Journal of the International Law Department of the University of Miskolc

Miskolc Journal of International Law

Miskolci Nemzetközi Jogi Közlemények
 

Vol. 5. (2008) No. 2. pp. 86-97.

Dobromir Mihajlov[1]:

The First Ten Years’ Experience of the European Charter for Regional
or Minority Languages and the Framework Convention for the Protection of National Minorities in Europe: Evidence of Good Practice and/or of Problems?

Ten years ago two key conventions of the Council of Europe: the Framework Convention for the Protection of National Minorities (FCPNM) and the European Charter for Regional or Minority Languages (ECRML) entered into force. So a good opportunity is offered for making some remarks and reflections on the functioning of the mechanisms of protection of non-dominant, national minorities and linguistic groups in Europe created by these international instruments.

1.            A brief glance on the antecedents

I am convinced that the really trustworthy retrospective evaluation of the difficulties to create and to implement these conventions may be given by the international organisation which brought them about. It should be stressed that the Language Charter and the Framework Convention are unique in public international law, since except for the Council of Europe no other international organisation has succeeded in developing comparable instruments. So I think no review of the past may miss some of the statements and the conclusions made at the conference organised by the Council of Europe on the occasion of the 10^th anniversary of the conventions[2]. 

Prior to the 1990s there was a taboo in Europe on discussing of questions relating to national minorities, let alone on recognising their rights. According to the dominant opinion individuals had to be protected by guaranteeing human rights rather than groups as such by minority treaties. The reality was that minorities were often exploited for political advantages in bilateral relations and with reciprocal accusations against them being “a fifth column”. In 1991 the Venice Commission prepared a “Proposal for a European Convention for the Protection of Minorities”[3], which gave rise to contradictory political and debating expert opinions. After an unsuccessful attempt to include a specific article relating explicitly to the protection of persons belonging to national minorities in the Second Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms the human rights approach to protection of minorities was changed by a new strategy aiming the protection of their languages. The Language Charter based on Article 14 of the European Convention on Human Rights (1950) which enshrines the principle of non-discrimination, inter alia on the grounds of language or association with a national minority was drafted by the Council of Europe’s Standing Conference of Local and Regional Authorities of Europe in 1988 (CLRAE Resolution 192, endorsed in Parliamentary Assembly Opinion 142). Its final text was adopted by the Committee of Ministers in 1992.

On the other side it was only in 1993, when at the Vienna Summit the Heads of States and Governments of the Council of Europe formulated for the first time the definite political message: “In this Europe which we wish to build we must respond to this challenge: assuring the protection of the rights of persons belonging to national minorities”. The Framework Convention was drafted in 1995 as the legal expression of this political will and after its necessary 12^th ratification it entered into force in February 1998.

Though the Language Charter opposite to the Framework Convention was intended to set off the disadvantages of the notion of minorities, due to the political changes of the 1990s it had a longer run since it was opened for signature in November 1992 and the five ratifications necessary for its entry into force were collected only in March 1998.

At present[4] the Framework Convention is in force for 39 countries (with 4 more signatures without ratifications yet) and the Language Charter bounds 23 countries (with 10 more signatures without ratifications yet). With the exception of Luxembourg which has ratificated only the Language Charter 22 countries are Parties to both conventions. In fact only 2 concerned states (France and Turkey) did not even sign the Framework Convention, and other two (Belgium and Greece) only signed it without ratification. It is worthy to mention that the well-known French official position will be possibly changed, since at present the National Assembly is debating an amendment of the Constitution which would make possible to recognise the existence of regional languages and consequently to ratificate the Language Charter, which has been signed by France in 1999[5]. Except for two small countries it is only Belgium which has not even signed either of the conventions and this gives a further positive proof of the trend that the majority of European states are no more reluctant to deal directly with minorities issues or at least with regional languages.

Besides, a comparative analysis of the texts of the two instruments shows that the Framework Convention is of general character (e.g. it sets out principles relating to persons belonging to national minorities in the sphere of public life, such as freedom of peaceful assembly, freedom of association, freedom of expression, freedom of thought, conscience and religion, and access to the media, as well as in the sphere of freedoms relating to language, education, transfrontier co-operation, etc.) and the Language Charter is specific to it not only in its subject but also in the way of regulation which thus gives reason for logical sequence of their ratification.

According to the evaluation of Maud de Boer-Buquicchio these instruments complement each other to remarkable extent particularly in the provisions pertaining to linguistic minorities. For example, where the Language Charter creates a state obligation to provide for minority language teaching, the Framework Convention complements this by also providing the individual right for members of national minorities to learn their language. If, however, the speakers of a minority language are not considered by a state to be members of a national minority, and therefore cannot benefit from the Framework Convention, they may still enjoy the protection of the Language Charter which applies automatically to all minority languages in a country irrespective of the number of speakers[6]. 

Meanwhile the Warsaw Declaration of the Third Summit of the Heads of State and Governments of the Council of Europe reiterated in 2005 the commitment of the Council of Europe to ”continue our work on national minorities, thus contributing to the development of democratic stability”.

Both conventions set a monitoring mechanism for the evaluation of the adequacy of the their implementation by the Parties. For the majority of the states at present the 3^rd  monitoring cycle is in process. The country reports, the following expert opinions and resolutions of the Committee of Ministers constitute an enormous database which demonstrate excellently the difficulties, the challenges and mainly the degree of political commitment to the implementation of these instruments. Besides the country-related papers a lot of the experiences (and also the cause of their lack) are summarised in reports and commentaries of advisory committees[7]. 

2.            The ten years’ experience as an evidence of some problems

In European dimensions the minority issues have been most profoundly analysed and  examined in details by the Venice Commission in the thematic structure as follows:

- definition of “minority”,

- list of protected minorities,

- recognition of minorities,

- membership of minorities,

- collective rights – rights exercised in community with others,

- affirmative action - positive discrimination,

- direct and indirect discrimination,

- linguistic rights,

- right to local or autonomous representation,

- relations with administrative authorities and participation in public affairs,

- electoral matters[8].

2.1. One of the most discussed actual problems of the conventions is the lack of the definition of the term “minority”. In fact, there still exists no legally binding definition of the term “minority” in international law as whole. The term “minority” is not a unified concept either: UN texts usually address “ethnic, religious or linguistic minorities”[9] and regional European instruments on minority rights use the concept of “national minorities”[10]. The implementation of the Framework Convention is therefore strongly influenced and diversified due to the absence of a definition of the concept of “national minority” which is boosted by the statements (declarations or reservations) of many states made upon signature or ratification, with a view to giving further precisions on the groups to be protected. Most of these declarations contain a definition of the term “national minority” for the purposes of the Framework Convention and/or a list of the groups protected. Approximately half of the statements explicitly mention the citizenship (or the nationality) of the state of residence as a condition for persons belonging to national minorities to enjoy the protection of the FCPNM. A survey of the states which have not submitted any declaration shows that nevertheless some of them indicated in the monitoring procedure they consider the Framework Convention to be applicable also to citizens only[11].

In most cases the statements reiterated the postulates of the legal order of the states and particularly the provisions of their constitutions. Constitutions of many European states in particular, those of countries of Central and Eastern Europe, refer to “minorities”[12] and “minority rights”. In a number of constitutions, the right to preserve and develop one’s ethnic and cultural identity and language is explicitly guaranteed and construed as a foundation stone for minority rights. The right to preserve and develop one’s ethnic and cultural identity and language is often followed by the right to preserve religious identity as well, and special rights regarding education. Several constitutions also provide for the rights of minorities to participate in the public life of the state. Similarly to international instruments the constitutions do not attempt a definition of the term “minority”.

The countries that have adopted specific laws on minorities attempt to define the term “minority” to varying degrees of specificity. These include: Bosnia and Herzegovina, Croatia, Czech Republic, Estonia, Hungary, Moldova, Serbia and Ukraine. Most definitions, which are sometimes accompanied by a list of the groups protected, use as defining characteristics a combination of the following criteria : 

-          citizenship

-          numerical importance

-          territory

-          historic link with the country of residence

-          ethnic, cultural, linguistic, religious or traditional features or characteristics, which are different from those of the rest of the population

-          a will/wish to be considered minority and to preserve and develop their identity, language and culture[13]. 

It should be stressed that law concerning national minorities in the Czech Republic, Estonia, Hungary, Moldova define the term “minority”[14], a list of minorities, although non-exhaustive is included in the preamble of the Constitution of Former Yugoslav Republic of Macedonia and also of Montenegro (2007).

2.2. The Member of the Venice Commission S. Bartole formulates three main problems concerning the implementation of the Framework Convention[15] :

1/ The absence of a definition of the concept of national minorities implies a great deal of uncertainty with regard to the personal scope of application of the protection of the Convention. This issue may be solved only by a future amendment of the Convention which  at present is not on the agenda.   

2/ This uncertainty is increased by the situation that a number of states interprete the convention in a way, that it protects only citizens. The Advisory Committee for the implementation of the FCPNM  in its decision stated that the absence of a definition in the instrument means that citizenship is not required for the application of the Convention, the minority rights are part and parcel of the international protection of the human rights and they have to have a general scope of application. This means that at least the provisions of the FCPNM which have a general relevance (those providing for the protection of human rights which are included in the ECHR, the principles of tolerance and equality, the right to be treated as a person belonging to a national minority ) should be applied to non – citizens even if the concerned States had made a different choice in submitting their declaration[16]. This construction does not exclude in principle the possibility of restricting the scope of application of some minority rights to citizens only (as far as a justification is present: e.g. certainly political and electoral rights can be guaranteed only to citizens), but the choice has to be adopted in compliance with the principles of rationality and proportionality, which means that the States have to avoid unjustified discriminations. Also in some cases the requirement of a long residence in the territory concerned or the existence of working conditions, for instance, can be easily adopted instead of the citizenship to identify the scope of application of the provisions of the protection. Citizenship as a condition for the access to a certain minority right, as opposed to an element of the very definition of national minority, is the object of a case-by-case examination, and can vary in time according to different circumstances[17], consequently compliance with FCPNM requires an article-by-article approach[18].

3/ The third problem is the direct or indirect application of the FCPNM raised by its structure which formulates mainly principles whose application may need an intermediate implementation by national legislation. Bartole proposes the same solution for this issue: the article-by-article approach with the recommendation that when the provisions guarantee only a freedom, they can be directly enforced by the authorities and the judges.

His conclusion is that the monitoring of the implementation of the FCPNM should not cover only the national legislation of the States concerned, but also the administrative and judicial practices in the matter[19].

2.3. After analysing the international and national law(s) on protection of minorities the most important findings and recommendations of the Venice Commission may be summarized as follows:

a) Minority rights should not be regarded as a distinct category, nor interpreted and analysed in isolation from the human rights family. It is rather a combination of classical (universal) human rights - which are often exercised in community with others - and enhanced minority rights/facilities. While the former may occasionally entail positive obligations from the States, the latter undoubtedly and inherently necessitate a concerted, coherent and sustained state action aimed at offering adequate opportunities and providing a range of linguistic and other rights and facilities. Hence due regard must be given to this complex set of rights and obligations in any attempt to determine the exact scope of a state’s action through the use of relevant criteria. 

b)  Positive action is essential to enable persons belonging to minorities to assert their specific identity, which is the objective of every minority protection regime. International standards require such positive action mostly through programme-type provisions which set out objectives. These provisions, which are in principle not directly applicable, leave the States concerned an important margin of appreciation in the implementation of the objectives which they have undertaken to achieve, thus enabling them to take particular circumstances into account.

c) Each State shall secure to everyone within its jurisdiction - including non-citizens – the human rights guaranteed by the general human rights treaties binding upon them, mainly by refraining from undue interference in their exercise. A restrictive declaration entered upon ratification of the FCPNM and/or a general law on minorities containing a citizenship-based definition can in no way mitigate this international obligation.

d) The State's (positive) obligation to take special measures on behalf of minorities and their members needs to be further qualified, especially for those (enhanced) rights and facilities which have resource-implications: it is legitimate for a State to try and circumscribe the circle of those who will directly benefit from its special measures designed to promote the specific identity of minorities. Such special measures are indeed costly and often require the setting up of a heavy infrastructure which is meant to meet lasting needs of the population concerned. States are therefore entitled to ascertain the existence of genuine and effective links with the minority group concerned before deciding to develop special measures[20].

As for the electoral rights of the minorities and especially the issue of dual voting of persons belonging to national minorities related directly to the right to representation at local,  autonomous or national level, and to participation in public affairs, the Venice Commission has drawn very significant conclusions and recommendations in its very recent report adopted after two years’ searching examination and detailed debates[21].

2.4. In my opinion an excellent empiric interpretation of these theoretical conclusions has been done by Thomas Hammarberg Council of Europe Commissioner for Human Rights as follows: “(…) the two treaties (…) constitute two of the strongest pillars of European, democratic societies which, as the European Court of Human Rights has noted, should be characterized by “pluralism, tolerance and broadmindedness”. I think that European societies have always been and will remain inherently pluralistic. What they have not always been is tolerant and broadminded. During a number of my visits and contacts with European, central, regional or local, authorities I have had  the feeling that the latter are not always well prepared to accept and effectively cope with the tensions which unavoidably come along with social pluralism, in other words, with the co-existence of dominant and non-dominant groups or languages.”[22] Hammarberg separately specifies the Roma minority as the one which needs the most effective protection throughout Europe.

On the other side the concrete problem specified by Maud de Boer-Buquicchio[23] is the growing number of the “new minorities” whose rights should be also protected according to the Article 6 of the Framework Convention, irrespective of their ethnic, cultural, linguistic or religious identity [24].

As for the Language Charter it is primarily not an instrument for the protection of minorities but as far as it is focused on the promotion and protection of regional and minority languages, it may be used as essential means for the protection of minorities, bearing in mind that language is one of the most important aspects of their perpetuance. Besides the Charter is the only instrument in the world dedicated to preserving declining indigenous languages. It reflects a desire on the part of the European public to preserve Europe’s linguistic diversity.

3.            Evidence of good practice

When I sought materials proving the positive experiences of the protection of minorities and languages in practice, my first source were the country reports and the following opinions produced during the monitoring process for the evaluation of the adequacy of their implementation by the Parties[25]. Since it proved to be an enormous material to look through, I  restricted my searches to the relationship – if any – between the two conventions and the acquis communautaire and its reflection in the implementation of Union legal order.

Concerning the Language Charter, it is to be noted that a Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, adopted in July 2003, encourages the national and regional authorities “(…) to give special attention to measures to assist those language communities whose number of native speakers is in decline from generation to generation, in line with the principles of the European Charter for Regional or Minority Languages”[26]. Furthermore in its Resolution on “Regional and lesser-used languages – the languages of minorities in the EU – in the context of enlargement and cultural diversity”, adopted on 4 September 2003 (known as the “Ebner Resolution”), the European Parliament recommended to the member states of the European Union and the candidate countries to ratify the Charter if they have not already done so[27].

The FCPNM is not mentioned explicitly by the community law, but both the general principle of equal treatment and certain specific minority rights are part of the general principles of law which the European Court of Justice ensures the respect of by the institutions and the Member States in the scope of application of Union law; and these principles are now embodied in Article 6(1) of the EU Treaty[28] and codified in the EU Charter of Fundamental Rights[29] .

The European Union has not been attributed explicit competences in the field of minority protection, and its legal provisions do not provide explicitly for a recognition of national minorities in general, or of certain national minorities in particular. Nor do they offer a definition of ‘national minorities’ or ‘minorities’ in Union law[30]. Nevertheless I found excellent evidences of anti-discrimination law and other fields which concern minority rights in the Opinion of the Committee of the Regions on the European Parliament Resolution on Protection of Minorities and Anti-Discrimination Policies in an Enlarged Europe (2006/C 229/09)[31]. It does not refer to the two conventions either,  but the documents of the European Union cited by it declare that respect of fundamental rights, cultural and linguistic diversity is a profoundly European asset thus the measures proposed by this Opinion seem to serve purposes analogous to those of the conventions. The measures are porposed in the fields as follows:

a) promoting diversity and intercultural dialogue,

b) using and promoting standards and plans for equal treatment,

c) access to language learning, education and the job market,

d) access to social housing and public services,

e) active access to political and civil life,

f) promoting data collection at regional and local level.

The real value of the Opinion is the annexed initial non-exhaustive catalogue of best practice at local and regional level which proposes positive actions aiming at ensuring a higher level of protection for members of minorities already taken in several cities, municipalities and regions, based on the principle of a multicultural society and awareness of the EU's richness and diversity.

Concerning

a) promoting diversity and intercultural dialogue:

— In France, in the city of Corps-Nuds, newcomers are recognised as part of the community and are encouraged to take part in all local social activities. In addition, children of any nationality are admitted to the public schools. The access to public education is guaranteed also to handicapped persons and adult jobseekers, in line with the principle of life-long learning.

— In Bremen (Germany) several events have been held relating to integration policy. What they all have in common is that they promote intercultural and interreligious dialogue as a way of both tackling the problem of xenophobia and countering trends towards radicalisation and segregation. E. g.:  The Religion Street Map: One successful spin-off of Youth Night is the Religion Street Map project, which is run by young people for young people. This project was set up by young people in Bremen from different religious groups; it aims to facilitate an exchange between religions and a better understanding of the beliefs concerned. The Bremen Islam Week: Special consideration is given in Bremen to the integration of Muslim citizens. during Islam Week, Muslims are given the opportunity to present their beliefs and their culture to the public.

b) using and promoting standards and plans for equal treatment,

— The city of Vienna created virtual bureaux for integration policy. In addition, a special department ‘Integration and Diversity’ was established to develop diversity management and to organise and expand counselling services for new migrants who settled down in the city. This department cooperates with migrant organisations and promotes integration-relevant measures and projects such as language acquisition measures.

— In Italy, in the region of Emilia Romagna, consultative antidiscrimination bodies have been introduced and local government bodies have introduced special advisors with the power to intervene in cases of race and gender discrimination.

c) access to language learning, education and the job market:

— In France, in the Rennes-Metropolitan area, various kinds of activities and education are offered in order to ensure new arrivals are integrated in the local community. In addition, a budget is set aside for the creation of community reception centres.

— The city of Vienna (Austria) offers for new migrants alphabetisation courses and basic German-language courses particularly for women and with day care for children.

— In order to combat employment discrimination, the French Rhone-Alps Prefecture has encouraged the local employment service to send employers anonymous details of job seekers, where applicants' surnames are left out.

d) access to social housing and public services,

— In Vienna, Austria, the city's public services are equally accessible and of equal quality for each member of the community, regardless of nationality, gender, race and religion. In addition, municipalities supported and financed projects promoting and developing pluralistic policies. The city promotes cultural, linguistic and community diversity and legal aid in the form of advice relating to the status of individuals is available to each member of the community.

— In the city of Barcelona public services are accessible for every registered person, even if not in posses of residential papers. The Catalan local authorities try to adapt the existing local services to migrants' needs and targets, and in particular throughout technical support to reception and settlement, financial support to diversity and citizenship policies as well as knowledge services for decision making. In addition, the Diputació de Barcelona established a Plan of Diversity and Citizenship as well as a Local Network on Diversity and Citizenship.

— In France, the city of Corps-Nuds allocates municipal housing to specific groups of any nationality, including Roma, as part of the housing policy of the urban area community to which it belongs.

e) active access to political and civil life,

— In Italy, the city of Turin has opened the municipal elections to all legal foreigners who have lived in the city for the last 6 years.

— In Denmark, according to the Danish Integration Act the municipalities have the possibility to establish integration councils which have the authority to make consultative reports on the integration initiatives and achievements in the municipality in general or about the introduction programmes offered by the municipality. The integration councils consist of minimum seven members resided in the municipality and appointed by the municipal council (kommunalbestyrelse).

— Municipal committee for communities in Oporto (Portugal) is an advisory body reporting to the City Council. Its role is to provide an interactive platform for information and debate between the foreign communities living in Oporto, and between them and the local authority. Through these meetings, the local authority learns these associations' opinions about ideas for projects which it is considering with a view to facilitating the integration of the communities concerned. Participants also discuss some of the main obstacles which the associations face when carrying out their own projects. The associations representing Oporto's foreign communities showed a keen interest in the municipal committee from the outset. A total of 13 associations are currently represented on it; it is thus fair to say that the local authority is working actively with quite a representative section of the foreign community in Oporto.

— In Italy, representatives of minorities seat in the Florence City Council, i.e. the leader of the Senegalese community in the Tuscany.

— In Germany, to facilitate integration, a system of regular monitoring of the situation of minorities has been introduced in Berlin. The city of Berlin launched the ‘Neighbourhood Fund’, which constitutes a successful example of model for improving public participation and integration.

f) protection of Roma minority. Here inter alia a Hungarian good practice is indicated:

— In Hungary, the local government and local minority government of Ozd launched a programme to renovate an area of extreme deterioration and social exclusion.

4.            The political positions of states on minority rights

The minority issues still belong to the most sensitive ones in interstate relations, particularly if one of the states concerned is a kin-state[32]. Instead of broad explanation of the well-known reasons of controversy and conflict I would prefer to illustrate the comprehensive dimensions of this rather divisive issue by three political statements made in the period of  not more than 12 days in November 2006.

a) On the 11th November after negotiations with his Croatian partner the Hungarian President stated that the main principle of the Hungarian politics related to minorities is that they have the right to enjoy autonomy, a cultural one if the members of minority are dispersed and a territorial one if they are siginificantly present on this territorial unit[33].  

b) On the 12th November at an official lunch given for foreign journalists when asked for his opinion on the territorial autonomy of Székely land the Romanian President stated that it would bring to beggary the székelys since 65 % of the Romanian GDP is produced in Bucharest. „Romania respects its citizens, so it can’t afford itself…”[34] 

c) On November 22 the Canadian Parliament formally recognized the French-speaking people of Quebec as a nation within Canada. The motion presented by the Prime Minister Stephen Harper, which says Quebecois form a nation within a united Canada, is largely symbolic in that it requires no constitutional amendment or change of law[35]. "Do Quebecers form a nation within a united Canada? The answer is yes," Canadian Prime Minister Stephen Harper told a cheering House of Commons to numerous standing ovations. "Do Quebecers form an independent nation? The answer is no — and it will always be no."[36]   

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