. The Rapporteur is completely right when saying that "this situation is liable to deprive the Framework Convention of any real continent-wide effect", but suggests no way of resolving the problem. In my view, ratification, without delay, of the Framework Convention should be made mandatory for at least those member States where existence of minorities and respect of their rights are constitutionally recognised. As to procedures, unwillingness to sign the convention, or unreasonably long period between signing and ratification, might be considered as a good reason for the opening of the monitoring procedure.
15. Moreover, numerous conditions and reservations included in several articles of the Framework Convention ("if those persons so request", "where such a request corresponds to a real need", "when there is a sufficient demand", etc) in fact mean, that the Convention determines that practical decisions in the field of implementation of minority rights must be a result of constructive dialogue between national governments and minorities. Mechanisms of implementation crucially depend on how much, and in which practical forms of arrangements, these rights are demanded in practice. Introduction of a rigid definition could distort this basic approach.
16. Some member states went so far as to explicitly deny in their declarations the very existence of any national minorities within their territories. This situation should be deemed clearly unacceptable, and the Assembly should articulate the demand that reservations and declarations made by the States parties to the Framework Convention (FC) must not run contrary to the spirit and letter of the Convention.
17. The problem of reservations and declarations made by member States when ratifying the Framework Convention should be mentioned. Most of these declarations are aimed at limiting the scope of persons to whom the provisions of the Framework Convention shall apply. In particular, some member States have introduced lists of ethnic groups recognised as national minorities on the basis of unclear or arbitrary criteria. In some cases, these declarations predetermine the situation when ratification of the Framework Convention entails in fact no new obligations for the corresponding member State.
II. THE PROBLEM OF DEFINITION OF A MINORITY
18. There is no generally recognized legal definition of the term "national minority", not to speak about ethnic, religious or linguistic minorities in international law, despite several attempts in the past decades to elaborate such concept. A significant amount of energy and time was spent over the past five decades in various international organizations in the quest for a generally acceptable definition of the term minority, mainly for codification purposes, yet no conclusive results can be reported. After 1949, there were several attempts in the United Nations' system and the Council of Europe to elaborate a legal definition of the term (national, ethnic, religious and linguistic) "minority." The most quoted is the descriptive definition contained in the 1977 report of Francesco Capotorti, the Special Rapporteur of the UN Sub-Commission on the prevention of discrimination and protection of minorities. The report, in its paragraph 564, noted: "Application of the principles set forth in article 27 of the Covenant cannot be made contingent upon a 'universal' definition of the term 'minority', and it would be clouding the issue to claim the contrary." Interestingly, the question of why it was possible to raise the problem of the definition of 'national minority', unless there is no acceptable definition of the nation in international law, was not given much consideration. A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members - being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.
19. The Parliamentary Assembly of the Council of Europe in its Recommendation 1201 (1993) proposes the following definition: "... the expression "national minority" refers to a group of persons in a State who: a) reside in the territory of that State and are citizens thereof, b) maintain long-standing, firm and lasting ties with that state, c) display distinctive ethnic, cultural, religious or linguistic characteristics, d) are sufficiently representative, although smaller in number than the rest of the population of the State or of a region of that State, and e) are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their traditions, their religion or their language."
20. In addition to general considerations of legal nature, practical political aspects should be taken into account. At the moment, different Council of Europe member States apply different working definitions of minority, ranging from very inclusive and generous to extremely restrictive ones. Introduction of a commonly accepted definition would inevitably mean alignment by the lower common denominator. Besides, it should be borne in mind that in all member States, even in those implementing most generous policies towards minorities, influential political parties exist, that advocate much more restrictive minority policies.
III. THE LEGAL AND POLITICAL STATUS OF RECOMMENDATION 1201 (1993)
21. The Parliamentary Assembly has adopted a pragmatic approach and has been anxious to preserve the value of Recommendation 1201 (1993) as a reference text. It was Recommendation 1255 (1995) which made this point quite unambiguously by referring to the Committee of Ministers' failure to act on the famous recommendation: "The Assembly now confirms the principles listed in its Recommendation 1201 (1993) and the additional protocol it then proposed". It is clear that many resolutions adopted by international organisations leave no tangible traces beyond a few weeks, and the Parliamentary Assembly accordingly
tried to find a way out of this situation. In its Order No.501 (1995), "the Assembly refers to its Recommendation 1255 (1995) and to its previous texts concerning the protection of national minorities.
22. In its Order No.508 (1995) on the honouring of obligations and commitments by member states of the Council of Europe, the Parliamentary Assembly refers first of all to certain earlier orders and continues as follows: "In Resolution 1031 (1994) the Assembly observed that 'all member states of the Council of Europe are required to respect their obligations under the Statute, the European Convention on Human Rights and all other conventions to which they are parties. In addition to these obligations, the authorities of certain states which have become members since the adoption in May 1989 of Resolution 917 (1989) on a special guest status with the Parliamentary Assembly freely entered into specific commitments on issues related to the basic principles of the Council of Europe during the examination of their request for membership by the Assembly. The main commitments concerned are explicitly referred to in the relevant opinions adopted by the Assembly'".
23. From the Parliamentary Assembly's point of view, the situation is perfectly clear. It should be noted that the Parliamentary Assembly, which is not empowered to issue legal rules as such, was able to reach this conclusion without overstepping its powers. It used its self-regulatory powers in the narrow sense (namely the monitoring procedure in the Strasbourg Assembly Chamber), although there have been some repercussions outside that framework. The Committee of Ministers could have taken action if it had observed any overstepping of powers, but it seems to approve. Although the Committee of Ministers' position is not fully in line with the Parliamentary Assembly's radicalism, it does also stress "the importance of the strict compliance with these commitments by every member state", and in addition to the treaty obligations specific to the Council of Europe, we find an obscure reference to "other legal instruments" (Declaration on compliance with commitments accepted by member states of the Council of Europe, 10 November 1994).
24. Does this mean that Recommendation 1201 (1993) applies only to the "new" member states? The Parliamentary Assembly has attempted to reconcile theoretical rigour with political pragmatism. While it has noted the existence of an obligation on the new member states, which were admitted subject to certain conditions, it has recommended that "the Committee of Ministers call on the member states of the Council of Europe (…) to incorporate in their domestic law, and implement in practice, minority rights in line with Recommendation 1201 (1993)" (Recommendation No.1275 (1995) on the fight against racism, xenophobia, anti-Semitism and intolerance). The Committee of Ministers has remained silent on this proposal and has said nothing about the extension of the effects of Recommendation 1201 (1993) to the old member states. Where these states are concerned, the famous recommendation has very limited effects, of the "soft law" type, which are difficult to define because the initial purpose of Recommendation 1201 (1993) was, after all, to propose a draft convention.
25. The fourth constituent element of "soft law" is direct reference to the texts concerned in treaties of international law. Thanks to the bilateral treaties between Hungary and Slovakia, Hungary and Romania, etc, Recommendation 1201 (1993) acquires a significance which it would not have had if it had remained in its original multilateral framework.
26. It may finally be observed that the undertakings entered into under Recommendation 1201 (1993) are of a legal nature. An examination of the conditions under which these commitments were made and of the recommendations, resolutions, opinions etc of the relevant bodies leads to the same finding. Circumstances have given an a posteriori legal value to a "soft law" document. It is true that mere recognition of this fact is not sufficient to answer the question, apart from a general obligation to comply with the principles contained in Recommendation 1201 (1993). In other words, with what degree of precision can the numbered articles of the recommendation be invoked?
27. It may therefore be seen that Recommendation 1201 (1993) suffers no loss of substance through comparison with the Framework Convention. Obviously, Article 11 of Recommendation 1201 (1993) is of particular importance here: "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." At first sight, Article 15 of the Framework Convention is much more limited in scope: "The parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them." However, when we look at the official commentary on the Framework Convention, we find that one of the means of implementing Article 15 is indeed self-autonomy, which is also the recent opinion of the Venice Commission. "For the Framework Convention, participation of the persons belonging to minorities in public affairs is above all the question of personal autonomy and not of local autonomy."2
28. The Venice Commission, requested by the Parliamentary Assembly to give an expert opinion, also concluded as to the applicability of Article 11 in relation to states having entered into undertakings under Recommendation 1201 (1993). It stressed, however, that "any attempt of interpretation of Article 11 of Recommendation 1201 (1993) must be particularly cautious" and listed a number of "guidelines which should inspire the practice of states when conforming with the requirements under Article 11", specifying that these were not "requirements directly following from that provision."
29. There are no legal grounds for denying the binding value of Recommendation 1201 (1993) in certain cases and in respect of states which have entered into undertakings under that recommendation. This also applies to Article 11. Recent events at the Council of Europe reinforce rather than weaken the recommendation's true nature. There is no doubt as to its legal value.
30. It should be noted that Mr Ferdinando Albanese, Director of Local Authorities and the Council of Europe's most prominent expert on the protection of minorities, came to similar conclusions. In his view, the opinion of the Venice Commission and the references to Assembly Recommendation 1201 in the treaties between Hungary and Croatia, Slovakia, and Hungary and Romania, can be interpreted as meaning that the Commission and the states concerned, while asserting that there is no right of minorities to territorial autonomy under international law, recognise that "the local and regional self-government" instrument is nevertheless one of the possible instruments for achieving effective protection of minorities.
IV. CONCLUDING REMARKS
31. As far as minority rights are recognized only as individual rights, that is, as rights and freedoms of persons belonging to national or ethnic, religious or linguistic minorities, theoretically there is no problem integrating them in international human rights instruments. In practice, however, a number of questions arise, as for example the debates around the definition of the term "minority" demonstrate. From the general perspective, however, the difficulties related to legal (codification) matters are overwhelmed by the question: who is the guarantor or the guardian of minority protection, including the implementation and realization of the relevant international instruments and the rights assigned by them to persons belonging to minorities? The realistic answer, since the issue became subject of discussion and codification in various international organizations such as the UN, the CE and the OSCE, was quite clear: States are supposed to guarantee these rights and freedoms. But since protests, rebellion, secessionist claims, and civil wars are facts of the real world, in certain cases as a result of oppressive government policies towards minorities soon, States found themselves in a schizoid situation. While most of the governments did not (and could not, indeed) question the moral arguments supporting the protection of minorities and their rights, the realities on the ground (a sad historical past, a present complex political situation, a transit era, etc), lead to the solution of attaching limitations to the exercise of minority rights.
32. It is up to each government to interpret the underlying concepts of articles of the Framework Convention. It must be noted here, that unfortunately, in the view of some governments minority claims are still considered, regardless of the context, as subversive, or a danger to the security of the State, and therefore, in general unacceptable. If was mentioned above that the prevailing view of the early nineties was that minority issues are also international security matters, they should not be interpreted by States in their interplay with minorities exclusively as matters of national security, i.e. dealt with by the military, the police or other, coercive administrative means.
33. It must be underlined at the same time that while in some cases ethnicity or faith are indeed non-negotiable in substance, the means and ways ethnicity is preserved, or religion is practiced can be subject to various practical arrangements, on which the parties concerned may compromise. The standards, instruments and arrangements, in one word, the norms worked out by European organizations seem to take into account this particular circumstance.
34. In the past decade Europe, by and large, with all the failures and deficiencies, at least started developing some regional mechanisms to come to grips with the issue of national minorities. For example, governments' minority policies monitoring on a regular basis by regional international organisations, standard setting and implementation under the threat of effective sanctions, such as withholding aid, exclusion from the prospects of membership in Euro-Atlantic structures, etc.
35. Finally, referring to the motion for a resolution on creating an ad hoc Assembly committee on the rights of minorities (cf. document 8304) the Rapporteur is of the opinion that the establishment of such a committee would be justified. It would be mandated with elaborating proposals for harmonisation of various legal instruments, in particular recommendations adopted by PACE the Committee of Ministers, on the one hand, and OSCE documents in the field of minority protection on the other. Such a harmonisation could, for example, focus on a comparative analysis, followed by a review of state obligations in the field of minority protection, as contained in the Council of Europe's legally binding instruments, and the concrete undertakings in this field made before the PACE by member states admitted in the nineties. This analysis can constitute, inter alia, a useful starting point for the Committee on Migration, Refugees and Democracy in considering the practice of various Council of Europe member states in the field of minority protection, before contemplating specific recommendations on the application of international legal instruments on minority rights, containing provisions on these rights, or on the protection of minorities, to groups others than national minorities in the "classical" or "autochthon" sense, and persons belonging to these groups, as recent immigrants.
Reporting committee: Committee on Legal Affairs and Human Rights (Doc. 8920).
Committee for opinion: Committee on Migration, Refugees and Demography.
Origin: Order No. 513 (1996).
Draft opinion approved by the committee on 23 January 2001.
Secretaries to the committee: Mr Lervik, Mrs Nachilo, Mr Adelsbach.
1 See Doc. 8920.
2 European Commission for Democracy through Law: Opinion on the interpretation of Article 11 of the draft protocol to the ECHR annexed to Parliamentary Assembly Recommendation 1201 (1993) – CDL-MIN(96)4, p.3, 1 March 1996.