Csaba PÁKOZDY[1]:

Tendencies of Minority Protection in the

Law of the European Union

Though the need for protection of national minorities occurred in the 19th century, its legal frameworks were established only in the first quarter of the 20th Century, after the First World War. In the Middle Age the issue of nationalities did not exist, “it would be more appropriate to say that several “collectivities” coexisted which enjoyed a special status.”^[2] (For example privileges of collective nobility and settlers, who applied their own legal order etc.) Its roots can be found in the agreements made in the course of reformation and counter-reformation (for example Peace of Augsburg, 1555). The efforts for minority protection are in connection with the establishment of nation states. “The nation state construction was imported according to the French model in Central-Eastern Europe, speeded up, and it was introduced without any cohesion, creating new sources of tension.” (…) “As an offset of the Balkan wars, and of the territorial changes caused by the First World War, the modern international legal form of minority protection appeared. At this time the international community, and in its name an international organ controls that the rights of a population as a minority or the rights of an individual belonging to the minority are infringed or not.” ^[3] This organization was the League of Nations, the minority protection system of which did not survive the Second World War, though the jurisdiction of the Permanent Court of International Justice between the two world wars is still normative, and it is referred by the new international conventions too. After World War II, the institutional system of minority protection was not favoured to be established. As far as the United Nations’ human rights’ protection system is based not only upon individual (e.g. International Covenant on Civil and Political Rights of 1966) and but also on collective rights, (e.g. International Covenant on Economic Social and Cultural Rights of 1966) some countries implement minority protection into their legal system upon collective rights, others on individual rights. Among the ratified treaties the European Convention on Human Rights (1950) is one of the most important ones. Its article 14 says: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” (The Additional Protocol about the general prohibition of discrimination signed on 4 November 2000 can be mentioned here too) or the International Covenant on Civil and Political Rights, in which Article 27 says: „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.” In minority protection, international law has got very few chances to do anything, because the will of states do not always harmonize in the course of ratification of the treaties. This is due to the historical-ethnical-political characteristics. However international law makes it possible to conclude bilateral agreements, of course by consensus. The approach of the problem of national minorities has been changing since the beginning of the ’90s, the reason of which shall be the wars in the ex-Yugoslavia and not at least the series of bloody ethnic cleansing, which alarmed the international community that ignoring problems does not solve minority issues. After the Cold War, the unsolved national, ethnical, minority problems came to the surface. At the beginning of the ’90s, first of all in the Council of Europe several international treaties were concluded (European Charter for Regional or Minority Languages 1992, Framework Convention for the Protection of National Minorities 1995), and bilateral agreement was made, for example the Treaty on Understanding, Cooperation and Good Neighbourliness between Romania and the Republic of Hungary (1996), of which aim or content dealt with the national minorities protection. The UN General Assembly Resolution 47/135 on 18 December 1992 about the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities and the Arbitration Commission of the Conference on Yugoslavia (commonly known as Badinter Arbitration Committee) laid down: “respect of rights of peoples and minorities (…) is imperative norm of the general international law” ^[4], and minorities have got the right to make their “identity recognised”. ^[5] Besides all these also not contractual, i.e. soft law documents, recommendations were created, among which the Council of Europe Parliamentary Assembly Recommendation 1201 (2003) says that either local or autonomous administration, or special status could be granted to the minorities. The main international treaties of minority protection influenced considerably the legal development of the European Community and the European Union. First of all the human rights issue refers to the minority protection and it became part of the Union acquis. Today’s development in law forecasts the entire recognition of minority protection, of course with respect to the diversity of ideas.

 The European Union did not want that minority protection should belong to its competency, but as human rights appeared in the Community law, the rights of minorities were emphasized too. From the ’80s, the European Parliament urged for the minority legal protection within the Community, first of all the conclusion of the European Charter for Regional or Minority Languages. In the Union it was thought that the minority protection was regulated by the general prohibition of any discrimination, and it was proved by the jurisdiction of the Court in Luxemburg. By the accession of Middle-Eastern European countries, the issue appeared in concrete legal documents too, first of all among the accession criteria of new states. Among the Copenhagen accession criteria the obligation of “respect and protection of minorities” have already appeared. ^[6] Article 6 of the EU Treaty says, that the Union is based upon the respect of freedom, democracy, human rights and fundamental freedoms; and it is based upon the principles of constitutional state, which principles are common in the member states and which are assured by the Convention on Human Rights; and as they derive from the constitutional traditions of member states, the Union respects them as general principles of the Community law. Lisbon Treaty created a new 1A Article: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” Moreover the Treaty of Lisbon goes further and according to Article 6, Section 3, the above mentioned rights form the basis of the Union only, and they are not followed and respected as the general principles of the Community law, but they form the basis of the Union’s law order. Within the European Council in December 2000 the Charter of Fundamental Rights of the European Union, was adopted which has also been integrated into the Constitution, but till the coming into force of the Treaty of Lisbon it remains a political declaration. Title III Article II-81 mentions within the prohibition of discrimination any discrimination based on (…) any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, (…) shall be prohibited. In Art. II-82 The Union shall respect cultural, religious and linguistic diversity. Article 6, Section 1 recognizes the Charter of Fundamental Rights, which „ shall have the same legal value as the Treaties.” Article 6, Section 2 lays down that “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” As a consequence of all these, the minority protection or in other words the protection of persons belonging to minorities already forms parts of the Union’s acquis through the protection of human rights. Article 13 of the Treaty establishing the EC empowers the Council to fight against discrimination upon race or ethnical origin, and the Council 2000/43/EC directive about equal treatment. The directive gives an explanation about how to interpret discrimination in the Union’s law, how to distinguish direct and indirect discrimination. It recognizes the need for affirmative actions to realise equal treatment entirely in order to fight successfully against discrimination “based upon race or ethnical origin.” ^[7] With regard to minority protection, Preamble 17 is important too: “The prohibition of discrimination should be without prejudice to the maintenance or adoption of measures intended to prevent or compensate for disadvantages suffered by a group of persons of a particular racial or ethnic origin, and such measures may permit organisations of persons of a particular racial or ethnic origin where their main object is the promotion of the special needs of those persons.”^[8] According to this, the European Parliament emphasized in more and more documents (resolutions) the need for a protection of minorities, but it is true that mainly for the newly joined Middle-Eastern European countries. For these states it was precisely prescribed before the accession, sometimes by pointing out the minorities, to take necessary measures, such as assurance of the equality in front of the law, termination of discrimination and segregation,^[9] the adoption of an Act on minorities, respect of subsidiarity and cultural autonomy or the maintenance of higher education of minorities by means of appropriate financial background.^[10] Beside these acts, the work of experts worths mentioning in the activity for a deeper minority protection: proposals, declarations are made, which reflect the opinion and recommendations of the European lawyers, minority researchers, politicians, and representatives of non-governmental organisations. Among these, the conference on 30 and 31 January 2004 organised by the European Commission and the European Academy Bolzano (EURAC) is outstanding, where the Bolzano Declaration on the minority protection in the enlarged European Union was proclaimed. The aim of this declaration is „to address how the importance of the integration and protection of minorities (which are acknowledged at the political level) could be transformed into concrete legal instruments inside the framework of the newly enlarged and re-designed European Union.” (...) „Though neutral in its opinion, the declaration highlights what is politically and legally possible within existing policy and demonstrates how the protection of minorities can be strengthened in a consistent manner.”

Further Reading:

KOVÁCS Péter, International Law and Minority Protection - Rights of Minorities or Law of Minorities? Akadémiai Kiadó, Budapest, 2000

BALÁZS Katalin; ÓDOR Bálint (eds.), A nemzeti és etnikai kisebbségi jogok nemzetközi forrásai-International Sources of National and Ethnic Minority Rights-Les sources internationales des droits des minorités nationales et ethniques. (trilingual edition) Magyar Országgyűlés-Hungarian National Assembly-Assemblée nationale hongroise, Budapest, 2006.

GÁL Kinga, Minority Governance in Europe. Open Society Institute, Budapest, 2002

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW – COMMISSION EUROPÉENNE POUR LA DÉMOCRATIE PAR LE DROIT, The protection of national minorities by their kin-state – La protection des minorities nationals par leur Etat-parent. Council of Europe Publishing, Éditions du Conseil de l’Europe, Strasbourg, 2002