Doc. 9536

5 September 2002

Protection of minorities in Belgium

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mrs Lili Nabholz-Haidegger, Switzerland, Liberal, Democratic and Reformers' Group

Summary

The Parliamentary Assembly attaches great importance to the protection of national minorities and expects its member States to guarantee to them the rights laid down in the Framework Convention for the Protection of National Minorities.

It welcomes the signature by the Kingdom of Belgium of this Framework Convention and asks it to ratify it as soon as possible and to ensure that all national minorities in the country, at whatever level, are protected by it.

It relies on the opinion of the European Commission for Democracy through Law ("Venice Commission") for the identification of those minorities to which the Convention should apply.

I.               Draft resolution

1.        The Parliamentary Assembly recalls its Resolution 1172 (1998) on the situation of the French-speaking population living in the Brussels periphery and its Recommendation 1492 (2001) on the rights of national minorities.

2.        The Assembly reiterates that adequate protection for persons belonging to national minorities and their communities is an integral part of the protection of human rights. It thus considers that all member states of the Council of Europe have an obligation to safeguard the minimum rights of national minorities, as set out in the Framework Convention for the Protection of National Minorities. In this context, the Assembly recalls that, for several years now, a state’s willingness to sign and ratify the Framework Convention, and to apply Recommendation 1201 (1993) on an additional protocol on the rights of national minorities to the European Convention on Human Rights, has been a precondition for the granting of membership of the Council of Europe. The founding states of the Council of Europe bear a particular responsibility to fulfil the obligations they expect new member states to adopt.

3.        The Assembly also considers that Protocol 12 to the European Convention on Human Rights on the general prohibition of discrimination can play an important role in this field, as it will enable individual claimants to have their right not to be discriminated against judicially enforced, once the Protocol enters into force.

4.        The Assembly therefore welcomes the signature by the Kingdom of Belgium of Protocol 12 on 4 November 2000 and of the Framework Convention on 31 July 2001. By virtue of these steps the Belgian authorities have underlined their conviction that respect for the rights of minorities constitutes an integral part of respect for human rights. The Assembly therefore regrets that the Belgian authorities deemed it necessary to accompany the signature of the Framework Convention by a so widely-worded reservation that it risks to undermine most of the Convention’s content. If the Kingdom of Belgium decided to uphold the reservation upon ratification of the Convention as entered upon signature, it might be considered as a violation of the Vienna Conventions which do not allow countries to enter reservations upon ratification which void the Convention of meaning.

5.        A state party to the Framework Convention reaffirms through ratification of the same that the protection of national minorities plays an important role in safeguarding democratic stability and peace within its borders. The freedom to use one’s own language is a prerequisite for being able to benefit from other freedoms guaranteed by the European Convention on Human Rights, such as freedom of thought and of expression. The use of a minority language constitutes the most important way for its speakers to safeguard and express their identity.

6.        The Framework Convention itself does not define the term “national minorities”. However, the Parliamentary Assembly has done so in Recommendation 1201 (1993) on an additional protocol on the rights of national minorities to the European Convention on Human Rights, a definition which still remains valid today:

“For the purposes of this Convention, the expression ‘‘national minority'' refers to a group of persons in a state who:

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

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

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

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

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

7.        In Recommendation 1492 (2001) on the rights of national minorities, the Assembly reaffirmed this definition, and condemned “the denial of the existence of minorities and of minority rights in several Council of Europe member states and the fact that many minorities in Europe are not afforded adequate protection.” The Assembly singled out Belgium as one of the countries which “have significant minorities, which ought to be protected, and whose rights are not officially recognised.”

8.        It is in the interest of the Belgian state that all minorities in the country which fulfil the conditions of Recommendation 1201 (1993) be adequately protected. Belgium is a federal state made up of three communities, three regions, and four linguistic regions (three monolingual, one bilingual). Competence for many policy areas has – by common accord – been transferred to different federal entities of the Belgian state. In most of the areas which have the potential to directly affect minorities, such as culture and education, this competence has been transferred from the federal centre to the three communities (Flanders, the French-speaking Community, and the German-speaking Community).

9.       Belgium’s regions and communities are invested with legislative power. In many areas, sole authority to legislate by “decrees” having the force of statute throughout the territory for which they are responsible lies with the communities and the regions. Decrees may repeal, amplify, amend or replace prevailing statutory provisions in the allocated areas of responsibility; and are placed under the sole control of the Court of Arbitration. The communities have responsibility for cultural affairs, education, personalised services, and the use of languages in administrative matters, education, and industrial relations between employers and their employees. The responsibility of the regions includes inter alia land use and planning, environment, water and agricultural policy, housing, economic and employment policy, public works and transport.

10.       The fact of the exclusive responsibility of the communities and regions for many policy areas, including those touching on the protection of minorities, has been confirmed by one of the highest Belgian courts, the Court of Arbitration. In its judgment no. 54/1996 the Court held that “it is the duty of each legislator, within the limits of its competence, to ensure the protection of minorities”, and made Flanders responsible for protecting the rights of the “French-speaking minority established” in the Flemish communes with facilities for French-speakers.

11.        Because of this transfer of power from the federal centre to Belgian federal entities, the Framework Convention for the Protection of National Minorities would have to be ratified by all seven competent parliamentary assemblies (including the Flemish parliament and the parliaments of the French-speaking and German-speaking Communities), for it to come into effect in Belgium.

12.        At the request of the Committee on Legal Affairs and Human Rights, the European Commission for Democracy through Law (“Venice Commission”) has analysed which possible groups the Framework Convention could be applied to in Belgium. The Venice Commission concluded as follows: “In a context of downward transfer of political powers, an increasing number of laws and decisions affecting the rights of persons belonging to national minorities are taken at the regional or local level, not at the State level. In case of territorial sub-divisions, the State might even lose competence in those fields of interest for minorities. While it remains internationally accountable for the respect of its commitments, it must take this decentralization of powers into consideration when deciding the scope of application of the Framework Convention. … it is normally the sub-State entities that are competent in respect of the fields of interest to minorities: to exclude the applicability of the Framework Convention at the sub-State level would thus be contrary to the object and aim of the Convention itself.”

13.       It is thus in the context of the decentralisation of the Belgian state, and the wide powers especially of the three communities in the area of minority rights, that the existence of national minorities in Belgium at all levels must be assessed. According to the Venice Commission, “this approach is in line with the spirit of the Framework Convention, which itself foresees cases in which a minority becomes locally a majority, and stipulates that this local majority will have to ‘respect the rights of others, in particular those of persons belonging to the majority’ … the Framework Convention… does not set out any territorial delimitation of the notion of minority and, to the contrary, expressly provides for protection of sub-minorities“.

14.        The Venice Commission further concluded that: “A teleological interpretation of the Framework Convention suggests that only those groups of persons that are actually exposed to the risk of being dominated by the majority deserve protection. Numerical inferiority may thus not be a sufficient element, even though a necessary one, for a group of persons to qualify as a “minority” within the meaning of the Framework Convention. In the Commission’s view, it is necessary to exclude from the scope of application of the Framework Convention those groups of persons that, although inferior in number to the rest or to other groups of the population, find themselves, de iure or de facto, in a dominant or co-dominant position.”

15.       The Commission is of the opinion “that in Belgium, in the light of the existing equilibrium of powers between the Dutch-speaking and the French-speaking at the State level, French-speakers are in a position of co-dominance and therefore do not constitute a minority within the meaning of the Framework Convention at this level, despite being numerically inferior to Dutch-speakers. German-Speakers, instead, are to be considered as a minority in the sense of the Framework Convention at the State level.”

16.       The Venice Commission concluded that, “at the regional level, having regard to the distribution of competences between the various regions and communities and of the territorial division of the country, the Commission considers that French-speakers in the Dutch-language Region and in the German-language Region may be considered as a minority in the sense of the Framework Convention, as may Dutch-speakers and German-speakers in the French-language Region.”

17.        The Assembly fully agrees with the analysis, reasoning and the conclusions of the Venice Commission. On the basis of the definition of the term “national minorities” in Recommendation 1201 (1993), cited above, the Assembly comes to the same conclusion. While, for example, the French-speakers in Belgium might not need the protection of the Framework Convention on the state level, due to their co-dominant position at that level (and that level only), they are in need of that protection in the whole of Flanders. The longstanding, firm and lasting ties of the French-speakers with Belgium, and indeed with Flanders, cannot be doubted; neither can the firm and lasting ties of Dutch-speakers with Belgium, and indeed with Wallonia, be put into question.

18.        The Assembly thus finds that the following groups are to be considered as minorities in Belgium within the context of the Framework Convention: at state level, the German-speaking community; at regional level, the French-speakers in the Dutch-language Region and in the German-language Region, and the Dutch-speakers and German-speakers in the French-language Region.

19.        The Assembly draws attention to the danger that, should the Kingdom of Belgium make a declaration upon ratification of the Framework Convention which might seek to exclude from the Convention’s scope of protection a group of persons that, although not belonging to a minority at the state level, was threatened with losing its identity by the operation of democratic institutions at the regional level, such a declaration would probably have to be understood as a reservation incompatible with the object and purpose of the Framework Convention itself.

20.        The Assembly thus recommends that the Kingdom of Belgium, and its respective competent parliamentary assemblies (including those on the level of the regions and the communities):

i. in a spirit of tolerance, ratify the Framework Convention without further delay, ensuring that all minorities identified by the Assembly are duly recognised as such on the state and regional level, and refrain from making a reservation incompatible with the content of the Framework Convention;

ii. ratify Protocol No. 12 to the European Convention on Human Rights in the near future;

iii. make the signature and ratification of the European Charter for Regional and Minority Languages a priority.

21.        The Assembly further recommends that effective measures be taken in the Kingdom of Belgium to further tolerance and dialogue between the language groups and their respective cultures. The role of education, of cultural exchange and of the media are thus fundamental, especially as regards the implementation of the aims of the Framework Convention. In view of this, the Assembly recommends that the official languages of Belgium be taught as a priority in all of the Kingdom’s communities. The Assembly recommends that a cultural co-operation accord be concluded between the French-speaking and Dutch-speaking Communities as a matter of urgency.

22.        Finally, the Assembly calls on the Kingdom of Belgium to fully implement, without further delay, the judgment of the European Court of Human Rights of 23 July 1968, which inter alia stipulated that children of parents not resident in the six municipalities with linguistic facilities in the Brussels periphery should nevertheless be allowed to attend the French-speaking schools in these municipalities.

II.        Draft order

The Parliamentary Assembly, with reference to Resolution… (2002) on the protection of minorities in Belgium, instructs its Committee on Legal Affairs and Human Rights to follow, in the framework of Resolution 1268 (2002) on the implementation of decisions of the European Court of Human Rights, the implementation of the Court’s judgment of 23 July 1968.

III.       Explanatory memorandum

      by Mrs Nabholz-Haidegger, Rapporteur

A.       Introduction

1.        On 22 December 2000, Mr Georges Clerfayt, member of the Committee on Legal Affairs and Human Rights, forwarded a petition on the protection of minorities in Belgium signed by 37 local dignitaries to Lord Russell Johnston, President of the Assembly. At its meeting on 13 March the Bureau of the Assembly declared the petition admissible, and referred it to the Committee on Legal Affairs and Human Rights for examination.

2.        At its meeting in Paris on 6 April 2001, the Committee on Legal Affairs and Human Rights considered that the problems raised in the petition were sufficiently important to declare the petition admissible and asked its Chairperson to write to the President of the Assembly requesting that the petition be referred to the Committee for report. The Committee also appointed me as its Rapporteur. The Bureau agreed with the Committee’s proposal on 27 April 2001.

3.        The Committee felt that it was the next logical step for me to visit Belgium (to meet with the petitioners and key state officials), which I did on 13 June 2001. My visit came at a propitious time, as the government and the parliament were at that time debating the “Lambermont” accords of state reform, and in this framework I was able to make a strong case for signing the Council of Europe Framework Convention for the Protection of National Minorities on the occasion of the passing of these accords. As it turned out, the signature of the Framework Convention was agreed upon for internal political reasons, and the Belgian Minister of Foreign Affairs, Mr Louis Michel, duly signed the Convention on 31 July 2001 - accompanied by a rather widely-worded reservation, however.

4.        I thus turned my efforts to obtaining an early ratification of the Framework Convention, and returned to Belgium from 3 to 7 September 2001. During this visit I met with representatives of all those who consider themselves minorities in Belgium, as well as with official state representatives at all levels. I would like to express my heartfelt thanks to the Belgian parliamentary delegation, and especially its Secretariat, who arranged an excellent programme and assisted me in every way during both my visits.

5.        The overriding impression I got from my September visit to Belgium was that the main obstacle standing in the way of an early ratification of the Framework Convention was the question of which possible groups of people in Belgium the Convention could be applied to. Accordingly, I suggested to the Committee that the European Commission for Democracy through Law (Venice Commission) be asked to give an opinion on this matter. The Committee followed my suggestion, and on 19 October 2001, the Venice Commission appointed four Rapporteurs: Mr Sergio Bartole, Professor at the University of Trieste (Italy), Mr Giorgio Malinverni, Professor at the University of Geneva (Switzerland), Mr Franz Matscher, Professor at the University of Salzburg (Austria), and Mr Pieter van Dijk, State Councillor, Council of State (Netherlands).

6.        Again in the hope of advancing matters, I suggested that an exchange of views be organised between the Rapporteurs of the Venice Commission and Belgian stakeholders. With the approval of the Committee and the Belgian authorities, this informal exchange of views took place on 19 January 2002 in Brussels, under the able Chairmanship of the outgoing President of the Assembly, Lord Russell Johnston. The meeting was well-attended, and allowed high-ranking Belgian officials, including the Foreign Minister and the Minister-Presidents of the Regions and Communities, to get acquainted with the preliminary conclusions of the Rapporteurs of the Venice Commission.

7.        On 8 March 2002, the Venice Commission adopted its opinion (see Appendix I). I have based my conclusions quite heavily on this opinion, with which I fully concur. I regret the necessity to point out that the integrity, independence and eminence of the Venice Commission and its Rapporteurs cannot be put into doubt. The Commission is composed, in accordance with its Statute, “of independent experts who have achieved eminence through their experience in democratic institutions or by their contribution to the enhancement of law and political science.” The members of the Commission, though appointed by each member state, “shall serve in their individual capacity and shall not receive or accept any instructions”. Even if one should not agree with the unanimously adopted opinion of the Venice Commission on this matter, it would be impossible to find other independent experts of a similar calibre in the whole of Europe. Neither would it serve to ask the Venice Commission for a second opinion on the same question, simply in the misguided hope of getting a different answer, more acceptable to one party in the dispute than the opinion the Venice Commission has already given.

8.        On 18 March 2002, the Committee on Legal Affairs and Human Rights unanimously approved my report based on the opinion of the Venice Commission, which was submitted to the Assembly as Doc. 9395 (rev). On 23 April 2002, 11 amendments were tabled to the draft resolution contained in that Document, with the Flemish parliamentarian Mr van den Brande as the first signatory to all of them. Of these amendments, 2 were accepted in a sub-amended form by the Committee; the other 9 were rejected by the Committee with an overwhelming majority. On 24 April 2002, before the debate on the report could begin, the Italian parliamentarian Mr Gubert, on behalf of the EPP/CD group, moved the procedural motion to send the report back to the Committee. This motion was carried with 35 votes in favour, 26 against and 3 abstentions.

9.        I regret very much that the Assembly accepted the proposal of the EPP/CD group not to debate the issue at hand – the report could also have been sent back to Committee after the debate had taken place, but before the draft resolution was voted upon. However, I feel that it is now my duty to deepen and detail the arguments which led me – and the entire Committee, which had unanimously supported me – to the conclusions as reflected in the draft resolution submitted to the Assembly (I think the Venice Commission’s opinion speaks for itself, and needs no further clarification). I have taken particular care to be as precise as possible in the formulation of the revised draft resolution, so as to avoid all possibilities for misunderstandings.

B.       Historical background:

Resolution 1172 (1998) and the petition of 22 December 2000

10.        The petition of 22 December 2000 concerning the protection of minorities in Belgium, which was the starting-point for this report, was signed by a number of local French-speaking dignitaries, inhabitants of communes in “the Brussels periphery” situated in Flanders. They claimed to represent a population of some 120.000 French-speaking Belgian citizens, and protested “against the discriminatory status imposed on members of this population group by the Belgian state, depriving them of their elementary and basic cultural, linguistic and political rights”. According to the petition, the discrimination resulted from the strict interpretation of the territoriality principle by the Flanders, which “requires the exclusive use of the Dutch language and rules out recognition of any linguistic, cultural or political rights for French-speakers, whether individually or as a group”. The petitioners argued that the 120.000 French-speakers in “the Brussels periphery”, as well as the inhabitants of Fourons and other communes with linguistic “facilities” on the language border in Flanders, constituted a national minority within the definition adopted by the Parliamentary Assembly in Recommendation 1201 (1993), and should thus enjoy, “at the very least, the rights generally secured by the Council of Europe to minorities living in its members states”.

11.        The petition, of course, did not come out of the blue. In September 1998, the Assembly had debated a report by Mr Dumeni Columberg, Rapporteur of this Committee, on the situation of the French-speaking population living in the Brussels periphery (Doc. 8182), and had adopted Resolution 1172 (1998). In many ways, the petition was taking up once more the alleged grievances of the French-speaking population on the Brussels periphery. Despite the fact that the draft Resolution proposed by the Rapporteur had been heavily amended by Belgian parliamentarians, amendments which were approved by the Assembly, the end-result of the text was quite clear on the origins of this particular conflict: “A conflict has arisen involving the six communes with linguistic facilities in the Brussels periphery (and, to a lesser extent, involving the other communes without facilities in the Brussels periphery) about the treatment of the French-speaking inhabitants. The current conflict seems to have been sparked off by an increased tendency of the Flemish government to restrict as far as legally possible the use of the linguistic facilities, with the aim of reinforcing the Flemish, Dutch-speaking character of the region, including the six communes in question. This tendency of the Flemish Government seems itself to originate in a perceived "Frenchification" of the Brussels periphery at its origin, a fear to which some French-speaking politicians have probably contributed.” (paragraph 5).

12.        As to the solution of this particular conflict, the Assembly was adamant that this and other linguistic conflicts in Belgium could only be solved if all parties concerned (especially the politicians) were “good-willed, open-minded, tolerant, pragmatic and flexible, willing to further the peaceful cohabitation of different linguistic groups” and refrained from stoking up or using these conflicts for political ends (paragraph 6), and if the decisions of the different conflict resolving mechanisms and the courts were respected (paragraph 7). The Assembly ended with an appeal to both parties (the Flemish Government and the French-speaking inhabitants of the Brussels periphery) to seek to find a modus vivendi respecting the rights of the other party (paragraphs 8 and 9). The Assembly further recommended that the Belgian Government encourage cultural communication and co-operation across the language borders within the Belgian state, for example by concluding cultural co-operation accords between the different communities and the different regions, and that the Government consider signing and ratifying the European Framework Convention for the Protection of National Minorities.

13.        I consider that Resolution 1172 (1998) contained some very wise recommendations to the two parties to this particular conflict. I find it regrettable that neither of the parties concerned turned out to be able (or willing) to implement these recommendations in good faith without the Parliamentary Assembly getting involved once more. Basically, the situation on the Brussels periphery as I found it in June 2001 had not changed much from the situation our former colleague, Mr Columberg, found when he visited Belgium in May 1998: the conflict had not been resolved in the meantime, but had instead been allowed to fester. The Flemish Government was still waiting for adjudication by the Council of State on the validity of certain Flemish ministerial circular letters, in accordance with which documents were only to be issued in French to residents of communes with linguistic facilities “every time an individual has made an express demand” (instead of automatically once the resident had registered himself as a French-speaker). The Flemish Government was also effectively blocking the signature of the Framework Convention. The French-speaking inhabitants of the Brussels periphery, and in particular their political representatives, were showing little willingness to recognise that they lived in communes with linguistic facilities situated in a monolingual region, not a bilingual region, and were continuing – as their Flemish counterparts – to use the conflict for political ends.

14.       In these circumstances, I have decided to treat the particular conflict concerning the French-speaking population on the Brussels periphery in the framework of the protection of minorities in Belgium in general. I have thus also studied the situation of the German-speaking minority in Belgium, and have met with all those who claim to represent a minority in Belgium on all levels, including French- and Dutch-speakers in Brussels and in the communes with and without linguistic facilities on both sides of the language border, French-speakers in Flanders proper, Dutch-speakers in the Walloon Region, the Walloons and the “Luxembourgophones”.

15.        I think it is important, at this point, to underline that this report does not concern solely the six communes with facilities on the Flemish periphery of Brussels. This report is more fundamental and far-reaching, and should not be reduced by either side of the dispute to the situation in these few communes – this report concerns the whole of Belgium, including “deep” Flanders, the Walloon Region and the German-speaking Community. This is one of the reasons why the exaggerated examples given by some Flemish parliamentarians (related to the alleged “migration” of some individual French-speaking Belgian citizens to the Flemish periphery of Brussels) are so beside the point.

C.       Are there minorities in Belgium in need of protection?

16.        This brings us to the central question: are there minorities in Belgium, and if so, are they in need of the protection afforded by the Framework Convention for the Protection of National Minorities?

17.        In Recommendation 1492 (2001) on the rights of national minorities, the Assembly condemned “the denial of the existence of minorities and of minority rights in several Council of Europe member states and the fact that many minorities in Europe are not afforded adequate protection.” The Assembly singled out Belgium as one of the countries which “have significant minorities, which ought to be protected, and whose rights are not officially recognised.”

The positions in Belgium

18.        Following the adoption of the “Lambermont” accords of state reform, the Belgian Minister of Foreign Affairs signed the Framework Convention on 31 July 2001. He entered the following reservation1:

19.        So far, the inter-ministerial conference of foreign policy has not defined the notion of national minority, but decided end of February 2002 to set up an expert committee (composed of 12 experts) to study the question. In Belgium, the opinions on this matter are, in fact, sharply divided. Seven experts2 who were asked by the government in 1996 to define the potential impact of the Convention could not agree on the major issues, the dividing line being the three Flemish experts on the one hand, and the three French-speaking and one German-speaking expert on the other hand.

20.       On some matters, the experts agreed (incidentally, the Venice Commission came to the same conclusions on these points later): First, while Belgium as a state remains accountable under international law for the implementation of the Framework Convention, Belgium’s communities and regions are equally bound by the provisions of the treaty internally. Second, Belgium cannot formulate reservations which would be incompatible with the object or aim of the Framework Convention (in accordance with the Vienna Conventions). Third, the Framework Convention applied to groups of persons who were “at risk of being dominated by one or more other groups” – the concept of “minority” was thus not a purely numerical one.

21.       However, the experts disagreed on whether and which national minorities existed in Belgium. The three Flemish experts came to the conclusion that, in view of the power-sharing arrangements between the Dutch-speakers and the French-speakers at the federal level, only the German-speakers could be considered to be a national minority, if they wished to be considered as such. The French-speaking experts and the German-speaking expert concluded that the German-speakers and the French-speakers of Belgian nationality “undeniably” constituted national minorities wherever they may be on Belgian territory. They denied that French-speakers found themselves in a dominant or co-dominant position with Dutch-speakers on the federal level, despite the fact that they were “effectively protected”. Finally, they concluded that, if a broad definition of the concept of national minority was applied, even the Dutch-speakers could be considered as a minority group wherever they may be on Belgian territory. They underlined that whether a person belonged to a minority group did not depend on the place of residence of that person.

22.        The Flemish government and parliament claims that the only minority in Belgium is the (small) German-speaking minority, and only within its own Region (German-speaking). The official Flemish position is reflected in its brochures:

      “When one looks at the whole system of agreements, balances and protective measures, it is clear that in the federation of Belgium neither French nor Dutch-speaking inhabitants can be regarded as a national minority group. One can only speak of such a minority if two conditions are met: the population group must be a minority group in both number and strength. A population count tells us that the French-speaking inhabitants in Belgium are in the minority. But as we have seen, there is a political balances of power which prevents one group of the population from dominating the other.” 33

23.        The position of the parliaments and governments of the French community and the Walloon Region can be summarised as follows:

The German-speakers are also recognised as a national minority on federal level according to this line of thought. The German-speaking government and parliament support this position.

24.        In fact, one of the highest Belgian courts, the Court of Arbitration, has already ruled on the existence of minorities in Flemish communes with facilities for French-speakers. In other words, despite the rhetoric of both sides involved in the Belgian language dispute, the existence of – at the very least – a French-speaking minority in the Flemish communes with facilities for French-speakers is no longer in doubt.

The opinion of the Venice Commission

25.        The Venice Commission has analysed the question on possible groups to which the Framework Convention for the Protection of National Minorities could be applied in Belgium. The Rapporteurs of the Venice Commission found that, in order to examine the scope of application ratione personae of the Framework Convention in a country, regard must first be had to the object and purpose of the Convention, that is to achieve respect for the ethnic, cultural, linguistic and religious identity of persons belonging to a national minority as well as appropriate conditions enabling them to express, preserve and develop this identity.

26.        The Venice Commission found that, while - in the absence of a definition of “national minorities” in the Framework Convention, Parties to it must examine the personal scope of application to be given to it within their country and dispose of a certain margin of appreciation in this respect in order to take the specific circumstances prevailing in their country into account - this margin of appreciation, must be exercised in accordance with the general principles of international law and the fundamental principles set out in Article 3 of the Framework Convention, as well as with the international practice in this field.

27.        Belgium is a federal state made up of three communities, three regions, and four linguistic regions (three monolingual, one bilingual). Competence for many policy areas has – by common accord – been transferred to different federal entities of the Belgian state. Belgium’s communities and regions are invested with legislative power in many areas which have the potential to affect minorities. Sole authority to legislate by “decrees” having the force of statute throughout the territory for which they are responsible lies with the communities and the regions. Decrees may repeal, amplify, amend or replace prevailing statutory provisions in the allocated areas of responsibility; and are placed under the sole control of the Court of Arbitration. The communities have responsibility for cultural affairs, education, personalised services, and the use of languages in administrative matters, education, and industrial relations between employers and their employees. The responsibility of the regions includes inter alia land use and planning, environment, water and agricultural policy, housing, economic and employment policy, housing, public works and transport. Responsibility (in particular, responsibility for policy implementation) in some areas has, in fact, even been delegated further, to the level of the communes.

28.        Because of this transfer of power, the Framework Convention for the Protection of National Minorities would have to be ratified by all seven competent parliamentary assemblies (including the Flemish parliament and the parliaments of the French-speaking and German-speaking Communities), for it to come into effect in Belgium.

29.        It is thus in the context of the decentralisation of the Belgian state, and the wide powers especially of the three communities in the area of minority rights, that the existence of national minorities in Belgium at all levels must be assessed. According to the Venice Commission, “this approach is in line with the spirit of the Framework Convention, which itself foresees cases in which a minority becomes locally a majority, and stipulates that this local majority will have to ‘respect the rights of others, in particular those of persons belonging to the majority’ … the Framework Convention… does not set out any territorial delimitation of the notion of minority and, to the contrary, expressly provides for protection of sub-minorities“.

30.        In the view of the Venice Commission, the protection afforded by the Framework Convention is designed to avoid that a group of persons, numerically inferior to the rest of the population, be obliged to yield under pressure of the majority of the population and surrender its main religious, linguistic, cultural and historical features.

31.        According to the Venice Commission, a numerical minority therefore does not require the protection of the Framework Convention unless it finds itself, de iure or de facto, in a sub-dominant position. Thus, the Venice Commission concluded that, in the light of the distribution of powers at the state level, French-speakers did not constitute a minority in need of protection of the Framework Convention at that level, despite representing approximately 40% of the population. The German-speaking community, however, was not put on an equal footing with the French-speaking and Dutch-speaking communities, and were accordingly to be considered a minority at the state level.

32        The Venice Commission went on to explain that the Framework Convention sets out undertakings on the part of states. States Parties commit themselves to ensuring that an adequate protection of minorities be achieved on their territory; they are thus responsible for ensuring that the various domestic institutions or bodies that are competent in the pertinent fields respect the obligations set forth in the Framework Convention. In a context of decentralization of powers, of downward transfer of political powers, an increasing number of decisions affecting the rights of persons belonging to national minorities is taken at the local level, not at the state level. In case of territorial sub-divisions, the state might even lose competence in those fields. While it remains accountable towards the Council of Europe for the respect of its international commitments, it must take this decentralization of powers into consideration when determining the scope of application of the Framework Convention.

33        According to the Venice Commission, in decentralized environments, there may be situations where a group that is not a minority in the sense of the Framework Convention at the state level becomes such a minority at a sub-state level and, by operation of the decentralized democratic functions, finds itself subjected to the dominant position of another group (that can be a minority at the state level). The Framework Convention had itself foreseen cases in which a minority becomes locally a majority, and stipulated (Article 20) that this local majority will have to “respect the rights of others, in particular those of persons belonging to the majority”.

34       In view of the above, the Venice Commission considered it necessary to assess the existence of a minority in the sense of the Framework Convention at the level where it actually needed protection, including at the regional level.

35       The Venice Commission thus concluded that, “at the regional level, having regard to the distribution of competences between the various regions and communities and of the territorial division of the country, the Commission considers that French-speakers in the Dutch-language Region and in the German-language Region may be considered as a minority in the sense of the Framework Convention, as may Dutch-speakers and German-speakers in the French-language Region.”

The Rapporteur’s opinion

36       I fully agree with the well thought-out and intellectually convincing arguments and the conclusions of the Venice Commission on which population groups constitute minorities in Belgium in the sense of the Framework Convention.

37        On the basis of the definition of the term “national minorities” in Recommendation 1201 (1993), I would come to the same conclusion. The longstanding, firm and lasting ties of the French-speakers with Belgium, and indeed with Flanders, cannot be doubted. Neither can the firm and lasting ties of Dutch-speakers with Belgium, and indeed with Wallonia, be put into question.

38.       is true that the Framework Convention does not define the term “national minorities”. However, the term can be defined according to the acknowledged rules of teleological interpretation. The Venice Commission has defined the term with great diligence, “sine ira et studio”. Besides, it is obvious that the aim of the Framework Convention lies in protecting national minorities in the sense of historical, traditional minorities which have deep and firm ties with the state they live in. The term “national” is thus used to differentiate between traditional minorities and “new” minorities – minorities which result from immigration. Denying national minorities protection on the regional level would mean undermining the aim of the Convention, which is to protect minorities on the whole territory of a state, whether they are concentrated or dispersed. This becomes obvious when one reads Article 20 of the Convention and the explanatory report thereto, which explicitly refers to the regional level.

39.       When one keeps in mind the wide powers of especially the communities - cultural affairs, education, personalised services, and the use of languages in administrative matters, education, and industrial relations between employers and their employees – it is clear that the protection afforded to, for example, the French-speakers at federal level, does not extend to the field of competence of the communities. In view of the broad downward transfer of powers in Belgium, one cannot deduct from institutionalised co-dominance on a national level that co-dominance exists also on a regional or community level.

40.       Flemish parliamentarians often claim that the French-speakers in Flanders, and in particular those living in Flemish communes on the Brussels periphery, are a “new” minority, recently established in the region, and comparable to, for example, foreign immigrants like Turks in Germany or Algerians in France, and so forth. This claim is false, in more ways than one. The Assembly has always made very clear that historical minorities and minorities resulting from immigration cannot be compared. It is for this reason that the Assembly, having regard to its Recommendation 1492 (2001) on the rights of national minorities, instructed its Committee on Legal Affairs and Human Rights, for report, and its Committee on Migration, Refugees and Demography, for opinion, in January 2001 to study the situation and the rights of new minorities originating from immigration.

41.        First, the Belgian population censi (which included, until 1947, data on language) prove that even in communes which later became “Flemish” communes on the Brussels periphery, many communes already had percentages of (exclusive) French-speakers in the region between over 20% and up to 46% in 1947; not to speak of the deeply rooted French-speaking communities in such Flemish cities as Antwerpen (Anvers), Brugge (Bruges), Gent (Gand) or Oostende (Ostende). Second, French-speakers in Belgium cannot be considered in the same way as foreigners – after all, they have always had Belgian citizenship, have always and still do constitute 40% of the population of that state, and have been living there since its creation more than 170 years ago. Third, in a centralised, unitary state (which Belgium was until 1980), one cannot speak of “migration” from one region to another. Immigration across national borders cannot be put on par with migration within one state.

42.        The Assembly should thus find that the following groups are to be considered as minorities in Belgium within the context of the Framework Convention: at state level, the German-speaking community; at regional level, the French-speakers in the Dutch-language Region and in the German-language Region, and the Dutch-speakers and German-speakers in the French-language Region.

D.       Possible effects of ratification of the Framework Convention by Belgium

43.        What exactly is the Framework Convention’s aim? The Framework Convention is to provide guidelines, meant to inspire a state’s legislator in setting its policy towards national minorities. The political commitment of signing and ratifying the Convention is to be transformed, to the greatest possible extent, into legal obligations. The Framework Convention is associated with a control-mechanism, but one of a political, not a judicial nature. Thus, it would not be possible for an individual to invoke the Framework Convention before the European Court of Human Rights, for example (although some provisions might be invoked before national courts to a certain degree). The Framework Convention is not self-executing, either.

44.        This does not mean, however, that simply because the control-mechanism is of a political, not a judicial nature, it has no teeth. States do bind themselves contractually when they ratify the Framework Convention, and the Committee of Ministers holds states parties to their obligations under it. However, the constitutional order of the Kingdom of Belgium can only be changed by the mechanisms foreseen in Belgium’s Constitution (i.e. requiring special majorities, etc.). The simple ratification of the Framework Convention would not change Belgium’s constitutional order.

45.        For the Framework Convention to come into effect in Belgium, it would have to be ratified by all seven competent parliamentary assemblies (federal Senate, federal Chamber of Representatives, Flemish parliament, parliaments of the French-speaking and German-speaking Communities, Walloon parliament, Brussels-Capital parliamentary assembly). Judging by the reservation entered by Belgium upon signature of the Framework Convention, Belgium will want to accompany its ratification by (at least) a declaration.

46.        Such a declaration could enumerate which groups the Framework Convention would be applied to in Belgium, in accordance with the decision reached by the Belgian inter-ministerial conference of foreign policy. I would hope, of course, that the decision of this conference would be inspired by the conclusions of the Venice Commission. This would avoid the problems that could be posed by a different declaration (e.g. one modeled on the current Flemish position), which might seek to exclude from the Framework Convention’s scope of protection a group of persons that, although not belonging to a minority at the state level, was threatened with losing its identity by operation of democratic institutions at the regional level. Such a declaration would probably have to be understood as a reservation incompatible with the object and purpose of the Framework Convention itself, within the meaning of Article 19 (c) of the Vienna Convention on the Law of Treaties.

47.       As a Swiss national, I have often been confronted with claims that the reservation which Belgium made upon its signature of the Framework Convention was modelled on the Swiss declaration to the same. This is an erroneous interpretation of both the Belgian reservation and the Swiss declaration, and is based on the ignorance of the difference between a reservation and a declaration in international law. In fact, in accordance with the Vienna Convention on the Law of Treaties, a reservation means “a unilateral statement, however phrased or named, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state” (Article 2.1.d.). In contrast, a declaration does not seek to limit or modify the legal effect of a treaty, but merely to clarify the sense a state gives to certain of the treaty’s provisions, and thus does not have any effect on the contractual obligations of the state.

48.        In addition, any declaration made in connection with the Framework Convention must be interpreted in the context of the declaring state’s national legislation upon which it is based5. Thus, for example, in Switzerland, many of the cantons’ constitutions explicitly guarantee the protection of minorities living in those cantons. It is up to the minorities themselves to declare themselves a minority – they are then automatically recognised as such. The Swiss model is also demographically flexible, i.e. it is recognised that new minorities can come into existence due to population movements. Needless to say, this is a far cry from the very rigid Belgian legislation on the matter.

49.        I have also often been confronted with the claim that the Framework Convention was only designed for the specific conditions in Central and Eastern European countries. Again, this interpretation is erroneous. The Framework Convention is fully applicable in all the states which have ratified it so far, i.e. the vast majority of Council of Europe member states (34 states to date). As an example of the protection granted under the Framework Convention, Italy might be chosen, which now recognises its German-speaking minority.

50.        Assuming that Belgium decides to follow the recommendations of the Venice Commission, and accompanies its ratification with a declaration according to which only the German-speakers constitute a minority on the state level in the sense of the Framework Convention, but that the French-speakers in Flanders and in the German-speaking region, and the Dutch-speakers and the German-speakers in the French-speaking region also constituted such a minority, what would the effect be on the Kingdom of Belgium?

51.        The Kingdom of Belgium already has a system in place which is designed to protect certain minority groups. Thus, at the state level, there is a dualist structure for Dutch- and French-speakers, and the Constitution requires a “special majority” (two-thirds of the vote in both Chambers (Chamber and Senate) subject to a quorum of the two language groups and a majority of each language group in each Chamber) for a large number of laws. In addition, in some 27 communes6 people belonging to a different linguistic group than that of the relevant Region have been granted special status (linguistic facilities), i.e. they have the right to request that in their dealing with the authorities a language other than that of the region be used. As of 1988, these linguistic facilities can only be changed by a federal law with a special majority.

52.       Many French-speakers consider that this system of protection is insufficient. They claim that the Flemish authorities interpret the linguistic facilities too narrowly (i.e. through the Ministerial circular letters mentioned in Chapter B), and explain that, outside these communities, there is no protection whatsoever for French-speakers in unilingual Flanders. Most Dutch-speakers consider that the current level of protection granted to French-speakers is sufficient, and are loathe to see it enlarged, lest French become once more (like in the 19th century) the dominant language in the country (including in Flanders). Most Belgians seem to think that applying the Framework Convention to all those groups of people in Belgium that the Venice Commission recommends, would entail granting a higher level of protection to some of these groups (in particular, in Flanders and in the Walloon Region) than that currently afforded, and would thus necessitate significant changes in the country’s constitutional set-up.

53.       The exact effect of a ratification by Belgium (accompanied by a declaration along the lines of the one recommended by the Venice Commission), would have to be studied in great detail, and cannot thus be exposed here in just a few lines. However, it does seem to me that both the hopes French-speakers invest in the effect of such a ratification, and the fears that Dutch-speakers associate with it, are overdone.

54.       Of particular relevance in the Belgian case could be Article 5.1., Article 8, Article 10.1. and 2, Article 11, Article 13, Article 14.1., and Article 15 of the Framework Convention. Their implementation, in the current Constitutional framework of Belgium, might mean that Flanders would have to adopt a less restrictive interpretation than it currently implements7. For example, the compliance of the Flemish ministerial circular letters with the provisions and the spirit of the Framework Convention might have to be reviewed. However, many of the Flemish policies are only semi-official8, so that I doubt that the Belgian Constitutional Framework will have to be overhauled in a major way.

55.        In fact, those complaints of French-speakers in Flanders that I have found to be most grounded are those of a cultural nature. Outside the few communes with linguistic facilities, French does seem to be treated in Flanders like a foreign language, not a Belgian one, and French-speakers accordingly find it very difficult to keep up a French-speaking cultural life in Flanders (this concerns private, but officially recognised, libraries as much as French-speaking amateur theatre-groups, slide-shows, and all other cultural activities). The main reason for this is, in my view, the absence of an accord on cultural co-operation between the French- and the Dutch-speaking communities. (It is ironic that such an accord does exist, for example, between the French Republic and Flanders). Many French-speakers feel that the fact that the French-speaking Community has been kept from subsidising French-speaking cultural life in Flanders through a recent decision of the Court of Arbitration, is also to blame. Whether ratification of the Framework Convention and recognition of the French-speakers in Flanders as a minority would change this is doubtful9. I thus feel that the early signing of a cultural co-operation accord between Belgium’s main two language communities would be especially important.

56.        Flemish parliamentarians repeatedly voiced the fear during the April part-session 2002 that ratification of the Framework Convention along the lines of the proposals of the Venice Commission and the Committee on Legal Affairs and Human Rights would lead to Flanders having to accord wide rights to French-speaking “newcomers” in Flanders (such as the opening of French-language schools), even if they were very small in number. First of all, as I have already explained above, French-speakers in Flanders cannot be considered “newcomers”, the same as Dutch-speakers in Wallonia.

57.        Second, the Framework Convention does not, in fact, contain a right to schooling in a minority language. Article 14 reads:

      1       The Parties undertake to recognise that every person belonging to a national minority has the right to learn his or her minority language.

      2       In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the Parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language.

      3       Paragraph 2 of this article shall be implemented without prejudice to the learning of the official language or the teaching in this language.

58.       In other words, French-speakers living in Flanders outside of the communes with facilities would not have the right to schooling in their language, even if the Framework Convention should be ratified by Belgium in accordance with the Committee’s recommendations.

59.        Third, the Belgian Constitution and language laws already guarantee the right to primary school education in one’s mother tongue for the different protected minorities in the 27 communes with linguistic facilities (and only there), provided that there is enough demand for the opening of such a school to be feasible. The Belgian system of minority protection thus, in this field, goes further - for the 27 communes concerned - than required by the Framework Convention.

60.        Regarding the schooling question, the Assembly should, however, once again – as in 1998 - call on the Kingdom of Belgium to fully implement, without further delay, the judgment of the European Court of Human Rights of 23 July 1968, which inter alia stipulated that children of parents not resident in the six communes with linguistic facilities in the Brussels periphery should nevertheless be allowed to attend the French-speaking schools in these communes.

61.       In any case, it should also be kept in mind, that the proportionality principle is fundamental in the application of the Framework Convention. In other words, even if there was an obligation for school instruction in one’s mother tongue included in the Convention – which it is not – no-one would oblige a French-speaking commune to open a Dutch-speaking school (or vice-versa) for three pupils – this would be disproportionate. The Framework Convention is not a cookbook containing ready-made recipes, it is a legal treaty which can fully show its beneficial effects only when applied in a spirit of respect and tolerance in the framework of the rule of law.I regret that some Flemish politicians and journalists keep returning to this type of “problem”, which – in reality – does not exist. One cannot avoid the impression that this type of “problem” is put forward in order to draw attention away from the real problems, and to score “easy points” with a potential reader who is not that well-informed about Belgian realities. The vast majority of Council of Europe member states – many of which have or had far graver “problems” with their national minorities than Belgium - have signed and ratified the Framework Convention, and successfully apply its provisions. One should expect that a country like Belgium, which has admirably managed to avoid violence between its majorities and minorities, would be able to do likewise.

E.       Other groups claiming minority status

62.        I have been in contact with representatives of two other language groups who claim minority status: the “Walloon-speakers” and the “Luxembourgophones”10.

63.        According to their representatives, 600.000-800.000 people in Belgium speak (or at least understand) Walloon, despite what they claim to be “two centuries of persecution” (by French-speakers). Walloon, according to them, is a language made up of more than 70.000 words, and is not a mere dialect. They claim to be discriminated against in that many Belgians seem to think Walloon inferior to French, and ridicule their language. Their aim is not to replace French by Walloon, but to introduce one hour of Walloon tuition in every French-language school, so as to allow the language to survive and to gain new respect.

64.        The “Luxembourgophones” are concentrated in the region around Arlon (which borders on the Grand Duchy of Luxembourg). Before Belgium was created (more than 170 years ago) this region was a part of the Luxembourg, and – according to the representatives of the “Luxembourgophone” movement – has kept a special linguistic character. The aim of the movement is to allow the use of “Luxembourgois” in Kindergarten, and to introduce bilingual German-French primary schools in the region.

65.        It is not for me to judge whether “Walloon” and “Luxembourgois” are regional languages or dialects. However, there is another important Council of Europe legal instrument that might be able to afford appropriate protection to these communities: the Charter for Regional and Minority Languages. Its signature and ratification by the Kingdom of Belgium should be strongly recommended.

F.       Conclusions and recommendations

66.        The Assembly already stated in its Recommendation 1492 (2001) on the rights of national minorities that adequate protection for persons belonging to national minorities and their communities is an integral part of the protection of human rights. It is thus obvious to me that all member states of the Council of Europe have an obligation to safeguard the minimum rights of national minorities, as set out in the Framework Convention for the Protection of National Minorities. In fact, for several years now, a state’s willingness to sign and ratify the Framework Convention, and to apply Recommendation 1201 (1993) on an additional protocol on the rights of national minorities to the European Convention on Human Rights, has been a precondition for the granting of membership of the Council of Europe. The founding states of the Council of Europe thus bear a particular responsibility to fulfil the obligations they expect new member states to adopt.

67.        Protocol 12 to the European Convention on Human Rights on the general prohibition of discrimination can also play an important role in this field, as it will enable individual claimants to have their right not to be discriminated against judicially enforced, once the Protocol enters into force.

68.        The Assembly should therefore welcomes the signature of Protocol 12 on 4 November 2000 and of the Framework Convention on 31 July 2001 by the Kingdom of Belgium, even though it is regrettable that the Belgian authorities deemed it necessary to accompany the signature of the latter by a very widely-worded reservation.

69.        It is in the interest of the Belgian state that all minorities in the country, at whatever level, be adequately protected. At the request of this Committee, the Venice Commission has analysed which possible groups the Framework Convention could be applied to in Belgium. The Venice Commission concluded that, in the light of the distribution of powers at the state level, French-speakers did not constitute a minority in need of protection of the Framework Convention at that level, despite representing approximately 40% of the population. The German-speaking community, however, not on an equal footing with the French-speaking and Dutch-speaking communities at the state level, should be considered a minority at that level.

70.       The Venice Commission explained that the Framework Convention sets out undertakings on the part of states. States Parties commit themselves to ensuring that an adequate protection of minorities be achieved on their territory; they are thus responsible for ensuring that the various domestic institutions or bodies that are competent in the pertinent fields respect the obligations set forth in the Framework Convention. The Venice Commission concluded as follows: “In a context of downward transfer of political powers, an increasing number of laws and decisions affecting the rights of persons belonging to national minorities are taken at the regional or local level, not at the State level. In case of territorial sub-divisions, the State might even lose competence in those fields of interest for minorities. While it remains internationally accountable for the respect of its commitments, it must take this decentralization of powers into consideration when deciding the scope of application of the Framework Convention. … it is normally the sub-State entities that are competent in respect of the fields of interest to minorities: to exclude the applicability of the Framework Convention at the sub-State level would thus be contrary to the object and aim of the Convention itself.”

71.        The Venice Commission concluded that, “at the regional level, having regard to the distribution of competences between the various regions and communities and of the territorial division of the country, the Commission considers that French-speakers in the Dutch-language Region and in the German-language Region may be considered as a minority in the sense of the Framework Convention, as may Dutch-speakers and German-speakers in the French-language Region.”

72.        On the basis of the definition of the term “national minorities” in Recommendation 1201 (1993), the Assembly would come to the same conclusion. The Assembly should therefore fully agree with the analysis and the conclusions of the Venice Commission and should thus recommend that Belgium ratify the Framework Convention without further delay, ensuring that all minorities are duly recognised as such on the state and regional level. The Assembly should find that the following groups are to be considered as minorities in Belgium within the context of the Framework Convention: at state level, the German-speaking community; at regional level, the French-speakers in the Dutch-language Region and in the German-language Region, and the Dutch-speakers and German-speakers in the French-language Region.

73.        The signature and ratification of the European Charter for Regional and Minority Languages should also be made a priority by the Belgian authorities, as should the ratification of Protocol 12 to the European Convention on Human Rights.

74.        The Assembly should further recommend that effective measures be taken in the Kingdom of Belgium to further tolerance and dialogue between the language groups and their respective cultures. The role of education, of cultural exchange and of the media are thus primordial, especially as regards the implementation of the aims of the Framework Convention. A cultural co-operation accord should thus be concluded between the French-speaking and Dutch-speaking Communities as a matter of urgency.

75.        Finally, the Assembly should call on the Kingdom of Belgium to fully implement, without further delay, the judgment of the European Court of Human Rights of 23 July 1968, which inter alia stipulated that children of parents not resident in the six communes with linguistic facilities in the Brussels periphery should nevertheless be allowed to attend the French-speaking schools in these communes.

APPENDIX I



EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW

(VENICE COMMISSION)

Strasbourg, 12 March 2002       CDL-AD(2002) 1

OPINION

ON POSSIBLE GROUPS OF PERSONS TO WHICH

THE FRAMEWORK CONVENTION

FOR THE PROTECTION OF NATIONAL MINORITIES

COULD BE APPLIED IN BELGIUM

adopted by the Venice Commission,

at its 50th Plenary Session

(Venice, 8-9 March 2002)

on the basis of comments by:

Mr Franz MATSCHER (Member, Austria)

Mr Giorgio MALINVERNI (Member, Switzerland)

Mr Pieter VAN DIJK (Member, Netherlands)

Mr Sergio BARTOLE (Substitute Member, Italy)

By a letter dated 4 October 2001, the Chairperson of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly, Mr Gunnar Jansson, informed the Venice Commission that his committee had decided to ask for the Commission’s opinion on possible groups of persons to which the Framework Convention for the Protection of National Minorities could be applied in Belgium.

A Working Group, composed of Messrs. Franz Matscher, Giorgio Malinverni, Pieter Van Dijk and Sergio Bartole, was set up to study the question. After meeting in Venice on 13 December 2001 and in Brussels on 19 January 2002, the Working Group prepared the following opinion, which was adopted by the Venice Commission at its 50th Plenary Session (Venice, 8-9 March 2002).

1. No definition of national minorities is contained in the Framework Convention for the Protection of National Minorities (hereinafter referred to as “the Framework Convention”). Accordingly, Parties to it must examine the personal scope of application to be given to it within their country. They dispose of a certain margin of appreciation in this respect, in order to take the specific circumstances prevailing in their country into account. This margin of appreciation, however, must be exercised in accordance with the general principles of international law and the fundamental principles set out in Article 3 of the Framework Convention. International practice in this field should also be taken into consideration. In particular, the implementation of the Framework Convention should not be a source of arbitrary or unjustified distinctions.

With a view to preventing any such distinctions from being made, the Committee of Ministers of the Council of Europe, with the assistance of the Advisory Committee on the Framework Convention11, exercises a supervisory role on the personal scope given by each country to the implementation of the Framework Convention.

2. Several States have formulated declarations12 regarding the notion of national minorities upon ratification of the Framework Convention13. Austria, Estonia, Luxembourg, Poland, Switzerland and the “former Yugoslav Republic of Macedonia” have made declarations giving their interpretation of the notion of national minorities. Other States14, such as Denmark, Germany, Slovenia, Sweden and the “former Yugoslav Republic of Macedonia”, have made declarations listing the groups of people to which the Framework Convention applies within their territory. Liechtenstein, Luxembourg and Malta have declared that no national minorities in the sense of the Framework Convention exist in their territory.

3. Belgium signed the Framework Convention on 31 July 2001. Upon signature, it formulated the following reservation:

4. Belgium thus intends and is entitled, within the aforementioned (see para. 1 above) limits, to determine the personal scope of application to be given to the Framework Convention in Belgium. The Venice Commission is willing to provide its opinion on how Belgium should proceed with this task. It will endavour to provide a methodology for doing so, and it will thus carry out an ex ante examination of the Belgian situation. The conclusions reached in the present document only pertain to Belgium.

5. It is the opinion of the Commission that in order to examine the scope of application of the Framework Convention in a given country, regard must be had in the first place to the object and purpose of the Convention, that is to achieve respect for and afford protection to the ethnic, cultural, linguistic and religious identity of persons belonging to a national minority as well as appropriate conditions enabling them to express, preserve and develop this identity15. The protection afforded by the Framework Convention is designed to avoid that a group of persons, numerically inferior to the rest of the population, should be obliged to yield under pressure of the majority of the population – by virtue of the operation of the democratic institutions themselves - and to surrender its religious, linguistic, cultural and historical characteristics.

6. A teleological interpretation16 of the Framework Convention suggests that only those groups of persons that are actually exposed to the risk of being dominated by the majority deserve protection. Numerical inferiority may thus not be a sufficient element, even though a necessary one, for a group of persons to qualify as a “minority” within the meaning of the Framework Convention.

7. In the Commission’s view, it is necessary to exclude from the scope of application of the Framework Convention those groups of persons that, although inferior in number to the rest or to other groups of the population, find themselves, de iure or de facto, in a dominant or co-dominant position.

8. A co-dominant position is typically found in States that are made up of more ethnic groups - one of which will likely be superior in number, if only slightly, to the others - jointly running, on an equal footing, the essential structural elements of the State. In these situations, mechanisms - such as the provision for an equal number of seats for each group in State bodies or institutions - may be provided in the Constitution, whereby the operation of the majority principle is corrected and neutralized in favour of the less numerous group or groups: accordingly, none of the co-dominant groups may be outnumbered within the institutions of the State. No need for protection thus exists for these groups, to the extent that they are in a co-dominant position.

9. The legal status of a co-dominant group is essentially different from that of a protected minority: the latter in fact enjoys certain guarantees against the ordinary operation of the majority rule, but is not put on an equal footing with the majority as regards the running of the State institutions.

10. A further question arises in the context of decentralization of powers: whether the existence of a “minority” within the meaning of the Framework Convention, including the possible situation of co-dominance of a given group, must be assessed at the State level only, or also at the level of the sub-State units.

11. In this respect, it must be recalled that the Framework Convention sets out undertakings on the part of States. States Parties commit themselves to ensuring that an adequate protection of minorities be achieved on their territory; they are thus responsible for ensuring that the various domestic institutions or bodies that are competent in the pertinent fields respect the obligations set forth in the Framework Convention.

12. In a context of downward transfer of political powers, an increasing number of laws and decisions affecting the rights of persons belonging to national minorities are taken at the regional or local level, not at the State level. In case of territorial sub-divisions, the State might even lose competence in those fields of interest for minorities. While it remains internationally accountable for the respect of its commitments, it must take this decentralization of powers into consideration when deciding the scope of application of the Framework Convention.

13. Territorial sub-divisions may result in compactly settled minority groups having greater influence over decisions affecting their members through bringing the institutions of power and the service of state closer to them17. In Belgium, for example, the establishment of decentralised organisational structures was mainly aimed at defusing the language disputes in the country18.

14. In decentralized environments there may be situations where a group that is not a minority as described in paragraph 6 above at the State level may become such a minority at a sub-State level and, by operation of the decentralized democratic mechanisms, become subject to the dominant position of another group (that could be a minority at the State level). It must be stressed in particular that the mechanisms correcting the functioning of the majority rule in favour of a co-dominant group (see para. 8 above) do not necessarily exist also at sub-State levels.

15. In view of the above, the Commission considers that it is necessary to determine whether a group of persons constitutes a minority as described in paragraph 6 above at all levels where this group may actually need protection (in view of the nature of the decentralised functions): at the State, regional and local levels. Indeed, as underlined above (see para. 12 above), it is normally the sub-State entities that are competent in respect of the fields of interest to minorities: to exclude the applicability of the Framework Convention at the sub-State level would thus be contrary to the object and aim of the Convention itself.

16. In the Commission’s opinion, this approach is in line with the spirit of the Framework Convention, which itself foresees cases in which a minority becomes locally a majority, and stipulates that this local majority will have to “respect the rights of others, in particular those of persons belonging to the majority”19.

17. The Commission also refers to the “Outline for reports to be submitted pursuant to Article 25, paragraph 1 of the Framework Convention for the Protection of National Minorities20, which provides for the need to include in the said reports “information on the existence of so-called minority-in-minority situations in certain areas”. Furthermore, the Commission has noted the opinion of the Advisory Committee on the Framework Convention in respect of the Finnish-speaking population living in the province of Ĺland21, that the latter, being a minority-in-a-minority “could also be given the possibility to rely on the protection provided by the Framework Convention as far as the issues concerned are within the competence of the Province of Ĺland”, “taking into account the level of autonomy enjoyed and/or the nature of the powers exercised” by the said Province. It is also worth noticing the declaration made by Switzerland upon ratification of the Framework Convention, according to which “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 [emphasis added]”

18. The Commission is cognizant of the decision of the United Nations’ Human Rights Committee in the case of MacIntyre and others v. Canada, in which the Committee held that minorities within the meaning of Article 27 of the United Nations’ International Covenant on Civil and Political Rights are groups of people that represent a minority at the State level and not at the sub-State level22. The Committee observed that Article 2723 of the Covenant concerns minorities within States and argued principally that the term State or States is always used in the Covenant as referring to States Parties to it.

19. The Commission points out, however, that the Framework Convention, contrary to the interpretation of Article 27 of the Covenant given by the Human Rights Committee in the aforementioned case, does not set out any territorial delimitation of the notion of minority and, to the contrary, expressly provides for protection of sub-minorities (see para. 16 above). Furthermore, if one applied to the Framework Convention the same literal interpretation that was given by the Human Rights Committee to Article 27 of the Covenant, this might lead to the conclusion that a State is not bound to ensure the protection of a minority within a sub-State entity, when this minority is not such at the State level24: a conclusion that is manifestly incompatible with the object and aim of the Framework Convention.

20. Belgium (whose population is approximately 10,200,000 people) is a federal State made up of three Communities26 (a concept which refers to the persons which make them up and to the bond which unites them, in this case language and culture) - the Flemish Community, the French Community and the German-Speaking Community; three Regions27 (based on economic criteria) - the Walloon Region (to which the French-speaking area and the small German-speaking area belong), the Flemish Region (monolingual) and the Brussels Region (bilingual), and four linguistic Regions28 - the French-language Region, the Dutch-language Region, the bilingual Region of Brussels-Capital and the German-language Region29.

21. French-speakers represent approximately 40% of the population, Dutch-speakers approximately 58% and German-speakers approximately 0,7%30.

22. The three Regions, that are exclusively territorial, are superimposed on the Communities. The Walloon Region includes the French- and the German-language Regions. The Flemish Region corresponds to the Dutch-language Region; the Brussels Region to the bilingual Region of Brussels-Capital. The German-language Region is both a part of the Walloon Region (economically speaking) and an autonomous community - the German-Speaking Community (culturally speaking). The three Regions are in charge of matters concerning the environment, transportation, the economy etc.; Communities are competent for linguistic, cultural, educational and some social matters.

23. The competence of the communities is not entirely territorial: the powers of the Dutch-speaking and French-speaking Communities extend not only to the Flemish and Walloon Regions respectively (apart from the small German-speaking Region) but also, concurrently, to the Brussels-capital Region. In the absence of Flemish or French-speaking sub-nationality (legally, there are no Walloon, Brussels, French-speaking, German-speaking or Flemish citizens), the competences of the communities cannot concern categories of individuals and instead derive from the language used in theatres, libraries, schools or even hospitals. Accordingly, Brussels is subject to the competences of the Brussels Region as regards economic matters, and to the concurrent competences of the French-speaking and the Dutch-speaking Communities as regards cultural and some social matters.

24. The Belgian federalism is thus neither entirely territorial (because of this special competence of communities) nor personal (because no sub-nationality is recognised).

25. The use of languages in administrative matters is subject to the rule of unilinguism in the three single-language regions and to the rule of bilinguism in the Brussels-capital region (where Dutch-speakers represent approx. 15% of the population of the nineteen communes31).

26. As of 1962-1963, people belonging to a different linguistic group than that of the relevant Region of certain fringe communes (those contiguous to a different linguistic region) are granted special status (linguistic facilities), i.e. they have the right to request that in their dealing with the authorities a language other than that of the region be used. As of 1988, these linguistic facilities can only be changed by a federal law with a special majority.

27. The communes with linguistic facilities are:

28. In Belgium there are also Italians (approx. 280,000, 75% of which are in the Walloon Region), Moroccans (approx. 105,000, 55% in Brussels), Turks (approx. 63,000, 50% in Flanders) and Spaniards (approx. 58,000, 50% in Brussels), as well as Algerian, Portuguese and Congolese communities.

29. At the level of the central State, Belgium has a dualist structure. The Council of Ministers must be made up of the same number of Dutch-speaking and French-speaking ministers32. For an increasing number of laws, the Constitution requires a “special majority” (two-thirds of the vote in both Chambers (Chamber and Senate) subject to a quorum of the two language groups and a majority of each language group in each Chamber). By requiring a majority of each language group, the Constitution enshrines the idea of joint management, on an equal footing, of the essential structural elements of the Belgian State by the French-speaking and the Dutch-speaking communities.

30. This dualism is also visible through a special procedure, called the “alarm bell”, whereby every law, with the exception of special and budgetary laws, may be challenged. Three-quarters of the members of a language group, either in the Chamber or the Senate, may pass a motion declaring that a bill or proposal threatens to cause serious damage to relations between the communities33. In such a case, the procedure is suspended and the text is submitted to Cabinet (in which the languages are equally represented) that must exercise a kind of political arbitration.

31. Finally, the Belgian Constitutional Court, called the Arbitragehof/Cour d’arbitrage - whose jurisdiction was extended in 1989 from settlement of conflicts of competences between the State, the communities and the regions to all questions relating to compliance with the principle of equality by the various legislatures - is composed of six Dutch-speaking and six French-speaking judges. One Dutch-speaking and one French-speaking preside over the Court on an alternate basis.

32. As regards the German-speakers, they are afforded certain guarantees. In the Senate, for instance, the seventy senators are divided into two language groups (41 Dutch-speakers and 29 French-speakers), while one senator is elected by the Council of the German-speaking community to represent the German-speakers of Belgium. German-speakers, accordingly, appear to be more of a protected minority than a party having to say in determining the policies of the federal State.

33. Brussels is a sort of “inverted mirror image” of Belgium. Where in Belgium the French-speaking group is protected, the Dutch-speaking group is protected in Brussels. The mechanisms of protection are rather similar. For example, in a five-member government of the Brussels Region, Dutch-speakers must have two mandates and one of three positions of State secretary. They are consequently over-represented in the Brussels executive, as are the French-speakers at the federal level, thanks to parity in the Cabinet.

34. The Commission has been requested in particular to give its opinion as to whether Belgian Dutch-speakers, French-speakers and German-speakers may be considered as minorities within the meaning of the Framework Convention. The Commission has not been asked to address the question of the applicability of the Framework Convention to the other groups living in Belgium (see para. 29 above) independently of the citizenship of their members, a question that is not specific to the Belgian situation only.

35. As Belgium is a federation made up of three linguistic groups (“communities”), the Commission needs to apply the criteria outlined above (paras. 9 and 17 respectively). Accordingly, it will establish:

36. French-speakers are numerically inferior to Dutch-speakers (40% as opposed to 58%). Nevertheless, they participate in the management of the State institutions, on an equal footing with the Dutch-speaking (see above, paras. 29-31). Accordingly, in the Commission’s opinion, at the State level they do not constitute a minority within the meaning of the Framework Convention.

37. The German-speaking community, on the other hand, whilst enjoying the same internal autonomy, was not put on an equal footing with the French-speaking and Dutch-speaking communities when the rules were set up governing the composition and functioning of the central State bodies (see para 32. above). German-speakers, accordingly, are to be considered a minority at the State level34.

38. As regards the regional and local level, regard must be had to the distribution of competences between the various regions and communities as well as to the territorial division of the country. In the Commission’s opinion, French-speakers may be considered as a minority in the sense of the Framework Convention in the Dutch-language Region and in the German-language Region, as may Dutch-speakers and German-speakers in the French-language Region35.

39. As regards the Brussels Region, the Commission notes that the Dutch-speaking, although representing only 15% of the population, are granted substantial guarantees and in many respects put on the same level as the French-speaking (see para. 33 above). Accordingly, they seem to be in a co-dominant position and are not to be considered as a minority within the meaning of the Framework Convention.

40. A group of persons that is numerically inferior to the rest of the population, shares common ethnic, cultural, linguistic or religious features and wishes to preserve them is not to be considered as a minority in the sense of the Framework Convention if and to the extent that it finds itself in a dominant or co-dominant position.

41. In situations of decentralization of powers, the existence of a “minority” within the meaning of the Framework Convention and in particular the question of whether a group is dominant or co-dominant must be assessed both at the State and at the sub-State levels.

42. Accordingly, when defining the notion of minorities within the meaning of the Framework Convention, the Belgian authorities should take into account the possible position of dominance or co-dominance of each linguistic group and assess it both at the State and the sub-State levels.

43. The Commission is of the opinion that in Belgium, in the light of the existing equilibrium of powers between the Dutch-speaking and the French-speaking at the State level, French-speakers are in a position of co-dominance and therefore do not constitute a minority within the meaning of the Framework Convention at this level, despite being numerically inferior to Dutch-speakers.

44. German-Speakers, instead, are to be considered as a minority in the sense of the Framework Convention at the State level.

45. At the regional level, having regard to the distribution of competences between the various regions and communities and of the territorial division of the country, the Commission considers that French-speakers in the Dutch-language Region and in the German-language Region may be considered as a minority in the sense of the Framework Convention, as may Dutch-speakers and German-speakers in the French-language Region.

APPENDIX II

Resolution 1172 (1998)1

Situation of the French-speaking population living in the Brussels periphery

1. The communes in the Brussels periphery are characterised by special linguistic conditions. The situation of the French-speaking population living in this periphery must be evaluated in the overall context of Belgium’s constitutional development and the country’s complex linguistic arrangements, resulting from historical evolution and compromises reached after lengthy negotiations.

2. The Belgian Constitution guarantees the optional use of languages current in Belgium; only the law can rule on this matter, and only for acts of the public authorities and for legal matters. Following several successive legislative and constitutional reforms, from the beginning of the 1960s onwards, the Belgian state has evolved from a unitary decentralised structure to a federal state made up of three communities, three regions, and four linguistic regions (three monolingual, one bilingual).

3. Since 1932, as regards linguistic legislation, the territoriality principle has been applied, which stipulates that in monolingual regions, the use of the language of that region is compulsory for all public administrative acts. The 1962-63 language laws demarcated the language boundary still valid today. The same laws also provided for linguistic facilities for the inhabitants of twenty-seven communes contiguous to a different linguistic region, who have the right to request that, in their dealings with the authorities (regarding, for instance, administrative matters, education, and industrial relations between employers and their employees), a language other than that of the region in which the communes are located should be used. Since a constitutional amendment adopted in 1988, the linguistic facilities in these twenty-seven communes cannot be changed except by a federal law with a special majority.

4. Six of the twenty-seven communes with facilities lie on Flemish territory in the Brussels periphery, and have a large share, sometimes a majority, of French-speaking inhabitants. Though the official language in these communes is Dutch, these inhabitants have the right to request that, in their dealings with the public authorities, French be used. This right also extends to written communication, nursery and primary education, industrial relations, and certain court cases.

5. A conflict has arisen involving the six communes with linguistic facilities in the Brussels periphery (and, to a lesser extent, involving the other communes without facilities in the Brussels periphery) about the treatment of the French-speaking inhabitants. The current conflict seems to have been sparked off by an increased tendency of the Flemish government to restrict as far as legally possible the use of the linguistic facilities, with the aim of reinforcing the Flemish, Dutch-speaking character of the region, including the six communes in question. This tendency of the Flemish Government seems itself to originate in a perceived "Frenchification" of the Brussels periphery at its origin, a fear to which some French-speaking politicians have probably contributed.

6. The Parliamentary Assembly considers that this and other linguistic conflicts in Belgium can only be solved if all parties concerned (and especially the politicians) are good-willed, open-minded, tolerant, pragmatic and flexible, willing to further the peaceful cohabitation of different linguistic groups, and refrain from stoking up or using these conflicts for political ends. It notes that, for a long time, the very large majority, both in the population and in the federal assemblies and the federal government, which are responsible for linguistic legislation, has demonstrated the pragmatism and flexibility to foster such peaceful cohabitation.

7. The Assembly reminds all parties concerned that the decisions of the different conflict resolving mechanisms (for example, the Permanent Linguistic Control Commission, the Deputy Governor of the Province of Flemish Brabant) and the courts (for example, the Court of Arbitration, the Council of State, the European Court of Human Rights) should be respected. This also applies to the decision of the European Court of Human Rights of 23 July 1968, inter alia stipulating that children of parents not resident in the six communes with linguistic facilities in the Brussels periphery should nevertheless be allowed to attend the French-speaking schools in these communes.

8. In the particular case of the situation of the French-speaking population living in the Brussels periphery, the Assembly recommends that the Flemish Government:

      i. seek to integrate, but not assimilate, speakers of other languages (especially French-speaking Belgian citizens) in Flanders;

      ii. recognise that members of the French-speaking minority in Flanders have a right to keep their own identity and language, and develop their own culture.

9. The Assembly recommends that the French-speaking inhabitants of the Brussels periphery, and in particular their political representatives:

i. seek to integrate into the region they live in, that is Flanders, by, for example, trying to learn Dutch or improving Dutch language skills, and taking part in the cultural life of Flanders;

      ii. recognise that they live in communes with linguistic facilities situated in a monolingual region, not a bilingual region, and respect the rights of the Dutch-speaking inhabitants;

      iii. cease trying to enlarge the linguistic facilities into de facto bilingualism.

10. The Assembly further recommends that the Belgian Government:

      i. encourage cultural communication and co-operation across the language borders within the Belgian state, for example by concluding cultural co-operation accords between the different communities and the different regions concerning, for example, the setting up of certain bilingual schools in the three communities;

      ii. consider signing and ratifying the European Framework Convention for the Protection of National Minorities.

__________

1. Assembly debate on 25 September 1998 (32nd Sitting) (see Doc. 8182, report of the Committee on Legal Affairs and Human Rights, rapporteur: Mr Columberg).

Text adopted by the Assembly on 25 September 1998 (32nd Sitting).

APPENDIX III

Recommendation 1492 (2001)[1]

Rights of national minorities

1. The Assembly again stresses the importance of effectively protecting the rights of minorities in Europe. It considers that adequate protection for persons belonging to national minorities and their communities is an integral part of the protection of human rights and is the only way in which states can reduce ethnic tensions that might give rise to more widespread conflicts. 

2. The Assembly condemns the denial of the existence of minorities and of minority rights in several Council of Europe member states and the fact that many minorities in Europe are not afforded adequate protection. 

3. The Assembly recognises that 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 in which it lives and to contribute, along with the majority, to the democratic cohesion and pluralism of the states to which it has offered its allegiance.  

4. The Assembly notes that it is essential that the majority becomes more familiar with the languages and cultures of national minorities and that the authorities, with the help of non-governmental organisations, endeavour to make minority cultures known. 

5. The Assembly once more calls on all its member states to safeguard what could be considered to be the minimum rights of national minorities, as set out in the Framework Convention for the Protection of National Minorities (ETS No. 157). It believes that the protection of minorities is essential to the implementation of fundamental human rights, stability, democratic security and peace on the European continent. It also points out that the price to be paid for failing to respond positively to the needs of national minorities may be an escalation in social tension, an increase in the number of asylum seekers, reluctance to reinforce unity between the member states of the Council of Europe and a climate of insecurity which would be detrimental to trade and investment. 

6. Andorra, Belgium, France and Turkey have to date neither signed nor ratified the Framework Convention for the Protection of National Minorities and this means that it cannot take full effect across the continent. These countries have significant minorities, which ought to be protected, and whose rights are not officially recognised. Other countries – Georgia, Greece, Iceland, Latvia, Luxembourg, the Netherlands and Portugal – have signed but not yet ratified the framework convention. 

7. The Assembly recalls its Recommendation 1201 (1993), in which it asked the Committee of Ministers to draw up an additional protocol to the European Convention on Human Rights on the rights of minorities, and expressed a wish for Council of Europe member states to base their legislation and policies concerning minorities on the draft protocol set out in the appendix to that recommendation, which contained the most acceptable definition at European level of a “national minority”. 

8. The Assembly also points out that the political undertakings and standards set out in the draft additional protocol appended to the above recommendation have been raised to the status of legal obligations in friendship treaties drawn up between various member states of the Council of Europe. These treaty obligations might eventually acquire customary status at regional level. 

9. To date, Albania, Andorra, Belgium, Bulgaria, Estonia, Georgia, Greece, Ireland, Latvia, Lithuania, Moldova, Poland, Portugal, the Russian Federation, San Marino, Slovakia and Turkey have neither signed nor ratified the European Charter for Regional or Minority Languages (ETS No. 148). 

10. The Assembly notes that the Charter of Fundamental 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”. 

11. The Assembly recognises that immigrant populations whose members are citizens of the state in which they reside constitute special categories of minorities, and recommends that a specific Council of Europe instrument should be applied to them. 

12. The Assembly therefore recommends that the Committee of Ministers: 

[1] Assembly debate on 23 January 2001 (3rd Sitting) (see Doc. 8920, report of the Committee on Legal Affairs and Human Rights, rapporteur: Mr Bindig, Doc. 8939; opinion of the Political Affairs Committee, rapporteur: Mr Gjellerod, Doc.  8943; opinion of the Committee on Migration, Refugees and Demography, rapporteur: Mr Tabajdi; and Doc. 8941, opinion of the Committee on Culture and Education, rapporteur: Mr de Puig).Text adopted by the Assembly on 23 January 2001 (3rd Sitting).

 

APPENDIX IV

RECOMMENDATION 1201 (1993)[1]

on an additional protocol on the rights of national minorities to the European Convention on Human Rights

 

1. The Assembly recalls its Recommendations 1134 (1990) and 1177 (1992), and its Orders No. 456 (1990) and No. 474 (1992) on the rights of minorities. In the texts adopted on 5 February 1992 it asked the Committee of Ministers :

i.       to conclude as soon as possible the work under way for the elaboration of a charter for regional or minority languages and to do its utmost to ensure the rapid implementation of the charter ;

ii.       to draw up an additional protocol on the rights of minorities to the European Convention on Human Rights ;

iii.        to provide the Council of Europe with a suitable mediation instrument.

2. By adopting the European Charter for Regional or Minority Languages - a Council of Europe convention - on 22 June 1992, the Committee of Ministers gave the Assembly satisfaction on the first point. The charter, on which legislation in our member states will have to be based, will also be able to give guidance to many other states on a difficult and sensitive subject.

3. There remains the rapid implementation of the charter. It is encouraging that when it was opened for signature on 5 November 1992, eleven Council of Europe member states signed it straight away. But one has to go further.

4. The Assembly therefore appeals to member states which have not yet signed the charter to do so and to urge all of them to ratify it speedily, accepting as many of its clauses as possible.

5. The Assembly reserves the right to return, at a later date, to the question of a suitable mediation instrument of the Council of Europe which it has already proposed to set up.

6. It has been advised of the terms of reference given by the Committee of Ministers to the Steering Committee for Human Rights and its Committee of Experts for the Protection of National Minorities and wishes to give its full support to this work and actively promote it.

7. Through the inclusion in the European Convention on Human Rights of certain rights of persons belonging to minorities as well as organisations entitled to represent them, such persons could benefit from the remedies offered by the convention, particularly the right to submit applications to the European Commission and Court of Human Rights.

8. Consequently, the Assembly recommends that the Committee of Ministers adopt an additional protocol on the rights of national minorities to the European Convention on Human Rights, drawing on the text reproduced below, which is an integral part of this recommendation.

9. As this matter is extremely urgent and one of the most important activities currently under way at the Council of Europe, the Assembly also recommends that the Committee of Ministers speed up its work schedule so that the summit of heads of state and government (Vienna, 8 and 9 October 1993) will be able to adopt a protocol on the rights of national minorities and open it for signature on that occasion.

Text of the proposal for an additional protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning persons belonging to national minorities

Preamble

The member states of the Council of Europe, signatory, hereto,

1. Considering that the diversity of peoples and cultures with which it is imbued is one of the main sources of the richness and vitality of European civilisation ;

2. Considering the important contribution of national minorities to the cultural diversity and dynamism of the states of Europe ;

3. Considering that only the recognition of the rights of persons belonging to a national minority within a state, and the international protection of those rights, are capable of putting a lasting end to ethnic confrontations, and thus of helping to guarantee justice, democracy, stability and peace ;

4. Considering that the rights concerned are those which any person may exercise either singly or jointly ;

5. Considering that the international protection of the rights of national minorities is an essential aspect of the international protection of human rights and, as such, a domain for international co-operation,

Have agreed as follows :

Section I — Definition

Article 1

For the purposes of this Convention[2], the expression ‘‘national minority'' refers to a group of persons in a state who :

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

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

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

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

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

Section 2 — General principles

Article 2

1. Membership of a national minority shall be a matter of free personal choice.

2. No disadvantage shall result from the choice or the renunciation of such membership.

Article 3

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

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

Article 4

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

Article 5

Deliberate changes to the demographic composition of the region in which a national minority is settled, to the detriment of that minority, shall be prohibited.

Section 3 - Substantive rights

Article 6

All persons belonging to a national minority shall have the right to set up their own organisations, including political parties.

Article 7

1. 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. This right shall also apply to the use of his/her language in publications and in the audiovisual sector.

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

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

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

Article 8

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

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

Article 9

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

Article 10

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

Article 11

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.

Section 4 - Implementation of the protocol

Article 12

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

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

Article 13

The exercise of the rights and 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.

Section 5 — Final clauses

Article 15

No derogation under Article 15 of the Convention from the provisions of this protocol shall be allowed, save in respect of Article 10 of the latter.

Article 16

No reservation may be made under Article 64 of the Convention in respect of the provisions of this protocol.

Article 17

The States Parties shall regard the provisions of Articles 1 to 11 of this protocol as additional articles of the Convention and all the provisions of the Convention shall apply accordingly.

Article 18

This protocol shall be open for signature by the member states of the Council of Europe which are signatories to the Convention. It shall be subject to ratification, acceptance or approval. A member state of the Council of Europe may not ratify, accept or approve this protocol unless it simultaneously ratifies or has previously ratified the Convention. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

Article 19

1. This protocol shall enter into force on the first day of the month following the date on which five member states of the Council of Europe have expressed their consent to be bound by the protocol in accordance with the provisions of Article 18.

2. In respect of any member state which subsequently expresses its consent to be bound by it, the protocol shall enter into force on the first day of the month following the date of the deposit of the instrument of ratification, acceptance or approval.

Article 20

The Secretary General of the Council of Europe shall notify the member states of the Council of :

a. any signature ;

b. the deposit of any instrument of ratification, acceptance or approval ;

c. any date of entry into force of this protocol ;

d. any other act, notification or communication relating to this protocol.

In witness whereof the undersigned, being duly authorised thereto, have signed this protocol.

Done at Strasbourg this day of , in English and French, both texts being equally authentic, in a single copy, which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member state of the Council of Europe.

[1] Assembly debate on 1 February 1993 (22nd Sitting) (see Doc. 6742, report of the Committee on Legal Affairs and Human Rights, Rapporteur : Mr Worms ; and Doc. 6749, opinion of the Political Affairs Committee, Rapporteur : Mr de Puig).
Text adopted by the Assembly
on 1 February 1993 (22nd Sitting).

[2] The term ‘‘Convention'' in this text refers to the Convention for the Protection of Human Rights and Fundamental Freedoms.

 

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Reference No 2718 of 24 April 2002

Draft resolution and draft order adopted by the committee on 2 September 2002 with respectively 22 votes in favour, 2 votes against and 9 abstentions and 19 votes in favour, 2 votes against and 11 abstentions

Members of the committee: Mr Lintner (Chairperson), Mr Magnusson, Mrs Gülek, Mr Marty (Vice-Chairpersons), Mr Akçali, Mr G. Aliyev, Mr Andican, Mr Arabadjiev, Mrs van Ardenne-van der Hoeven, Mr Attard Montalto, Mr Barquero Vázquez, Mr Bindig, Mr Brejc, Mr Bruce, Mr Bulavinov (alternate: Mr Khripel), Mr Chaklein (alternate: Mr Shishlov), Mrs Christmas-Mřller, Mr Clerfayt, Mr Contestabile, Mr Davis, Mr Dimas, Mrs Domingues, Mr Engeset, Mr Enright, Mrs Err, Mr Fedorov (alternate: Mr Zavgayev), Mrs Frimansdóttir, Mr Frunda, Mr Guardans, Mr Gustafsson, Mrs Hajiyeva, Mr Holovaty (alternate: Mr Shybko), Mr Jansson, Mr Jaskiernia, Mr Jurgens, Mr Kastanidis, Mr Kelemen, Mr S. Kovalev, Mr Kresák, Mr Kroll, Mr Kroupa, Mrs Libane (alternate: Mr Cilevics), Mr Lippelt, Mr Manzella, Mrs Markovic-Dimova, Mr Martins, Mr Mas Torres, Mr McNamara, Mr Meelak, Mr Michel, Mr Mitterrand, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu, Mrs Pasternak, Mr Pellicini (alternate: Mr Budin), Mr Penchev, Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mrs Roudy, Mr Rustamyan, Mr Skrabalo, Mr Solé Tura (alternate: Mrs Lopez Gonzalez) Mr Spindelegger (alternate: Mr Jung), Mr Stankevic, Mr Stoica (alternate: Mr Coifan), Mrs Stoisits, Mrs Süssmuth, Mr Svoboda, Mr Symonenko, Mr Tabajdi, Mr Tepshi, Mrs Tevdoradze, Mr Tokić, Mr Vanoost (alternate: Mr Goris), Mr Volpinari, Mr Wilkinson (alternate: Mr Lloyd), Mrs Wohlwend

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the committee: Ms Coin, Mr Sich, Ms Kleinsorge, Mr Ćupina, Mr Milner


1 The Venice Commission has summarised the difference between a reservation and a declaration on page 2 of its Opinion set out in document CDL/AD (2002) 1.

2 Mr R. Ergec, Mr Y. Lejeune, Mr. L. Neycken, Mr J.-C. Scholsem, Mr. R. Senelle, Mr E. Suy, and Mr J. Velaers.

3 “Like good neighbours; Flanders and the language legislation”, Ministerie van de Vlaamse gemeenshap, Brussel 1998, p. 35.

4 “Note for the attention of Ms Nabholz-Haidegger on the existence of national minorities in Belgium”, Parliament of the French Community , 17 September 2001.

5 In defining the term “national minorities” for Switzerland, my country based itself on the definition contained in Recommendation 1201 (1993) of the Assembly.

6 The communes with linguistic facilities are:

7 For example, it might be difficult to maintain the current Flemish policy of hindering advertisements in the French language (e.g. for cultural events organised in French) to be displayed in public, or of restricting access to public premises (such as regionally or communally owned cultural centres) to Dutch-speakers only.

8 Often, other reasons than the language-factor are given to deny such access, or to put pressure on cafés, restaurants or other private companies not to put up signs, or allow ads, in French.

9 Though it cannot be excluded that Flanders itself might be obliged to subsidise (to a certain extent) minority cultural life in Flanders, i.e. including French-speaking cultural life.

10 I have also received letters and documentation from the “Ligue Wallone de l’Arrondissement de Nivelles”, which claims minority status for the Walloon Region, and asks for it to be granted cultural autonomy. In fact, the Flemish-speaking Community and the Flemish-speaking Region have merged into Flanders, while the French-speaking Community and the Walloon Region have chosen to remain distinct entities with different powers. This seeming thus to be an internal constitutional question, I will not explore this particular claim further.

11 The Advisory Committee assists the Committee of Ministers in monitoring implementation of the Framework Convention by States Parties (see article 26 of the Framework Convention).

12 It may be useful to point out the difference between a reservation and a declaration. “Reservation means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State” (see Article 2 of the 1969 Vienna Convention on the Law of Treaties). An interpretative declaration instead is “a declaration or statement, however phrased or named” made by a State “with a view inter alia to the harmonization of its laws and regulations with the provisions of th[e treaty]”, whereby the State in question does “not purport to exclude or to modify the legal effect of certain provisions of the treaty in their application” to its territory (see Article 310 of the 1982 United Nations Convention on the Law of the Sea). Through such declaration, in practice, a State explains what particular interpretation it intends to give to certain provisions of the treaty. However, as to the relativity of the distinction between “reservations” and “interpretative declarations”, see European Court HR, Belilos v. Switzerland judgment of 29 April 1988, Series A no. 132, §§ 40 ss.

13 For full reference, see the website of the Council of Europe’s Legal Affairs/Treaty Office, at: convention.coe.int.

14 Certain States (such as “the former Yugoslav Republic of Macedonia”) have made more than one declaration.

15 See the preamble to the Framework Convention.

16 See article 31 of the 1969 Vienna Convention on the Law of treaties

17 See A. Eide, « Minorities in a decentralized environment”, background paper for the UNDP International Conference on Human Rights, Yalta, September 1998.

18 See Eur. Court HR, Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, § 56.

19 See Article 20 of the Framework Convention.

20 Adopted by the Committee of Ministers on 30 September 1998 at the 642nd meeting of the Ministers’ Deputies

21 Opinion concerning Finland, adopted on 22 September 2000. See Doc CM (2000) 177 of 23 November 2000

22 See the decision of the United Nations Human Rights Committee of 31 March 1993 in the case of McIntyre and others versus Canada, § 11.2 Revue universelle des droits de l'homme, 28 September 1993, vol. 5. pp. 156-164.

23 Article 27 of the Covenant reads: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”

24 See the separate opinion of Ms Elizabeth Evatt and of Messrs Nisuke Ando, Marco Tullio Bruni Celli and Vojin Dimitrijevic in respect of the decision of the Human Rights Committee in the aforementioned case of McIntyre and others v. Canada.

25 For fuller reference, see J-C Scholsem, “The situation in Belgium”, in: Local self-government, territorial integrity and protection of minorities, Collection Science and Technique of democracy No. 16, 1997, pp. 68-76, CoE

26 See Article 2 of the Belgian Constitution.

27 See Article 3 of the Constitution.

28 See Article 4 of the Constitution.

29 A number of dialects (Gaumais, Champenois, Walloon, Picard, Letzebuerguesch, Ripuarish, Rhine-Maas Frankish, Brabantish, West Flemish, Marollien) are spoken in Belgium.

30 There is no official census in Belgium; accordingly, these figures are just estimates.

31 In the absence of any official census, this figure represents only an estimate. It is based on the circumstance that at the last Regional Council elections, 14,19% of the electors voted for Dutch-speaking candidates, who obtained 11 out of 75 seats (i.e. 14, 67%)

32 with the possible exception of the Prime Minister: see article 99 of the Constitution

33 See article 54 of the Constitution

34 If and to the extent that they so wish: see Article 3 of the Framework Convention

35 see note 24 above