Parliamentary
Assembly of the Council of
The
concept of “nation”
Recommendation
1735 (2006)1
1.
In 2003, the Parliamentary Assembly debated the question of preferential
treatment of national minorities by the kin-state in the light of the Hungarian
law of 19 June 2001 concerning Hungarians living in neighbouring
countries ("Magyars"). In Resolution
1335 (2003), the Assembly noted in connection with the Hungarian law, which
defined the concept of "nation" in its preamble, that to date there
was "no common European legal definition of the concept of 'nation'."
2.
The Assembly, aware of the need to clarify the terminology used in
constitutions and legislations in force to cover the phenomenon of ethnic,
linguistic and cultural links between groups of citizens living in different
states, in particular the use of the word "nation" as well as the
correlation with a specific historical or political context, has considered
whether, and how, the concept of nation – where applicable, a rethought and modernised concept – can help to address the question of
national minorities and their rights in 21st-century Europe.
3.
The Committee on Legal Affairs and Human Rights, in a study of the concept of
nation and its use in Europe based on data gathered from questionnaire replies
from 35 national parliamentary delegations and on statements by experts in law
and political science at a hearing it had organised
in Berlin on 7 June 2004, concluded that it was difficult, not to say
impossible, to arrive at a common definition of the concept of nation.
4.
The term “nation” is deeply rooted in peoples’ culture and history and
incorporates fundamental elements of their identity. It is also closely linked
to political ideologies, which have exploited it and adulterated its original
meaning. Furthermore, in view of the diversity of languages spoken in European
countries, a concept such as nation is quite simply untranslatable in many
countries where, at best, only rough translations are to be found in certain
national languages. Conversely, the words used in certain national languages
have no adequate translation in English or French, the two official languages
of the Council of Europe.
5.
The Assembly has acknowledged that in some Council of Europe member states, the
concept of nation is used to indicate citizenship, which is a legal link
(relation) between a state and an individual, irrespective of the latter’s
ethno-cultural origin, while in some other member states the same term is used
in order to indicate an organic community speaking a certain language and characterised by a set of similar cultural and historic traditions,
by similar perceptions of its past, similar aspirations for its present and
similar visions of its future. In some member states both understandings are
used simultaneously to indicate citizenship and national (ethno-cultural)
origin respectively. To this end, the term “nation” is sometimes used with a
double meaning and at other times two different words are used to express each
of those meanings.
6.
The Assembly also acknowledges that whenever the concept of nation means
citizenship it designates some kind of a contractual relation between a
physical person and a state, while when the concept of nation means an
ethno-cultural community it designates a cultural reality (a cultural fact or a
cultural status) which is based on the free and unilateral association of a
physical person to that community and involves only the relations among the
members of that community. A nation in its cultural understanding becomes a
subject of law (see international law) only if it organises
itself as a state which is internationally recognised.
7.
The Assembly notes that within the very complex process of nation building and
of the nation-states’ birth, the modern European states founded their
legitimacy either on the civic meaning of the concept of nation or on the
cultural meaning of the concept of nation. However, while the distinction
between those two meanings is still to be identified in some of the Council of
Europe member states' constitutions, the general trend of the nation-state’s
evolution is towards its transformation depending on the case, from a purely
ethnic or ethnocentric state into a civic state and from a purely civic state
into a multicultural state where specific rights are recognised
not only to physical persons but also to cultural or national communities.
8.
The Assembly also notes that because of the way in which the nation-states were
formed during the 19th century and the first part of the 20th
century, as well as because of nation-states’ border changes at the end of the
Second World War and of the Cold War, on the territories of almost all the
Council of Europe member states there live various groups of people who are at
the same time citizens of the same state or civic nation, but who belong to and
are part of different cultural nations. As compared with the
biggest group of citizens having the same ethno-cultural background, those
groups, who are relatively smaller, constitute and are called national
minorities.
9.
These national minorities or communities – often created as a result of changes
in state borders –, which represent a constitutive part and a co-founding
entity of the nation-state of which their members are subjects as citizens,
enjoy their rights in order to preserve, express and foster their national identity,
as provided for in Assembly Recommendations
1201 (1993) and 1623
(2003) and the Framework Convention for the Protection of National
Minorities and the European Charter for Regional or Minority Languages.
10.
The Assembly also notes that since national minorities as such do not have
legal personality they cannot be legal subjects and therefore they cannot be
parties to contracts or covenants. However, they must be the object of
collective protection and their members must enjoy the capacity to act, either
as individual legal subjects or associated in various entities with legal
personality, in defence of the respective national
minorities’ identity and cultural rights. These rights are not territorial or
territorially connected and their recognition and protection must be legally organised both at the level of each nation-state concerned
and at the transnational (international) level.
11.
The Assembly acknowledges that the most important role in preserving the
identity of national minorities falls to the state of which the national
minority members are citizens. Consequently, it invites member states to adopt
legislation and regulatory acts recognising the
traditional national minorities and apply them in good faith. Where
representation in political institutions is concerned, it recommends that the
states apply the principle of positive discrimination to members of national
minorities, especially as regards proportional representation in central and decentralised institutions (including executive bodies) in
particular in the regions where those minorities live.
12.
The Assembly believes it necessary to strengthen recognition of every European
citizen's links with his identity, culture, traditions and history, to allow
any individual to define himself as a member of a cultural "nation"
irrespective of his country of citizenship or the civic nation to which he
belongs as a citizen, and, more specifically, to satisfy the
growing aspirations of minorities which have a heightened sense of belonging to
a certain cultural nation. What is important, from both a political and a legal
standpoint, is to encourage a more tolerant approach to the issue of relations
between the State and national minorities, culminating in genuine acceptance of
every individual’s right to belong to the nation which he feels he belongs to,
whether in terms of citizenship or in terms of language, culture and
traditions.
13.
The Assembly recalls that, in its Resolution
1335 (2003), it stated that "the emergence of new and original
forms of minority protection, particularly by their kin-states, constitutes a
positive trend (…)". It considered that the possibility for states
to adopt unilateral measures for the protection of the kin-minorities abroad,
irrespective of whether they lived in neighbouring or
other countries, was conditional upon respect of the following principles:
territorial sovereignty, pacta sunt servanda, friendly
relations amongst states and respect for human rights and fundamental freedoms
– in particular the prohibition of discrimination. While kin-states may
legitimately play an important role in upholding national minority rights by
taking an interest in what happens to their kinspeople
living in other countries, it is imperative that this support respects the
legislation of the states where the minorities concerned live and any
regulatory act must be negotiated beforehand with the governments of those states.
The same rights and obligations should be recognised
for or observed by all states who intend to adopt unilateral measures regarding
the protection of the identity of cultural and national minorities living in
different states and being formed by the latter states’ citizens.
14.
The Assembly considers that, where the upholding of national minority rights is
concerned, the Congress of Local and Regional Authorities of the Council of
Europe has a major role to play, through work helping to guarantee application
of the relevant European rules. It believes that Recommendation 43 (1998) on
territorial autonomy and national minorities and Recommendation 70 (1999) on
local law/special status should be re-examined to identify concrete follow-up.
15.
Taking note of the Warsaw Declaration and the Action Plan adopted on 16
and 17 May 2005 by the Heads of State and Government of the member states of
the Council of Europe, the Assembly calls on the Committee of Ministers to
initiate discussion without delay with a view to swiftly implementing the
decisions taken. In particular, the Action Plan points out that "
16.
Consequently, the Assembly recommends that the Committee of Ministers:
16.1.
invite the member states not yet having done so to sign and ratify the
Framework Convention for the protection of national minorities, the European
Charter for regional or minority languages and the European Charter of local
self-government, which are fundamental instruments for maintaining the national
identity of national minorities or communities, and step up its efforts in this
respect;
16.2.
invite the member states to promote in their national legislation the recognition
of the cultural rights of minorities, inter alia on
the basis of Recommendation 43 (1998) on territorial autonomy and national
minorities and Recommendation 70 (1999) on local law/special status of the
Congress of Local and Regional Authorities of the Council of Europe;
16.3.
take the appropriate measures in order to make sure that the member states
reject any attempt to promote the ethnic purity of the state or to organise the territory and the administration of the state
on an ethnic basis, with the exception of the affirmative measures which aim to
achieve a fair representation of the national minorities in their country’s
administration, at the central and the local level;
16.4.
invite the member states to bring into line their constitutions
with the contemporary democratic European standards which call on each state to
integrate all its citizens, irrespective of their ethno-cultural background,
within a civic and multicultural entity and to stop defining and organising themselves as exclusively ethnic or exclusively
civic states;
16.5.
draw up guidelines on procedures for developing relations between a state and
the minorities residing in a different state – mainly in its neighbourhood –, bearing in mind the criteria identified by
the Venice Commission in its 2001 report, in the light of its analysis of
existing legislations, as well as the pertinent Assembly resolutions and
recommendations.
17.
The Assembly recalls that, in its Recommendation
1623 (2003) on rights of national minorities, it urged the Committee of
Ministers to "take the necessary measures to continue co-operation
with the European Union, with a view to achieving common policies in the field
of the protection of national minorities”. It observes that the reply
from the Committee of Ministers to this recommendation was terse, to say the
least. It therefore requests the Committee of Ministers to ask Mr Jean-Claude Juncker to focus
in depth on the question of complementarity of
policies on protection of national minorities and recognition of their rights
in his forthcoming report on relations between the Council of Europe and the
European Union.
1 Assembly debate on 26 January 2006 (7th
Sitting) (see Doc.10762,
report of the Committee on Legal Affairs and Human Rights, rapporteur:
Mr Frunda). Text adopted by the Assembly on 26 January 2006 (7th
Sitting).