(at the Regional
Workshop on Recognition of Minorities in Southeast Europe,
Athens, 30-31 March
2001)
Minority Rights
Group International and Minority Rights Group –
Greece, in the framework of the program Southeast Europe:
Diversity and Democracy, organized in Athens, 30-31 March 2001, a
regional interactive workshop on the subject of Recognition of Minorities
in Southeast Europe. The objectives of the workshop were the
presentation of the institutional framework in each country regarding the
rights of minorities, the presentation of the problems of recognition by the
minorities that participated in the workshop, and the evaluation, through
exchange and dialogue between minorities in the region and experts from
inter-governmental and international non-governmental organizations, of how
within the framework of the existing international context many of these
problems can be confronted with the appropriate means of advocacy. The workshop was attended by representatives
from minorities in Albania, Bosnia-Herzegovina, Bulgaria, Croatia, Macedonia,
FYR, Kosovo, Turkey and Greece. Along with the representatives of minorities
were invited representatives of intergovernmental and international
non-governmental organizations; these experts had a substantial input in the
presentation of the existing international context and the possibilities that
it provides for the advocacy and the protection of minority rights.
Their interventions,
which follow, were presented on the first day of the roundtable discussion on
the International Context: Minority Rights Standards and Processes.[1] The
publication of the proceedings was made possible thanks to a grant by Charles
Stewart Mott Foundation.
Alan Phillips
is the Vice President
of the Advisory Committee for the
Framework Convention for the Protection of National Minorities of the Council
of Europe, to which he was nominated by the United
Kingdom. Also, until
December 2000, he was for ten years Director of Minority Rights Group
International. Since 2000, he has also been a member of Greek Helsinki
Monitor’s Administrative Board.
We decided to have this meeting here in Greece as it is a key state in Southeast Europe and it is an important member of the European Union. For many of us in Western Europe, we look at the history of Greece and its governance for two and a half thousand years, which is often seen as the cradle of democracy. Greece was the place that I came to for some of my first holidays as a student. So I have a deep affection, personally, for many places and people in Greece, and I enjoy its warmth and diversity, its different peoples, the friendships, and the unique culture and hospitality in each island and in many places on the mainland of Greece.
And organizationally, I’m delighted to be here and to be associated with Minority Rights Group-Greece, the Greek Helsinki Monitor, as well as of course Minority Rights Group International. This meeting is, as you will have gathered, part of a partnership. It is a joint venture. This meeting we have this weekend is part of a wider partnership programme.
In my introduction I will just touch upon certain elements in the programme ahead of us. I have been asked to speak on the specific aspects of the Framework Convention for the Protection of National Minorities (1995) and how recognition is tackled in that convention. It will be a tough challenge to keep within such a tight timetable. As Chairman of this meeting this morning I will also ask our speakers to help us by doing likewise.
This is an opportunity coming together to re-establish those friendships and working relationships. In such a difficult area of minority rights and human rights key components are creating processes to develop trust and confidence. It is important to find ways of supporting each other and working together. Some of you may recall the origins of the programme in Sofia in March 1999. It stemmed out of other initiatives that had taken place before. It evolved out of a detailed feasibility study that Anna Maria Biro had undertaken in this region, talking to people about what was needed. The meeting in Sofia, which I attended alongside over twenty partner organisations, set the parameters for this meeting as well as the total programme. It has key objectives of promoting minority rights in this region, while emphasizing inter-community cooperation. It’s not just about the rights of a particular community, but it’s about the rights of all communities, and how communities can come together, and how we can live in peace and harmony together with everyone being able to celebrate their shared interests and their differences. A key objective of the programme is strengthening the capacity of all of us for advocacy around international norms and standards that provide the moral framework – which are often formalised in political agreements, such as the OSCE agreements, or in legal Standards, such as the Framework Convention for the Protection of National Minorities or the International Convention on the Elimination of Racial Discrimination (1966). It is this framework that binds us all together, and finds common commitments by states as well.
Another objective is how can we find linkages between the local and the international, the international and the local. In the past, we have been divided. International standards sometimes have been considered as secrets. Too often those of us who work in Strasbourg or Geneva can be divorced from the reality of some of the issues. Conversely, if you are working in Macedonia, or maybe in Bulgaria, you may not know what your brother and sister organizations are doing in other countries. We must rectify this during the weekend.
Recognition has been identified as the focus for our meeting for several reasons. It does provide a very rich framework for discussing a wide variety of topics. It was identified very early on in the meeting in Sofia, as being an important issue. The consultative group in early December reconfirmed the importance of a workshop on this theme and hence we are here together in Athens. Let us remember why this topic– the recognition of minorities – is so important. And I am going to take from some language that the 41 states of the Council of Europe agreed in the Framework Convention. The preamble sets the philosophy and sets the framework in which we ought to be looking at the whole Convention.
The Preamble asserts: “Considering that the
upheavals of European History have shown that the protection of national
minorities is essential to stability, democratic security, and peace in this
continent.”
It continues: “Considering that a pluralist and genuinely democratic society should not only respect the ethnic, cultural, and linguistic identity of each person belonging to a national minority, but also create appropriate conditions enabling them to express, preserve and develop this identity.”
And notes: “Considering
that the creation of a climate of tolerance and dialogue is necessary to enable
cultural diversity to a be a source and a factor, not of division but of enrichment
of each society.”
Those are very important principles that should guide us. They are agreed by all states of the Council of Europe, even states such as Greece and Turkey that have not ratified the Framework Convention agreed that language.
Let us for a moment look at how this Convention itself may help us approach the issue of recognition. I find it helpful to break down complex issues into more manageable components. What are the components of recognition? What are the components of minority rights are these recognized on their own? If they are, by whom, in which circumstances and for which groups?
Article 3 of the
FCNM states, “Every person belonging to a national minority shall have the
right freely to choose to be treated or not to be treated as such and no
disadvantage shall result from this choice or from the exercise of the rights
which are connected to that choice.”
In Article 5 it
says, “The Parties undertake to promote the conditions necessary for persons
belonging to national minorities to maintain and develop their culture and
preserve the essential elements of their identity, their religion, language,
traditions and cultural heritage.”
That gives us certain key elements that may be respected by different actors. In response to an earlier questionnaire you responded and presented a number of issues for discussion including:
That directly relates to Article 4 of the Convention:
“The Parties
undertake to guarantee to persons belonging to national minorities the right of
equality before the law and of equal protection of the law. In this respect,
any discrimination based on belonging to a national minority shall be
prohibited.
The Parties
undertake to adopt, where necessary, adequate measures in order to promote, in
all areas of economic, social, political and cultural life, full and effective
equality between persons belonging to a national minority and those belonging
to the majority…”
Again that is Article 3 and Article 5 of the Convention.
Article 3 also
recommends “Persons belonging to national minorities may exercise the rights
and enjoy the freedoms flowing from the principles enshrined in the present
framework Convention individually as well as in community with others.” In Article 5 we also read, “Without
prejudice to measures taken in pursuance of their general integration policy,
the Parties shall refrain from policies or practices aimed at assimilation of
persons belonging to national minorities against their will and shall protect
these persons from any action aimed at such assimilation.”
That is often considered a very controversial and hot issue. Article 11 clarifies any questions that may be raised.
“The Parties
undertake to recognise that every persons belonging to a national minority has
the right to use his or her surname (patronym) and first names in the minority
language and the right to official recognition of them, according to modalities
provided for in their legal system…to display in his or her minority language
signs, inscriptions and other information of a private nature visible to the
public.” And
it concludes by affirming that, “In areas traditionally inhabited by
substantial numbers of persons belonging to a national minority, the Parties
shall endeavour, in the framework of their legal system… to display traditional
local names, street names and other topographical indications intended for the
public also in the minority language when there is a sufficient demand for such
indications.”
More generally we have mentioned that in Article 3 with respect to identity.
Nobody raised this issue, but that is an important one. It has been that there is population movement into an area deliberately by a state to dilute the minority population. It is precisely this issue that Article 16 deals with.
“The Parties shall refrain from measures which alter the proportions of the population in areas inhabited by persons belonging to national minorities and are aimed at restricting the rights and freedoms flowing from the principles enshrined in the present framework Convention.”
Religion is a
very important topic referred to in Article 8, where we read that, “The
Parties undertake to recognize that every persons belonging to a national
minority has the right to manifest his or her religion or belief and establish
religious institutions, organisations and associations.”
This is also another hot topic that was identified by a number of persons. We can read in Article 10 of the Convention that, “…every person belonging to a national minority has the right to use freely and without interference his or her minority language, in private and in public, orally and in writing.” In the next paragraph we also read wherever minorities live traditionally or in substantial numbers, if requested, “the Parties shall endeavour to ensure, as far as possible, the conditions which would make it possible to use the minority language in relations between those persons and the administrative authorities.” Also in Article 12 one reads that, “The Parties shall where appropriate, take measures in the fields of education and research to foster knowledge of the culture, history, language and religion of their national minorities and of the majority.” On the same issue one also reads in Article 13, “Within the framework of their education systems, the Parties shall recognise that persons belonging to national minorities have the right to set up and to manage their own private educational and training establishments.” Finally in Article 14 in the most precise terms we can read that, “…every person belonging to a national minority has the right to learn his or her minority language,” and for this purpose, “areas inhabited by persons belonging to national minorities …if there is sufficient demand…Parties shall endeavour…that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language.”
That is a continuing theme which is encouraged and promoted in Articles 6 and 12 of the Convention. Article 6 reads, “The Parties shall encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and co-operation among all persons living on their territory, irrespective of those persons’ ethnic, cultural, linguistic or religious identity, in particular in the fields of education, culture and the medial.” Also in the second paragraph it specifies that “appropriate measures” must be taken “to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity.” As we saw before Article 12 specifies the necessity to provide appropriate conditions that foster tolerance through education.
As we saw when we dealt with the use of mother language, minority language use in schools and universities Articles 12 and 13 in the Convention make effective recommendations concerning the education of persons belonging to a minority.
All of these are
things that were put on that list and in some cases since the themes are
interrelated we have already seen the answers provided by the Convention. In
this case we must return to Article 12 once more.
In Article 7 we read that, “The Parties shall ensure respect for the right of every person belonging to a national minority to freedom of peaceful assembly, freedom of association, freedom of expression, and freedom of thought, conscience and religion.” Further, Article 9, states that, “the right to freedom of expression of every person belonging to a national minority includes freedom to hold opinions and to receive and impart information and ideas in the minority language, without interference…persons belonging to a national minority” must not be “discriminated against in their access to the media.” Finally in Article 17, we read that national minorities have the right “to establish and maintain free and peaceful contacts across frontiers.” They have the right to come together, form organizations and to hold meetings. As you will know minority communities are often divided by state borders. They may live in mountainous areas.
Those are some of the issues that you have raised and many of them can be correlated against international standards. They are the issues that you want to be recognized. How should they individually or severally be recognized and enjoyed? These rights require legislation and appropriate government policies and resources. By whom should they be recognized? I think that when you start to look at the provisions of minority rights that we have just been through, let us not get ourselves trapped into thinking that the only way things can be recognized are by international conventions. Those particular rights can be enjoyed and celebrated by all sorts of ways of recognition.
Diplomats that
come together and draw international convention may recognize them, yes, at one
level. They may be recognized by politicians within constitutions, within
constitutional laws and, through normal domestic law. This will involve
ministers as well as politicians. It may be through a ministry of decrees; they
will engage government officials, civil servants.
These rights may demand the implementation of economic measures, including those through local government. It may be important to influence many key actors from economists, to local officials. Influencing the broader public can be crucial, which of course includes other individuals, families, communities and organizations to recognize certain aspects as being morally right and indeed recognizing them in practice. There are many sectors of civil society that you may want to engage and involved in that recognition. Whether people are living in rural areas, in cities, in towns. Whether you’re trying to reach young people, older people, wealthier, poorer people, people in different communities, minorities and majorities. It is important to differentiate in approach between various forms of decision makers as well as the many elements of society.
The question will repeat itself throughout our meeting: What is it that we want to be recognized, who do we want to recognize those issues, and how? If we start breaking down these very complex issues into those components, we have a chance to make some progress during this workshop.
In the next couple of days we are moving on from talking about the theory of standards to the reality of what is happening in your country, in your region, with your communities. Then we will explore how we can work together on these issues. I would suggest that short-term issues however important they seem today do not obsess us. Let us be process orientated, develop thoughtful strategies that will place time on our side. Obviously we are going to be looking at ways of forming local coalitions, building regional solidarity, while seeing how to use international mechanisms. Lets go well beyond legislation and how rights can be implemented through the rule of law and courts and policing. We need to look at moral and political initiatives backed by practical programmes and resources that relate closely to our lives. Lets remember that human rights and minority rights are owned by us, and not just by lawyers and diplomats. We need to be creative and imaginative in realising them for all minorities.
Over the next two days we can look at what we can do better, how to share experience how we can learn from each other. We have a rich variety of people here, with all sorts of experiences, let us encourage both logical vertical thinking and imaginative lateral thinking, with new approaches and new ideas. Don’t let ourselves get trapped in traditional methods. Let’s try and find new approaches. Let us be original but also intelligent and subtle. If one’s facing a brick wall, one approach can be to run at it with your head down. That's one way of trying to get through a brick wall that may make masochists feel better. I would suggest it’s not the most effective way to reach the other side. You might try and climb over it. It may be too high. You may try to undermine the foundations over time. We may move laterally and find somewhere around the corner there is a gate, if we watch carefully it may be open at certain times or we can persuade the gatekeeper to let us through. Altering foundations may be a long-term process, but eventually, if we’re determined enough and intelligent, we can reach the other side.
If you look at this glass of water you can describe it in a variety of ways. If you are a pessimist you say it’s half empty. If you’re an optimist like me, you say it’s half full. I then think how can we enjoy that water and our neighbour that he would like to help us top it up.
Let us try and be creative over the next few days. I know that my co-speakers here have come with a great deal of experience. I know that there are a number of donors, who have put resources into this programme, including the European Union, the UK Aid programme DFID and others, who believe that it’s very important to come together to find practical and peaceful ways of resolving some of the underlying tensions and conflicts in this region. Let us thank them in a very practical way by enjoying a dynamic and practically focused meeting.
***
Yuri Reshetov is the Vice President of the Committee on the Elimination of Racial Discrimination (CERD). This is an expert body responsible for monitoring the implementation of the provisions of International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). This is one of the six major human rights treaties adopted by the UN, and the first for which a monitoring mechanism was established. It is a very important convention that has matured in its interpretation because of the exceptional work that has been done all these years by some members of this Committee. Mr. Reshetov is an expert nominated by Russia, and the UN elected him with the exceptional number of 114 votes in the last election.
An important and integral part of the actions of the world community to ensure universal respect for and observance of human rights and fundamental freedoms shall be the creation of favourable conditions allowing minorities to express their particularities and develop their cultures, languages, religions and customs. The system for international protection of minorities established after the First World War represented an advance over the situations that had existed previously. But, in the long run, the guarantee of minority rights established by the League of Nations on the basis of minority treaties gave satisfaction neither to the governments of the minority countries nor to the minorities themselves. Since the United Nations Charter (1945) contains no specific provisions on minorities, during the drafting of the Universal Declaration of Human Rights (1948) the inclusion in the Declaration of the following paragraph relating to minorities was suggested as follows:
“Every people
and every nationality within in a state shall enjoy equal rights. State laws
shall not permit any discrimination whatsoever in this regard. National
minorities shall be guaranteed the right to use their native language and to
possess their own national schools, libraries,
museums and other cultural and educational institutions.”
But, the majority of the General Assembly rejected this proposal. The inclusion in the International Covenant on Civil and Political Rights (1966) of an article specifically relating to ethnic, religious or linguistic minorities was the most obvious indication of the importance which the international community attaches to the protection of minority rights. But, during the discussions of the article in the Sub-Commission on Prevention of Discrimination and Protection of Minorities, the suggestion came that the word “minority” should be replaced by the phrase “persons belonging to minorities” since minorities as such they are not subjects of law, whereas persons belonging to minorities could easily be defined in legal terms. It may be concluded that these applications consist in a stricter application of a more general principle of equality and non-discrimination with respect to minorities, but not in the recognition of minorities as such.
The expression, in those states in which ethnic, religious or linguistic minorities exist, of article 27 raises a problem of official recognition of minorities, a precondition for the applicability to them in this article. During the preparation of the study of Professor F. Capotorti on minorities, the Secretariat of the United Nations received a great deal of information from governments showing their different approaches in this respect. For instance, on this question, the French government has stated: “France cannot recognize the existence of ethnic groups, whether they are minorities or not.” The French government also draws attention to the fact that, “The use of local languages cannot in any way constitute a criteria for the identification of a group for other than scientific purposes.” The government of the United Kingdom has stated that, “There is no general procedure for granting official recognition of minority groups in the United Kingdom as a means of safeguarding their rights, since they exist without such recognition. It is unnecessary for an ethnic, religious or linguistic minority to be formally recognized by law to exist.” The internal law of some states includes recognition of the existence of minorities in those states. In several countries the recognition of the right of ethnic or linguistic minorities to preserve their culture and their language, and this obviously implies recognition of these groups, is incorporated in their constitution or in legislation. Also the groups, whose rights are defined, are not described as minorities or nationalities or cultural minorities or quite simply, linguistic groups. In some countries, for instance Russia, the recognition of national minorities is to some extent implicit, because of the federalist structure, some subjects of which have a national dimension. The so-called subjects of the Federation are called so because some of them are a minority distinct from the Russian population.
It should be pointed out that official statistics concerning the composition of the population, which sometimes even classifies the population by ethnic, religious or ethic groups do not constitute a legal recognition of minorities, which is still in the hand of the governments. Thus, Germany, referring to historic circumstances and especially agreements which were concluded after the first World War, recognizes as national minorities Danes, Serbs, Frisians and, according to the latest report of Germany to the Committee on the Elimination of Racial Discrimination [CERD], also the Sinti and Roma, but not much-greater-in-size ethic groups originating from Turkey, Yugoslavia, Greece, Spain, Portugal, Italy, Morocco and Tunisia. Also, the members of such groups have now been naturalized – some of them long ago. In respect to such situations, CERD has adopted its general recommendation 24/1999. It states, inter alia: “It appears from the periodic reports submitted to the Committee under article 9 of the International Convention on the Elimination of All Forms of Racial Discrimination, and from other information received by the Committee, that a number of states parties recognize the presence on their territory of some national and ethnic groups or indigenous peoples, while disregarding others. Certain criteria should be uniformly applied to all groups, in particular the number of persons concerned and their being of a race, language or culture different from the majority or from other groups within the population. Some states parties fail to collect data on the ethnic or national origin of their citizens or on other persons living in their territory, but decide at their own discretion which groups constitute ethnic groups or indigenous peoples that are to be recognized and treated as such. The Committee believes that there is an international standard concerning the specific rights of people belonging to such groups, together with generally recognized norms concerning equal rights for all and non-discrimination, including those incorporated in the International Convention on the Elimination of All Forms of Racial Discrimination. At the same time, the Committee draws to the attention of states parties that the application of different and non-objective criteria in order to determine ethnic groups or indigenous people, leading to the recognition of some and refusing to recognize others, may give rise to differing treatment for various groups within a country’s population.”[2]
In my personal opinion,
non-recognition of certain ethnic groups as minorities is conditioned by fear
of recognizing them as subject to the right to self-determination. But, the
government should not be afraid doing so if they take into consideration modern
interpretation of this right – the right to self-determination. According to
the modern interpretation of the right to self-determination, the creation of
an independent state by a national group can result only from free agreements among
different national groups within a state: option number 1. Then the right to
secession is embodied in the constitution of a country – what was the case with
the former Soviet Union and former Yugoslavia – or if the right of a national
group to participate in political and social life within the state is not
provided to it: option number 3. In this respect, CERD, in its general
recommendations 21/96, stressed that international law has not recognized as a
general rule the right of people unilaterally to take decision on breaking down
from a particular state. It is our firm belief that this right to secession is
not recognized by international law.
***
Zdenka
Machnyikova is Senior Legal Adviser to the
OSCE High Commissioner on National Minorities (HCNM). In her work with the
OSCE, Ms. Machnyikova provided an advice on national minority rights and
inter-ethnic issues in the OSCE region. She analysed and evaluated public policy,
legislation and state practice affecting national minority issues in a number
of European states. She also participated in the preparation of the Oslo
Recommendations Regarding Linguistic Rights of National Minorities and the Lund
Recommendations on Effective Participation of National Minorities in Public
Life. For more
information on the work of the office of the HCNM see the electronic address: http://www.osce.org/hcnm/index.php3
I am very pleased to have the opportunity to participate on behalf of the OSCE High Commissioner on National Minorities in this workshop. Since I was asked to prepare a presentation on recognition of minorities from the OSCE perspective, I will begin by referring to the minority standards that have been elaborated within the OSCE context. On 28 June 1990 the Governments of the OSCE Participating States agreed to the Document of the Copenhagen Meeting of the Conference on Human Dimension of the OSCE states. The Copenhagen Document commits governments, in its paragraph 31, to provide persons belonging to national minorities the right to exercise fully and effectively their human rights and fundamental freedoms, without any discrimination, and full equality before the law. Further, the Copenhagen document commits governments: “To provide persons belonging to national minorities the right to freely express, preserve and develop their ethnic, cultural, linguistic and religious identity, and to maintain and develop their culture in all its aspects, to profess and practice their religion, and to establish and maintain organizations or associations.” In paragraph 33, the Copenhagen document notes that: “The participating States will protect the ethnic, cultural, religious identity of national minorities on their territory and create conditions for the promotion of that identity.”
There is a common misunderstanding that minorities have to be formally – in the sense of some kind of official declaration – recognized by the state in order to enjoy the rights mentioned in the Copenhagen Document. The question of whether internal law recognizes or does not recognize the existence of minorities per se cannot determine the extent of obligations undertaken by the state under international law. It is a principle of international law that the state has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty. International protection does not depend on the official recognition of the existence of minorities.
As the Copenhagen Document finally makes clear: “To belong to a national minority is a matter of a person’s individual choice, and no disadvantage may arise from the exercise of such choice.” This definition of subjective identification undermines any attempt by a state to include or exclude a person from membership of a national minority, based upon governmental criteria, no matter how objective or how independently or impartially administered. As such, it goes a long way to solving problems, which arise in terms of specific membership of a group. The obvious problem left unresolved is not so much appurtenance to the group but its character and, hence, whether the persons bringing a claim qualify for rights. This raises the question of what are those elements that indicate the existence of a national minority. Specific points are laid out in the Copenhagen Document, which explicate how the choice to belong to a national minority may be exercised. These include: the freedom to use mother tongue, freedom to establish educational, cultural and religious institutions, freedom of religion, freedom of movement and contacts, and so on.
So the real question, therefore, is whether access to the right is secured. Strategically, from the point of view of accessing rights, I would suggest that instead of seeking to win some declaration, which has symbolic value, and which is important – but can inflame inter-ethnic relations, it’s better to act vis-à-vis specific rights to secure access and enjoyment of those rights. Based on such an aim one can easily determine tactics.
As I already mentioned, there is a misconception that, in order to acquire and enjoy the rights mentioned in the Copenhagen Document, a person belonging to a national minority would have to be formally recognized by the state. The Copenhagen Documents suggests that this is not necessary. As noted above, Paragraph 31 states that: “Persons belonging to national minorities have the right to exercise fully and effectively their human rights and fundamental freedoms without any discrimination and in full equality before the law.” The same principles of non-discrimination and equality before the law apply to all persons within the jurisdiction of the state. It should be noted that standards guaranteed to persons belonging to national minorities in effect deal with specific forms of application of principle of equality and non-discrimination. For example, when an association of persons belonging to a national minority wants to acquire a legal personality for purposes of enjoying one of their enumerated rights, the law may oblige them to be registered. However, the requirements for registration cannot be different from those for associations not composed of persons belonging to national minorities. To require otherwise would constitute a violation of the principle of non-discrimination. Nor can registration be refused because of the mere fact that it is an association of persons belonging to a national minority. This would be a violation of the commitments of the Copenhagen Document.
The OSCE High Commissioner on National Minorities has so far responded to the problem of recognition with the assertion that: “I know a minority when I see one.” Many of you here probably know this famous phrase. It is interesting to know that the High Commissioner has acted in a variety of situations with regard to a variety of groups, including groups without kin-states and non-citizens. Of course, the assertion of the High Commissioner that he knows a minority when he sees one was made in the specific context of his limited mandate, which addresses situations involving problems relating to minorities where there is the dimension of the threat to peace and stability in the OSCE region. In the fulfilment of his mandate, the High Commissioner has interpreted the notion of a national minority in a relatively wide sense. It is to be recalled, however, that the High Commissioner on National Minorities is not a supervisory mechanism and does not concern himself with the protection of minority rights in general. In fact, the work of the High Commissioner addresses issues of such a nature – i.e. where there is a propensity to conflict – that definitional questions are rarely at issue. On the whole, the parties effectively recognize one another. This is true essentially because the High Commissioner is acting in situations where there is mobilisation of grievances. Still, in the specific cases in which the High Commissioner has become involved questions of definition and recognition have arisen – for example, with regard to the inclusion and exclusion of certain persons or certain parts of a group.
For example, the High Commissioner has been faced with the issue of recognition of the Albanian minority in Greece. In another case, the Government of the Republic of Macedonia in 1996-97 denied Turkish language education to the children of persons describing themselves as being of Turkish ethnicity. The argument of the Government was that the persons concerned could not claim to be members of Turkish minority because Turkish was not language spoken at home. They could not, therefore, benefit from the entitlements accorded to the members of that minority.
This concerns one specific situation, which is still actually not resolved and in which the High Commissioner was involved. The case concerns the school in Centar Zupa where the Macedonian Government, in 1996-97, basically claimed that the children could not be taught Turkish language in the school because they did not use the language any more. This actually raises some questions. Does the child have the right to determine his or her own identity and to preserve and develop that identity through education, including linguistic education? And assuming that is the case, it raises also another question, which is basically: How you determine to what extent you will use that assertion that s/he is a member in determining whether the child maintains that identity? The High Commissioner discussed and had an exchange of letters with the Macedonian Government on this issue. The Government indicated that they were planning to organise an assessment of the current knowledge of the Turkish and Macedonian language of the village school children and that, in the event that the school children were judged to have a sufficient command of the Turkish language, the Government would be prepared to facilitate provision of Turkish language classes. The High Commissioner reminded the Macedonian Government that in accordance with the OSCE standards, the subjective will of the parents in Zupa to consider themselves Turkish and thereby to receive for their children education in or of the Turkish should be determinative in this case. The issue is still under discussion.
In any event, when this issue is in dispute the High Commissioner has maintained that some objective factors are required, since arbitrary and unilateral assertion cannot stand. In these situations, the High Commissioner has argued on the basis of paragraph 32 of the Copenhagen Document, supported by references to the other instruments and the other opinions expressed in the context of the UN and the Council of Europe. The High Commissioner on National Minorities, in addressing different situations has attempted to maintain a consistent understanding of the term of minority, within the overall context of international human rights law. So far, the essentially subjective definition arising from the paragraph 32 of the Copenhagen Document represents an almost determinative standard and reference to which OSCE Participating States have committed themselves. The High Commissioner is currently involved with some governments, discussing the issues related to recognition.
***
Boris
Tsilevich is a member of the Latvian Parliament and PACE. He has been a member
of the Riga City Council and he is an advisor on human rights and ethnic
relations in the Latvian Parliament and member of the Consultative Council on
Minorities of the President of Latvia. He is also the moderator of the MINELRES
(Minority Electronic Resources) project. For more information on his work and
on thewebsite he moderates see the electronic address:
http://www.riga.lv/minelres/cv/cv_tsil.htm
One of the leading experts in minority rights, John Packer, once wrote that minority rights represent a very special part of human rights law, because neither the holders of these rights nor their content have ever been clearly defined in legal terms. Although somewhat exaggerated, this paradoxical statement is nevertheless not without good reason. Approaches to the problem of recognition of minorities at a national level are really very different. The Parliamentary Assembly of the Council of Europe is an assembly of parliamentarians, politicians, coming from the European states with a very broad variety of national traditions of handling ethnocultural diversity in general, and approaches to the recognition of minorities, in particular. It is a venue where these different views meet, interact, sometimes clash, but, in the end of the day, converge, making what used to be called modern European standards of minority protection.
One cannot but acknowledge that the process of elaborating common and generally accepted - although not yet generally and fully implemented - standards in respect of recognition and safeguard of minority rights is surprisingly fast – given the highest political sensitivity of this issue.
So, why is this problem so politically sensitive? I would agree with Mr. Reshetov, largely because of a historically established understanding of minority rights. Historically, the idea of minority protection emerged much earlier than other basic concepts of human rights. Of course, these ancient treaties dealt with religious minorities, as the very concept of national minority appeared much later. The first minority treaty, as probably many of you know, is dated back to 1606. This is the Vienna Treaty between the King of Hungary and the Prince of Transylvania.
But, of course, all these old bilateral and multilateral treaties on minority protection were based on the same concept. Minority rights were considered a sort of special privileges granted to some groups, which, due to some historical, religious or just political reasons, were particularly dear to some contracting parties. In no way were minority rights universal, and recognition of minorities was dependent primarily on the bilateral relations between the states - to put it bluntly, to a large extent on the relative military strength. The system of minority treaties under the League of Nations is the best evidence for this approach. Obligations in the field of minority protection were imposed on the states, which lost World War I, and those states that obtained independence or extra territory as a result of post-war treaties. In the meantime, victors of World War I did not undertake any obligations in this respect. Maybe the most salient example of this approach is the situation of Roma, who never had “their own” state to take care of them. This is why practically nothing was done to oppose widespread discrimination against Roma until very recently.
So, the minority issue in the inter-war period was exclusively a foreign policy issue. However, the system of minority treaties appeared incapable of preventing World War II. Moreover, the minority issue was clearly abused by Hitler to justify his aggression. This way, not only the League of Nations approach to minority protection was discredited, but so was also the very concept of minority rights, to some extent. This is why the UN was quite hesitant to include any provisions on minority rights in its first basic documents, as Mr. Reshetov mentioned today. And still today, to be frank, we sometimes face attempts to revive this approach – that it is exclusively up to the nation states to decide which groups deserve granting “special privileges” - as minority rights are understood by the adherents of this obsolete and, I would say, anachronistic approach.
The new legal concept of universal human rights, developed after the World War II, incorporated - although not without difficulties – also new understanding of minority rights. The latter could be somewhat simplistically described as follows.
Human dignity is a source of human rights. A person’s identity is closely linked to a person’s dignity. So, recognition and respect of a person’s cultural identity is a necessary prerequisite for effective implementation of human rights. Minority rights are in fact the right to preserve one’s distinctive identity or, one might say, the right to diversity. This idea is particularly reflected in the Framework Convention – Alan Phillips spoke about it already. But I would like to stress that the Framework Convention is the first ever legally binding instrument on minority rights. So, it is very important that article 1 says very clearly and emphasizes that: “The protection of national minorities and that the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights.”
We can say that denial of minority rights to some individuals or groups on the basis of arbitrary criteria should be clearly considered as discrimination. As to the texts adopted by the Parliamentary Assembly itself, out of many, two major documents should be pointed out. First, the famous Recommendation 1201, adopted in 1993, entitled “On an Additional Protocol on the Rights of National Minorities to the European Convention of Human Rights.” Article 3 of the proposed additional protocol reads as follows: “Only the recognition of the rights of persons belonging to a national minority within a state and the international protection of these rights are capable of putting a lasting end to ethnic confrontations and thus of helping to guarantee justice, democracy, stability and peace.”
It is a very interesting mixture of the pre-war political approach and modern human rights approach. This clause says nothing about human rights. It speaks about justice, stability and peace – not human rights. But it is realized here already that the only way is to recognize minorities and to guarantee their human rights both at the national and international level: recognition of a minority within a state and the international protection. Thus, it is a very important document. And there was in fact universal consensus in the Parliamentary Assembly on this point, already back in 1993.
However, another issue was, and to some extent still is, much more controversial. Namely, what kind of criteria a group of individuals must meet to claim recognition as a national minority? The Recommendation 1201 suggested an answer to this question. Despite heated and unsuccessful debates over the definition of minority in the United Nations, the Parliamentary Assembly suggested its own definition. And its main elements are: first, citizenship; second, long-standing, firm and lasting ties with the state; third, distinctive ethnic, cultural, religious, or linguistic characteristics; fourth, sufficiently representative numbers, or “size”: “sufficiently representative although smaller in number than the rest of the population”; and the last, a motivation by a concern to preserve together what constitutes their common identity.
Why did the members of the Assembly support this proposed definition? The reasons were very different, and even opposite. For some members of the Parliamentary Assembly, this definition was a good tool to explicitly exclude some groups, which were perceived as “migrant groups.” For some others – and I tend to believe for a considerable majority – it was a guarantee that in no group meeting this criterion will be excluded.
Frankly speaking, some of the listed criteria are rather vague and subject to interpretation. Who and how is to interpret this criteria? Part of the answer to this key question could be found in the same Recommendation 1201. Article 2 of the proposed protocol says: “Membership of a national minority shall be a matter of free, personal choice.” So, this completely coincides with the approach of the United Nations and the OSCE. Hence, these are the persons in question themselves who should first decide whether they belong to a national minority or not.
And the last text I would like to mention is the Recommendation 1492, adopted two months ago, in January this year. Basically, this Recommendation confirmed this attitude of the Parliamentary Assembly. It once again insists on adoption of the definition of minority, but goes further. According to paragraph 2 of this new recommendation: “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.”
I would like to draw your attention to unusually strong language of this paragraph. Probably, an NGO would say something like this, but for the Parliamentary Assembly it is really a rare case.
One more very important provision of this recommendation is an attempt to answer a very delicate question: do those groups, which do not qualify for the status of a national minority under the definition given in the Recommendation 1201, possess minority rights or not? Paragraph 11 of this new Recommendation reads as follows: “The Assembly recognizes 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.” So the answer is: yes. Migrant groups also have some minority rights! Not exactly those that are enshrined in the Framework Convention, but some special document be elaborated to guarantee the basic right to preserve their identity also to these groups.
In an attempt to sum up I will add that: Though not without problems, one can observe that the pre-war approach to minority rights as a merely foreign policy issue is gradually and irreversibly replaced with the concept of minority rights as an integral part of human rights, i.e. universal rights which must be applied without discrimination. Both adopted texts of the Parliamentary Assembly and legally binding documents give good evidence for this. In the meantime, many Council of Europe member states still tend to apply declared principles in a rather restrictive and arbitrary manner. And so far, the Parliamentary Assembly has no effective mechanisms at its disposal to resolve this problem. So, the main task is to strengthen practical machinery, and first of all, the most promising body - the Advisory Committee on the Framework Convention.
***
Eurig Wyn
is the Secretary General of the
Greens and the European Free Alliance. He is a member
of the Committee for Culture, Education, Youth, Mass Media and Sports. He also participates in
other Committees of the Greens and Free Alliance Group in the European Parliament
where he represents the Welsh Party, Plaid Cymru in the United Kingdom. He has
worked as a teacher, journalist/presenter for the BBC and for Welsh newspapers.
He has also worked in the
area of development projects and he was the screenwriter for S4C and for Welsh
theater. As a member of the European Committee of the Regions he was the
spokesperson for the construction allowances, action against racism, and the
incorrect use of medication institutional changes.
I think I’ll start with a story, and I hope the translators will be able to follow it. I don’t know if you heard about the end of the world, when the nuclear bomb landed. And two farsighted scientists happened to be farsighted enough to build for themselves a balloon to escape from the carnage below. And as they hovered over the smoke and the clouds, they were totally disoriented. And through a gap in the clouds, they saw a man on a hillock below them. And they called down to him and asked him, “Where are we?” they said. And the man on the little hill below said, “Well, we’re here,” he said. And the cloud covered him and the balloon went on its way. And one scientist said to the other, “Well, I’m sure that man was a politician.” The other scientist said, “Well, why do you think that?” “Well, the answer he gave us was quite correct, but was of little help to anyone.”
But I hope that as a member of the European Parliament that I can perhaps not provide the legal input that we’ve had already from the experienced member of this panel of speakers, but certainly provide the practical experience of a politician within the European Parliament. Now, and I’ve come here not only to praise the work that the European Parliament does, but more importantly, today, to underline the democratic deficit also within the European Parliament. Now, although it is the only directly elected institution, it has the least powers of all the other institutions that Mr. Phillips mentioned already.
So, all the hard work, then, done in the European Parliament depends on the will of the Council of Ministers, which is the most important body there. And that is controlled, of course, by the member states. And more importantly, it is controlled by the most powerful member states. So, that’s the important democratic deficit, then, that I have to stress to you at the outset.
I am a member of the Culture Committee within the European Parliament, and that, although it discusses very interesting matters concerned with minorities and languages, it is a purely consultative committee. It discusses e-commerce, media, doping in sport, and opera far more often than it does address the real issue that we’re concerned with here today, which is addressing the problems of minorities and lesser used languages. And this is a Committee Chair that should, of course, be playing a key role in surely the most important element in the new Europe we want to create. And that is to create unity in diversity and avoid the conflict that we’ve all experienced over the last century and before that.
Cultural diversity, then, is often mentioned within the European Parliament, but only on a member state level, and - I think this must be stressed – not in the regions, but only under the ambit of the member state level. Official language recognition is viewed, then as a member-state priority and a member state jurisdiction, rather than a regional empowerment, which is the road and the agenda that I think we should be addressing.
When I joined the Parliament, there was a discussion to do with the European Year of Languages. And unless you know, this year that we’re in at the moment is the Year of Languages. And I asked the question in the Culture Committee, “How many lesser used languages would be included under the ambit of the European Year of Languages?” And the reply the Commissioner gave me was that there were only 2 that would be respected and entered into proper recognition in the European Year of Languages - and that was Irish and Luxembourgish. Purely because, of course, they are member states that recognize them as official languages. Although, the language that I speak, which is my first language, Welsh, is spoken far more widely than the Irish or the Luxembourgish language, it wasn’t recognized. Which shows, of course, the democratic deficit not only in Europe, but also in my own member state. That the recognition for the Welsh language wouldn’t provide it with the opportunity of playing a full role and being provided the funding, of course, and support within the European Year of Languages.
The other democratic deficit that I’d like to stress to you is that there are, within the Parliament, of course, important groups that have been set up there, for example, to deal with minority or lesser used languages, and also another group that I’m a member of, the Stateless Nations Group. But, they are very, very excellent groups, but they are purely talking shops. They don’t have any kind of real empowerment to drive the agenda of stateless nations and minority languages forward.
Before I joined the European Parliament I was a member of the European Committee of the Regions. And nobody talks about it in the Parliament, although I would regard it as a body that needs proper empowerment, and needs developing as a real institution within the European Union and a very important second chamber to the Parliament. But nobody discusses the Committee of the Regions. It was set up, of course as some of you might be aware, by the impetus of the Germans, in particular, because they wanted another body because of the debate between the Bundesrat and the Bundestaat. They wanted the Committee of the Regions as a body, as a tool that they would use to develop the democratic agenda within Europe.
But we are now moving into a position where the Committee of the Regions will produce a paper over the next few weeks on minority languages, which is a good sign. And we hope through our European Free Alliance Group and the Green Group, which is the 4th strongest group in the European Parliament now, so we have quite significant empowerment at last, within that group, and we hope to build a good working relationship with the Committee of the Regions in producing this paper.
But we are still, of course – and I remember when I started with the Committee of the Regions - discussing article 3B of Maastricht, which is concerned with subsidiarity. But however we view subsidiarity as a concept, it does stop at the nation, at the member state level. It doesn’t go any further. The concept of subsidiarity, which means answerability, goes no further than the Treaty of Maastricht, then, signed in February 1992, which is an important watershed, because it stresses the importance of the right to petition the European Parliament. And I would think that that is an important statement to make. And I would regard it as the birth, now, of the European citizenship with precisely defined rights and duties. But there are no fundamental rights there. The Treaty of Amsterdam, then, as a result of this democratic deficit, led to the establishment of the Charter of European Fundamental Rights.
I have skated over the deficits as I see them within the European Parliament and would like to turn now, in the remaining few minutes I have, to the Charter of Fundamental Rights, because I regard it as an important means through which we can strengthen and improve the democratic deficit within the European Parliament.
A Convention, then, consisting of representatives of heads of government, members of national parliaments, members of the European Parliament, and the Committee of the Regions got together to establish and set up the Charter of Fundamental Rights in the European Union. Parliament approved the Charter, a fact that was solemnly proclaimed by the Council, the Parliament and the Commission, the Nice European Council. Where it has been applauded as the document that lays down the basis for a European Union founded on common values and constitutional traditions common to member-states. Some of its principles, such as new rights relating to bioethics, the environment and data protection, go even beyond those contained in the European Convention of Human Rights. The explicit prohibition of discrimination and the affirmation of cultural diversity are of specific importance in the multicultural context of the European Union.
The question now, then, is: What do we do with the Charter? It’s there, but what exactly do we do with the Charter and how will it affect the citizens of Europe and European citizenship in general? Parliament, then, is in favour of incorporating the Treaty. Whether integrated or not, however, the approval of the Charter provides a substantive point of reference for all those involved – member states, institutions, natural and legal persons – within the Community concept. And wouldn’t it be an excellent Europe to live in if we had – I’m a member of the Petitions Committee, there – that if people could petition (I enjoy being on the Petitions Committee, that’s where you meet real people, that’s where you have people with real complaints and concerns approaching us in the Petitions Committee. But the Petitions Committee isn’t powerful enough). But wouldn’t it be excellent if the Petitions Committee could invite people there – Kurds, or the Roma community, or Macedonians, or Gypsies, or the Welsh – to invite them there to petition on the basis of a Charter enshrined in European law. And that’s what we’re driving towards.
The right to petition the European Parliament, then, is an expression of European citizenship. Clarification on the constitutional status of the Charter is of the utmost importance for the people of the European Union. In order to involve Europeans in matters of their concern, a Charter with a clear constitutional basis would enhance the legitimacy and the relevance of the European institutions for European citizens. And clarification on the status of the Charter is also important with respect to enlargement.
A considerable number of petitions we have received there concern discrimination, often on the basis of nationality (we have been discussing that concept here, already) race, sex, language. Given the problems with minority rights, then, in the accession countries, these new European citizens, from the date of accession, should have the right to petition the European Parliament on issues of discrimination, by making reference to this Charter. And whatever happens in this debate that we’re having over the next few days, I think that as far as the European Union is concerned, that will be a very, very important step forward.
I think I overstepped my time limit, but I look forward to taking part in a creative way in the debate and discussion we shall have over the next few days. We must work towards a Europe, in my view, which is tolerant, which embraces different cultures and minority groups. These cultures are vital to safeguard the richness of European heritage. We must aim for a peaceful Europe. One that is truly representative of its citizens. Thank you very much.
[1] Transcription of the presentations: Andrea Gilbert; editing: Nafsika Papanikolatos
[2] All general recommendations of the committee till 2000, full text of ICERD, and other important information on the committees work can be found in Atsuko Tanaka with Yoshinobu Nagamine, The International Convention on the Elimination of All Forms of Racial Discrimination: A Guide for NGOs, Minority Rights Group International and International Movement Against All Forms of Discrimination and Racism, 2001.