Minorities, Their Rights, and the Monitoring of the European Framework Convention for the Protection of National Minorities : Essays in Honour of Rainer Hofmann [1 ed.] 9789004236561, 9789004214415

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Minorities, their Rights, and the Monitoring of the European Framework Convention for the Protection of National Minorities

Studies in International Minority and Group Rights Series Editors

Gudmundur Alfredsson Kristin Henrard

Advisory Board

Han Entzinger,

Professor of Migration and Integration Studies (Sociology),

Erasmus University Rotterdam, the Netherlands;

Baladas Ghoshal,

Jawaharlal Nehru University (Peace and Conflict Studies, South and Southeast Asian Studies), New Delhi, India; Human Rights Law, University of

Michelo Hansungule, Professor of Pretoria, South Africa; Baogang He,

Professor in International Studies (Politics and International Studies), Deakin University, Australia;

Joost Herman,

Director Network on Humanitarian

Assistance the Netherlands, the Netherlands;

Will Kymlicka,

Political

Kingston,

Philosophy,

Queen’s

University,

Samaddar, Director, Mahanirban Prakash Shah, Senior Lecturer

Professor of

Canada;

Ranabir

Calcutta Research Group Kolkata, India; in Law (Legal Pluralism), Queen Mary,

University of London, the United Kingdom;

Tove Skutnabb-Kangas,

Guest Researcher at the Department of Languages and Culture, University of Roskilde, Denmark; University Rotterdam,

Siep Stuurman, Professor of History, Erasmus the Netherlands; Stefan Wolff, Professor in Security

Studies, University of Birmingham, the United Kingdom.

VOLUME 7 The titles published in this series are listed at brill.com/imgr

Minorities, their Rights, and the Monitoring of the European Framework Convention for the Protection of National Minorities Essays in Honour of Rainer Hofmann

Edited by

Tove H. Malloy and Ugo Caruso

LEIDEN • BOSTON 2013

Library of Congress Control Number: 2013945269

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.nl/brill-typeface. ISSN 2210-2132 ISBN 978-90-04-21441-5 (hardback) ISBN 978-90-04-23656-1 (e-book) Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

Table of Contents

Selected Abbreviations Introduction and Acknowledgements

vii 1

Part I

The Institution and Its Mandate

13

Chapter One

The Beginning Alan Phillips

15

Chapter Two

Ensuring Social and Economic Rights of National Minorities through the Work of the Advisory Committee on the Framework Convention Asbjørn Eide

43

Chapter Three

Advancing the Mandate in Post-Communist Countries Gáspár Bíró

63

Part II

The Mandate and the Normative Force of the FCNM

79

Chapter Four

The Role of Dialogue in the Monitoring Process of the Framework Convention Antti Korkeakivi

81

Chapter Five

Five Years After: Continuing Reflections on the Thematic Commentary on Effective Participation. The Interplay between Equality and Participation Joseph Marko

97

vi

Table of Contents

Chapter Six

Addressing Contemporary Stalemate in the Advancement of Minority Rights: Commentary on Language Rights of Persons Belonging to National Minorities Francesco Palermo

121

Chapter Seven

The Political Process of Monitoring the FCNM Tove H. Malloy

141

Part III

Working the Mandate

167

Chapter Eight

The Secretariat and Servicing the Presidents of the Advisory Committee Alain Chablais

169

A Frame with Multiple Shapes: The UNMIK-CoE Agreement Ugo Caruso

181

Working with the Language Charter Committee of Experts Stefan Oeter

205

Working with the Committee of Experts on Issues relating to the Protection of National Minorities Detlev Rein

229

The Advisory Committee and Non-Governmental Organizations Françoise Kempf

255

Chapter Nine

Chapter Ten

Chapter Eleven

Chapter Twelve

List of Contributors

269

Selected Abbreviations

Advisory Committee or ACFC CAHMIN CAHMEC

CDDH CDMC CEI CERD CM CoE CPT CSCE DGI DGII DGIV DH-MIN DH-MIN GT-DEM

Advisory Committee on the Framework Convention for the Protection of National Minorities Ad Hoc Committee for the Protection of National Minorities Ad Hoc Committee on the Implementation Mechanism of the Framework Convention for the Protection of National Minorities Council of Europe Steering Committee for Human Rights Council of Europe Steering Committee on the Media and New Communication Services Central European Initiative Committee on the Elimination of Racial Discrimination Committee of Ministers Council of Europe European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment Conference on Security and Co-operation in Europe Council of Europe Directorate General of Human Rights Council of Europe Directorate General of Democracy Council of Europe Directorate General of Education, Culture and Heritage, Youth and Sport Council of Europe Committee of Experts on Issues pertaining to the Protection of National Minorities Council of Europe Working Group on Dispersed Ethnic Minorities

viii

Selected Abbreviations

EChRML ECHR

European Charter for Regional or Minority Languages European Convention on Human Rights and Fundamental Freedoms ECMI European Centre for Minority Issues ECRI European Commission Against Racism and Intolerance ECtHR European Court of Human Rights EIDEM European Institute for Dispersed Ethnic Minorities ERTF European Roma and Travellers Forum ESP European Stability Pact EU European Union Framework Convention Framework Convention for the Protection of National or FCNM Minorities GR-C Council of Europe Rapporteur Group on Education, Culture and Sport GR-H Council of Europe Rapporteur Group on Human Rights GRECO Council of Europe Group of States against Corruption GRETA Council of Europe Group of Experts on Action against Trafffijicking in Human Beings GT-Sages Council of Europe Committee of Wise Persons HCNM High Commissioner on National Minorities ICERD International Convention on the Elimination al All Forms of Racial Discrimination IGO Intergovernmental organization IHF International Helsinki Federation INED Institut national d’études démographiques INGO International non-governmental organization KSIP Kosovo Standards Implementation Plan MG-S-ROM Council of Europe Committee of Experts on Roma and Travellers MONEYVAL Council of Europe Committee of Experts on the Evaluation of Anti-Money Laundering Measures MRG Minority Rights Group International NATO North Atlantic Treaty Organization NGO Non-governmental organization OSCE Organisation for Security and Co-operation in Europe PACE Council of Europe Parliamentary Assembly PISG Provisional Institutions of Self-Government SRSG Special Representative of the Secretary-General

Selected Abbreviations

UN UNDM

UNMIK UNSC

United Nations United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities United Nations Interim Administration Mission in Kosovo United Nations Security Council

ix

Introduction and Acknowledgements

The protection of national minorities was thrown into the international arena in the aftermath of World War I. During the peace negotiations in Paris, it became clear that numerous ‘new’ national minorities would be created and an international watchdog was required. The end of the War saw the creation of the League of Nations and a number of international minority treaties to be monitored by the League of Nations’ Commission. However, events in Europe for most of the twentieth century prevented this international approach from taking hold of the issue. At the global level, national minority rights gained some leverage with the establishment of the United Nations (UN) Human Rights Committee in 1979 under the auspices of the International Covenant on Civil and Political Rights (ICCPR) adopted in 1966. In Europe, the arguably strongest step towards protecting national minorities was taken almost three quarters of a century after the minority treaties, with the adoption of the Council of Europe’s Framework Convention for the Protection of National Minorities (FCNM) in 1995. Subsequently, the Advisory Committee on the FCNM (ACFC) was established in 1998 upon the entering into force of the instrument. Today, the FCNM sits at the top of a pyramid of international law instruments that comprise the ‘family’ of minority rights documents, or what might be called a ‘minority rights regime’. The quest, which began with the decision of the UN General Assembly on 10 December 1948 asking the Economic and Social Council of the UN to ensure that a study on ‘the problem of minorities’ be undertaken by the Commission on Human Rights and the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, reached its climax in the UN system with the adoption in 1992 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. During this quest, the UN included minority Tove H. Malloy and Ugo Caruso (eds.), Essays in Honour of Rainer Hofmann Copyright 2013 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-21441-5 pp. 1-11

2

Introduction and Acknowledgements

rights protection in Article 27 of the 1966 ICCPR on the cultural rights of ethnic, religious and linguistic minorities. Outside the UN system, the momentum was kept when, in Vienna in 1993, the Council of Europe decided to draft a document that would protect persons belonging to minorities, namely the FCNM. The ‘family’ also includes important anti-discrimination provisions, such as Article 14 of the Council of Europe’s 1950 European Convention on Human Rights and Fundamental Freedoms and Article 21 of the European Charter for Fundamental Rights and Freedoms (2000). Unlike at the time of the League of Nations, international politics is now quite accustomed to international watchdogs. Studies of international relations focus increasingly on the functioning and leverage of such institutions, especially institutions of the UN system, such as the Human Rights Committee and its reform. In Europe, the focus has been on the European Court of Human Rights and its various reforms. However, very little research has focused on European monitoring bodies, such as the ACFC. The primary aim of this volume is, therefore, to insert the ACFC’s role into this international perspective. Articles 24-26 of the FCNM provide for a monitoring system to evaluate how the Convention is implemented by the States that have ratifijied the instrument.1 It results in recommendations to improve minority protection in the States under review. The committee responsible for providing a detailed analysis on minority legislation and practice is the ACFC. It is responsible for adopting country-specifijic Opinions. These Opinions are meant to advise the Committee of Ministers (CM) in the preparation of its Resolutions. The ACFC is composed of 18 independent experts elected and appointed for four years.2 In accordance with Resolution (97)10 adopted by the CM, Members of the ACFC represent recognized expertise in the fijield of the protection of national minorities. They serve in their individual capacity, are independent and impartial, and must be available to serve on the Committee efffectively.3 FCNM monitoring cycles take place every fijive years and begin with the submission of State Reports. The fijirst cycle required States to submit a fijirst Report within one year following the entry into force of the FCNM and additional Reports every fijive

1

Resolution (97) 10: Rules Adopted by the Committee of Ministers on the Monitoring Arrangements under Articles 24 to 26 of the [FCNM], Resolution(1997)010, adopted on 17 September 1997 at the 601st Meeting of the Ministers’ Deputies.

2

See .

3

Resolution (97)10, op. cit. note 1.

Introduction and Acknowledgements

subsequent years. For each cycle, the CM adopts an outline for State Reports, 4 and questionnaires developed by the ACFC help States follow the outline while drafting. During the drafting process, States may consult with minority organizations and NGOs, which also have the option to submit their own so-called ‘Shadow Reports’. When a State Report is received by the Council of Europe, it is made public by posting it on the Council’s website. Following the arrival of the State Report, Members of the ACFC examine it using a wide variety of written sources of information from state and non-state actors. As part of the monitoring, the ACFC may carry out country visits during which it meets with government offfijicials, parliamentarians, representatives of minorities, non-governemental organizations (NGOs), specialized human rights bodies and other relevant interlocutors. A fijinal step of the examination is the drafting and adoption of an Opinion. In the ACFC, the draft Opinion is read and reviewed by the entire Committee in order to ensure agreement. The Opinion is forwarded to the State in question in order to provide it with the opportunity to make comments within a deadline of four months.5 The Opinion is also circulated to all States sitting in the CM. Four months after forwarding the Opinion it is made public by the Secretariat to the FCNM. Four months is also the deadline for the State in question to submit its comments. With the adoption of the Opinion by the ACFC and transfer to the CM for the adoption of a Resolution containing conclusions and recommendations on the implementation of the FCNM in the State in question, the monitoring process moves from the technical expert level to the political level. Once the political process is fijinalized with the adoption of a Resolution, States are expected to organize followup meetings on the results of the monitoring and in order to prompt discussions on the measures to be taken to improve minority protection. Follow-up meetings bring together actors concerned by the implementation of the FCNM—both governmental and non-governmental—and examine ways to put to practice the results of the

4

Renewal of authorizations granted to the Advisory Committee for the first monitoring cycle adopted at the CM’s 740th meeting on 7 February 2001 and monitoring of the implementation of the Framework Convention at its 835th meeting on 08 April 2003.

5

General issues related to the monitoring of the Framework Convention and Resolution, CM/Res(2009)3, adopted by the [CM] on 16 April 2009 at its 1054th meeting amending Resolution (97)10 on the monitoring arrangements under Articles 24-26 of the [FCNM].

3

4

Introduction and Acknowledgements

monitoring.6 The post-resolution phase is thus again monitored by the experts of the ACFC. When it was adopted, the FCNM did not raise much confijidence among observers. It was considered weak and without ‘teeth’. It did not have the power of a court; individuals and groups could not submit petitions. It did not have any sanction power because the fijinal monitoring decision lies with the political process in the CM of the Council of Europe, and the CM is perceived as limited in political power. Thus, the work of the ACFC appeared doomed from the beginning. However, in reality, the ACFC has turned the tide and become an efffective watchdog in Europe. Together with the European human rights regime, spearheaded by the European Court of Human Rights (ECtHR), the ACFC has created a niche for national minority rights protection that is requiring European governments to react and act. The ACFC has contributed considerably to the forming of this normative force. The secondary aim of this volume is, therefore, to examine how the ACFC has pursued this by putting the work of the Committee under a microscope. Specifijically, this volume will examine the work of the ACFC through a study of the institutional and thematic functioning of the ACFC. Institutionally, the ACFC has expanded its mandate through improvements to the monitoring process. Working procedures and reporting structures have been established and improved throughout the years. The scope and reach of the instrument has been pushed through tireless dialogue with governments. While few scholars originally included the Roma people in the defijinition of a national minority, the work of the ACFC has put a question mark to this view and practised a much more inclusive view. Thematically, the ACFC has taken on a moral role beyond that of monitoring the provisions of the FCNM. Through the establishment of the Thematic Commentaries, the ACFC has entered the body of European ‘soft’ law. This important development is not least due to the strong leadership and guidance of one eminent European scholar and expert on minority rights, Rainer Hofmann. This volume is, therefore, published in honour of Rainer Hofmann to celebrate his leadership in the area of minority rights protection. Rainer Hofmann was the fijirst President of the ACFC and has served for two non-consecutive terms, from 1998 to 2002 and again from 2008 to 2012, appointed in respect of Germany. He has not only contributed successfully to fijixing national minority rights as a stable part of minority protection at the international level in Europe through the diligent monitoring work of the ACFC, but also dedicated his life 6

For more on specific follow-up meetings, see < http://www.coe.int/t/dghl/monitoring/ minorities/4_Events/ACFC_FollowUp_en.asp>.

Introduction and Acknowledgements

to improving the lives of these groups of Europeans who have sufffered for centuries as the territory of Europe was the object of conquest and erratic border settlements. Rainer’s dedication to minority rights and the ACFC is cemented in a solid foundation of expertise, knowledge and thinking on minority rights. His interest in human rights has deep personal roots. As a boy, he used to visit his relatives in the then German Democratic Republic (GDR). The sad scenes on the German-German border, the helplessness, the dependence of the route on the decision of some offfijicers on the border have influenced him deeply. Not surprisingly, one of his fijirst published articles dealt with freedom to travel. Indeed, he became a dedicated traveller himself. He aspired to become an administrative judge. However, the opportunity to work at the Max Planck Institute for Comparative Public Law and International Law opened new perspectives. There he developed the habit of reading several newspapers daily to be sufffijiciently informed. For his personal development, the stay at the Federal Constitutional Court was of high importance, through which he started to be deeply involved in European Law and European integration. During his time as President, the ACFC went through a number of defijining moments in terms of institutionalization. During his fijirst term, the ACFC found its feet and established procedures that had not necessarily been envisaged by the drafters, but which were necessary to organize the work in a feasible manner. This period also saw the arrival of a number of new Member States to the monitoring process, which clearly requires a leader to understand and mediate the new ideas and proposals brought to the fore. During his second term, the ACFC was into the third cycle of monitoring, while still at a beginning stage for some reporting States. This was a period that began to see the fruits of the international co-operation scheme that had been begun by Rainer early on, intensifying relations with the European Union (EU) and the OSCE’s High Commissioner on National Minorities (HCNM). But it was also a period that saw the beginning of bilateral bargaining in the CM, thus requiring highly developed diplomatic skills of mediation. Rainer mastered all these challenges in his usual calm manner. Through his publications, teaching and many talks across Europe and beyond, Rainer’s contribution to the fijield of minority rights studies is invaluable. Since his early monographs on minority rights in Europe, Das Minderheitenrecht europäischer Staaten Vol. I and II (Springer, 1993/94), Rainer has published widely on minority rights in Europe. Many students are indebted to Rainer for his guidance as a mentor and teacher. Gentle in his words and genuinely gifted for teaching, Rainer has inspired students and young practitioners with his professional capacity and personal qualities. Truly passionate for his work and with a concrete and genuine ‘human touch’, Rainer continues to teach students even beyond class hours. Common

5

6

Introduction and Acknowledgements

among those who have had the privilege or are still benefijiting of his supervision and expertise is the sense of gratitude and admiration. With his leadership and capacity, Rainer has shaped the lives of many. His life highlights the importance of equating professional achievements with sincere attention to human dignity. As a colleague, mentor and supervisor, Rainer is the most generous there is with his time. While juggling the tasks of a full university professor of law at the Johann Wolfgang Goethe University in Frankfurt am Main and co-chair of the University’s Wilhelm Merton Centre for European Integration and International Economic Order with the Presidency of the ACFC, Rainer has always been available and ever present to participate in international events and to provide advice and guidance to colleagues and students alike. In addition to his primary tasks, he lends his expertise and advice to a number of governing bodies of European academic institutions dealing with minority protection. Since its founding, he has been a member and Vice President of the Executive Board of the European Centre for Minority Issues (ECMI) in Flensburg, Germany. And for a number of years he has been on the academic board of the Institute for Minority Rights at the European Academy in Bolzano/Bozen. With the very same passion and capacity he has contributed to the work of the International Law Association (ILA) and several of its Committees, including those on Internally Displaced Persons, Refugee Law and as co-rapporteur of the Committee on Reparation for Victims of Armed Conflict. His willingness to travel to support these and many other small and burgeoning institutions in Europe is unmatched. Participation in major research projects and the surrealistic levels of bureaucracy related thereto, such as the European Commission’s Framework Programme projects, does not deter Rainer. He takes the lead, sets the goals and gets to work. Seen through the lens of national minority rights protection in Europe and the dedication of Rainer Hofmann, this volume of essays proposes to revisit the importance of the internationalization of national minority protection through normative means. The volume of essays in honour of Rainer Hofmann will thus contribute to the expansion of our knowledge about the internationalization of minority rights protection through a broad analysis of the role and work of the ACFC. To our knowledge, no academic volume has focused specifijically on the ACFC and, while academic discussions have emerged around issues such as the ACFC’s inclusion of the Roma people in the scope of the instrument, an academic analysis of the ACFC’s work has not been offfered. We propose to do this in three steps. Part I will examine the moral force of the FCNM through the work of the ACFC and its mandate in terms of the institutional framework. How has the ACFC adjusted to the realities of the mandate giver and the mandate benefijiciaries? The mandate of

Introduction and Acknowledgements

the ACFC is designed and decided by the political decision makers of the Council of Europe. But as the chapters of Part I demonstrate, the mandate is quite often fleshed out in close co-operation with the President of the ACFC. Moreover, the mandate has a life of its own when the monitors hit the road. Not only must it incorporate all sectors of society, including the socio-economic spheres, but it must also adjust to historical facts in the Member States, including legacies from the Communist era. The contributors to Part I have all been close to the issues that developed the mandate over the years as holders of leading positions in the ACFC. Alan Phillips sets the stage for Part I by introducing us to the early discussions and deliberations in the ACFC during the fijirst tenure of experts from 1998 to 2002. During this period, Rainer Hofmann presided over discussions that addressed a number of difffijiculties and obstacles to be overcome by the Committee. Phillips describes these discussions, as well as the deliberations in the Committee, and highlights the fact that against all expectations, the relationship between the ACFC and the CM developed much better than hoped. Early expectations also questioned the scope of the mandate in the area of socioeconomic rights since these were not explicitly enumerated in the FCNM. Asbjørn Eide takes up this issue in Chapter 2, in which he describes the early determination by the Committee and Rainer Hofmann to also focus on socio-economic rights. To illustrate the challenges, Eide discusses the issues that minorities face in the fijield of social and economic life. Finally, in a stream-of-conscience type contribution in Chapter 3, Gáspár Bíró takes us into the arguably most difffijicult aspect of the existence of the FCNM, the adaptation of the instrument in post-Communist countries and vice versa. Bíró raises some of the most difffijicult issues that the monitors were faced with in the region, including aspects of awareness-raising in civil society and the citizenship issue, which is not clear in the text of the FCNM. Part II moves from the institutional level of the mandate to the normative level of the FCNM as an international human rights instrument that empowers the experts who monitor it. In other words, how has the ACFC used the normative force of the FCNM? Has it sought to expand the powers of the instrument? And how has this side of the monitoring been received? This will include a discussion of the dialogue tool that was adopted early on in the work of the ACFC. Direct dialogue with governments was not initially envisaged as an important part of the monitoring process. Nor was the idea of drafting thematic approaches to monitoring initially foreseen. The Thematic Commentaries have, however, become a forceful part of the soft normative power of the FCNM, joining ranks with thematic approaches of other watchdog mechanisms. Finally, Part II will examine how the political process of monitoring is played out in order to show that the ACFC is not an island in a normative ocean

7

8

Introduction and Acknowledgements

of good intentions, but also lives a very real life in the corridors of diplomacy. The contributors to this Part have been directly involved in the development of these tools, except for the contribution on the political process which is, as appropriate to the task, based on observation. In Chapter 4, Antti Korkeakivi takes us right into one of the most debated aspects of the life of the mandate: the role of dialogue in exercising and expanding the mandate. Again Rainer Hofmann’s influence is highlighted and exposed. The manner in which Rainer Hofmann moulded dialogue into the foundation of the monitoring cycles is referred to by Korkeakivi as an art, and the artist is today responsible for a painting that prompts dialogue rather than mere reporting. It is fascinating reading about how the ACFC went from interpreting the mandate in terms of dialogue to practising dialogue and thereby making the monitoring process more transparent. Thematic Commentaries are yet another tool that was created during Rainer Hofmann’s fijirst tenure as President. Topics and concepts deemed essential to the interpretation and understanding of the FCNM’s provisions have been objects of scrutiny already three times. In Chapter 5, Joseph Marko, the author of the second Commentary on participation offfers an updated discussion of the relationship between equality and participation. The relationship between these two concepts has developed through the narratives of a number of court decisions at both the national and the inter-governmental level and as a result of the improved understanding of discrimination, especially the structural aspects of direct and indirect exclusion. Hence, a foundation for positive protection in Europe is emerging that influences the way in which the FCNM is able to monitor efffective participation. More recently, a Thematic Commentary on linguistic rights was adopted by the ACFC in 2012. Francesco Palermo explains in Chapter 6 how the tool has become perfected over the years and indeed now represents a very sophisticated part of the monitoring of the instrument. The need to explain the challenges and complexity of minority rights requires Commentaries to be part of the tool-kit of the monitors. Palermo takes us through a very exciting discussion of how the monitoring of linguistic rights in the FCNM has developed from merely looking at the use of language to including aspects of identity preservation. The last contribution on the normative force of the FCNM turns to the second and fijinal part of monitoring, the procedure of adopting the Committee of Minister’s Resolutions. When the experts have fijinalized assessing the compliance of States, the process is handed over to the political decision-makers of the Council of Europe who hold some power to make States comply. However, the role of the President of the ACFC is never fijinished, and a good President still feels responsible. Rainer Hofmann was no exception. His frustrations in the case of a few processes were evi-

Introduction and Acknowledgements

dent. This is why in Chapter 7 Tove Malloy argues, through the analysis of six case studies, that unlike the earlier years of the instrument, the monitoring process has been slowed down by bargaining in the CM. Unlike the smooth 12-month processes characteristic of the earlier years, the six cases discussed lasted up to several years and some have not yet been passed. This puts the FCNM in a difffijicult light as if it is no longer enjoying the support it did. If the trend continues, the normative power of the instrument may come under stronger pressure. Part III is the main part of the volume. It seeks to show how the nuts and bolts of monitoring hold together the machinery that makes the ACFC run smoothly. This means examining the work of the Secretariat to the FCNM and how the stafff members service both the President and the Members of the ACFC, as well as the CM. It also brings in the growing importance of the FCNM and the ACFC’s cosmos in terms of co-operation with several like bodies and mandates both within the Council of Europe and outside. Inter-agency co-operation has for years been an Achilles heel of the international community, both in in normative or development work. As the most important leader of what may eventually become Europe’s ‘minority acqui’, the ACFC is forced to take a lead in the effforts to co-operate and not duplicate and step on each others’ toes. This includes the ever growing NGO sector of human rights politics. Part III therefore examines important mechanisms, such as the Expert Group to the European Charter for Regional or Minority Languages (EChRML), the Committee of Experts on Issues Relating to the Protection of National Minorities (DH-MIN), the UN Interim Administration Mission in Kosovo (UNMIK) and the NGO world. Most of the contributors to this Part are experts who have been involved in the ACFC’s co-operation with these mechanisms. In Chapter 8, Alain Chablais begins the discussion of this Part with an examination of the work of the Secretariat and its servicing of the Presidents, as well as the ACFC. This relationship, Chablais argues, is rarely if ever analyzed scientifijically even though it is crucially important for the smooth functioning of the FCNM machinery. The autonomy of the Secretariat is one vital aspect of this machinery. Here the ability of the Secretariat to continue working independently in spite of numerous Council of Europe reform cycles and zero-budget aims is highlighted precisely because it is required in order to support the mandate. The fact that a virtual ‘acqui’ of governance has emerged over the years within the Secretariat, Chablais attributes in large part to the good co-operation that existed during the eight years that Rainer Hofmann served as its President. The mandate was not envisaged to reach into controversial successor state formation, such as the case of Kosovo. Nevertheless, a special arrangement in the monitoring of the FCNM was made with the United Nation’s Interim Administration

9

10

Introduction and Acknowledgements

Mission in Kosovo (UNMIK). In Chapter 9, Ugo Caruso discusses the technical agreement reached between the two institutions, the Council of Europe and UNMIK. While the Agreement provides for an innovative approach to monitoring minority rights in a contested geographical space, it also poses a number of problems in terms of implementation. The Chapter provides a good basis for understanding the work of the ACFC in a broader perspective than the government/expert dichotomy. The external ‘life’ of the FCNM as an instrument in a larger perspective of European peace and security, as well as European integration, becomes vivid in Caruso’s discussion. Co-operation between the ACFC and other mechanisms and instruments in the European minority rights regime has become a very important and relevant part of monitoring. A number of mechanisms now co-operate trans-laterally and on a thematic and issue basis. That this is not always an easy task is illustrated in Chapter 10 by Stefan Oeter, who discusses the co-operation between the arguably two most important instruments of the Council of Europe’s minority regime, the FCNM and the EChRML. Although the two instruments have similar monitoring structures, and even though the Council of Europe has sought to streamline the Secretariat support, the logic of co-operation is not linear. A body of the European minority rights regime that leads a somewhat clandestine life is the DH-MIN. This is a Council of Europe forum of inter-governmental co-operation on the protection of national minorities that has existed on and offf since 1992. In Chapter 11, Detlev Rein examines this at times turbulent existence of a forum which, as he reports, has had three lives at this point. Parallel to the ACFC, the DH-MIN also issues thematic reports and documentation in support of the overall aim of protection. Currently, the work of the DH-MIN is ‘suspended’ but, as Rein argues, a cat has many lives. Last but not least, co-operation with minorities and civil society has become a very important part of the monitoring process. While representatives of minorities were not invited to contribute during the drafting of the FCNM, the participation of minorities in the monitoring process has been an essential part from the beginning. Francoise Kempf examines, inter alia, the relationship between the European Roma and Travellers Forum and other civil society organizations, and she highlights in particular the increased participation in the drafting of the Thematic Commentaries. The need to build alliances also contributes to rendering the monitoring process more transparent. All contributors to this volume have worked at some point with Rainer Hofmann, either in his capacity as President of the ACFC, or in academia or in his professional capacity as an expert. We are grateful that all contributors have joined us so enthusiastically in this project to celebrate not only Rainer but also the work of

Introduction and Acknowledgements

the ACFC. We know this would be a desire in Rainer’s heart. We would like to thank all contributors for their co-operation. As always with publication projects, the fijinal moments of submission and review require extra effforts from key persons in the process. We would like to thank Kelley Thompson for her diligent work and flexibility throughout the review process. And Lindy Melman at Brill Publishers deserves many warm thanks for being patient and co-operative until the end. We wish Rainer Hofmann many productive years still to come and hope that he will fijind this modest liber amicorum warming. Tove Malloy, Ugo Caruso with Mahulena Hofmann

11

Part I The Institution and Its Mandate

Chapter One The Beginning Alan Phillips

I.

Introduction

This chapter offfers an overview of the work of the Advisory Committee on the Framework Convention for the Protection of National Minorities (hereinafter “Advisory Committee” or ACFC) in its fijirst period from 1998. It covers the early discussions and deliberations that were presided over by Rainer Hofmann at the Council of Europe (CoE) in Strasbourg, while the author was the fijirst Vice President. It provides some reflections on the early difffijiculties and obstacles and how these were tackled in the fijirst four years. The end of “the beginning” is somewhat arbitrary; it has been chosen as when the ACFC changed nine of its 18 expert Members in June 2002 and the author then left the Committee. The success of the Framework Convention for the Protection of National Minorities (hereinafter “Framework Convention” or FCNM) needs to be assessed on what diffference it made. The primary indicators would be how far the Framework Convention met its own objectives that are described in its Preamble. States should protect the existence of national minorities reinforcing stability, democratic security and peace in Europe. The Preamble highlights the inter-relationship between a pluralist and genuinely democratic society and the enabling of persons belonging to national minorities to express, preserve and develop their identity. It also gives emphasis to the creation of a climate of tolerance and dialogue as necessary to enable cultural diversity to enrich society. Outcome indicators are always difffijicult to assess, particularly in this case. The fijirst monitoring Reports and Opinions on its implementation are fijirst of all needed to formulate a baseline for each community in each country, as the realization of minority rights is a long term process usually taking years and often taking decades to mature. A somewhat more realistic measTove H. Malloy and Ugo Caruso (eds.), Essays in Honour of Rainer Hofmann Copyright 2013 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-21441-5 pp. 15-42

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Chapter One – Alan Phillips

ure to use is identifying outputs by showing what products and processes were established in these four years. These will be measured against the baseline of the recommendations made by two key independent organizations: the European Centre for Minority Issues (ECMI) and Minority Rights Group International (MRG), while a consideration of the processes and co-operation that developed will be an important part of this review. II.

The Historical Context

The beginnings of the Framework Convention may be traced to the end of Communism in Eastern Europe and the collapse of the Soviet Union. It is important to place the Framework Convention in a historical context to understand the challenges that the Advisory Committee faced at the outset. The Framework Convention was the fijirst legally binding, international instrument dedicated to minority protection. It emphasized that this protection is an integral part of the protection of human rights, and that the historical and global perspectives of the rights of minorities can be traced back centuries.1 The fijirst major step towards the Framework Convention was taken by the then Conference on Security and Co-operation in Europe (CSCE) with the adoption, on 29 June 1990, of the Copenhagen Document of the Conference on the Human Dimension, Part IV of which contains detailed standards relating to minorities. Although not a legally binding instrument, it served as a most important basis for the further development of minority-related afffairs in Europe. The CSCE had a profound understanding of how sustainable peace could be protected by physical and democratic security. It was the preparatory work of nongovernmental organizations (NGOs) and minority organizations, including MRG and the International Helsinki Federation (IHF), that was a source of inspiration to the States at the CSCE Copenhagen meeting. The organizations held a conference on minority rights in Europe within the Danish Folketinget in March 1990, which came forward with important recommendations.2 These were widely disseminated and advocated with governments throughout Europe. The author was at the CSCE

1

Patrick Thornberry, International Law and the Rights of National Minorities (Oxford University Press, Oxford, 1991), 38ff and Asbjørn Eide, “The Framework Convention in Historical and Global Perspective”, in Marc Weller (ed.), The Rights of Minorities (Oxford University Press, Oxford, 2005), 25-47, at 25ff (33ff.).

2

Minority Rights Group/Danish Helsinki Committee, “Report on the Conference Policies and Practices in South East Europe May 1990”.

The Beginning

Human Dimension meeting as an NGO member of the UK delegation and was able to see this process in action.3 It was suggested that an even more important step, however, was taken when the OSCE established the position of a High Commissioner on National Minorities (HCNM) as an instrument of “conflict prevention”, 4 a role that involved a very practical engagement. In 1992, once again, a civil society organization played a timely role in encouraging the Dutch government to promote the offfijice of the HCNM at the CSCE Human Dimension meeting in Helsinki.5 In all these discussions and in the drafting of the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UNDM) at the UN Working Group on the Declaration,6 there were some public debates that included a limited number of civil society organizations and representatives of national minorities. The Framework Convention itself was drafted quickly in 1994 by an ad hoc committee of the CoE. This was helpful in making up for lost time but was in some ways unhelpful. The draft was negotiated within a year by the then CoE Member States in camera, with no efffective participation of civil society organizations. Although the text itself referred under Article 15 to “the efffective participation of persons belonging to national minorities”, this was not part of the methodology of this working group. Consequently when the Convention was adopted by the Committee of Ministers (CM) and opened for signature and subsequent ratifijication in 1995, there was much criticism of the draft from some scholars and minority organizations. They wanted a stronger text and were more used to the more inclusive negotiat3

In view of the later importance of this document, it is interesting to note that this topic would not have been on the agenda of the meeting as it was argued by many western countries at a preliminary “informal meeting” that there could never be a consensus. It was only through the Pentagonale Group and the persistent interventions of Hungary, which stated that without this issue being discussed there would be no consensus on any issue, that national minorities became a topic for a working group.

4

DH-MIN, The Impact of International Norms on the Protection of National Minorities in Europe: The Added Value and Essential Role of the [FCNM]−Report Prepared by Rainer Hofmann, DH-MIN(2006)018, dated 5 December 2006, s. 27.

5

The significant role of MRG in lobbying the Netherlands and other governments is shown through the Dutch government papers reviewed in Olivier A.J. Brenninkmeijer, “The OSCE [HCNM]: Negotiating the 1992 Conflict Prevention Mandate”, 5 Graduate Institute of International Studies−PSIO Occasional Papers (2005), 200.

6

Alan Phillips and Allan Rosas (eds.), Universal Minority Rights (Åbo Akademi University Institute for Human Rights, Turko, 1995).

17

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Chapter One – Alan Phillips

ing processes of the UN.7 It was suggested that this speed of drafting was one of the reasons for the weakness of the Framework Convention. Scholars early on noted that there had been a multitude of compromises between diverging views of the governments of the CoE Member States, and the Framework Convention was not wholly satisfactory, yet probably the best one could get.8 In 1995, the Framework Convention was open for signature. By 1998, 18 States had ratifijied the Convention and it came into force. During this time the bloody civil war in former Yugoslavia had come to end with the Dayton Agreement. Issues in Kosovo were unresolved and the aftermath of violent conflicts in the southern Caucasus had left intercommunity relations in tatters, while tensions remained high both in Central Europe and in the Baltic States. In many western countries there were tensions involving second generation migrants,9 while discrimination toward Roma10 had reached endemic proportions in many parts of Europe. Many post-Communist states were in the process of applying for membership of the European Union, which demanded three main criteria, the fijirst of which was the stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities.11 Consequently the views of members of minorities themselves were particularly important at this stage. These views were subjective indications of the situation, but also revealed how far minorities were engaged in the democratic processes and in expressing their identity. Entering into dialogue with minority communities was important in establishing how far members of those communities had confijidence in the Framework Convention, including the standards, the procedures and the monitoring mechanisms. However dialogue with members of national minorities was not a concern of the CM either in the drafting of the Framework Convention itself, which calls for the efffective participation of persons belonging to national minorities on issues particularly afffecting them (Article 15), or in drafting the procedures on the 7

Thornberry, op. cit. note 1.

8

Stefan Troebst, “Preface”, in María Amor Martín Estébanez and Kinga Gál (eds.), “The ECMI Flensburg Conference Report on Implementing the [FCNM] June 1998” ECMI Report No. 3 (1999).

9

This is shown in the country monitoring reports of the European Commission against Racism and Intolerance (ECRI), available at .

10

Jean-Pierre Liegeois and Nicolae Gheorghe, Roma/Gypsies: A European Minority (Minority Rights Group, London, 1995).

11

Final Statement of the EU Council Meeting, Copenhagen 1993, at .

The Beginning

composition, election and appointment of the Advisory Committee (CM Resolution 97(10)) in 1997. This Resolution covered a wide range of issues on the appointments to the Advisory Committee and how it should conduct its work. It ensured that substantial responsibilities were delegated by the CM to the ACFC. Nevertheless this Resolution was criticized by a number of important actors.12 III.

Shortfalls in the Framework Convention

A.

Initial Criticism

The Introduction has pointed out that when the Framework Convention was adopted it was considered weak by many observers. It did not have the powers of a court or any powers of sanction, while the fijinal decisions would not be based on its Opinions but on CM Resolutions. It appeared doomed from the beginning. There was a series of academic articles and criticisms of the Framework Convention. The most substantial of these came from a distinguished scholar, Alfredsson, who had been intimately involved in drafting the UNDM and had rich experience working with minorities and international non-governmental organizations (INGOs). At a meeting in the Council of Europe before a wide audience of representatives of governments, minorities and the Advisory Committee itself, Alfredsson noted that [t]he Framework Convention is characterized by a series of shortcomings, as compared with minority-specifijic provisions in human rights instruments adopted by other international organizations. These shortcomings include the programmatic formulation of the Framework Convention, the limited scope of the special measures called for in order to eliminate discrimination and to achieve dignity and equal rights, weak wording and frequent qualifijications in the text, the absence of group rights, a monitoring instance relying only on the examination of State reports, political control over the monitoring body, and the apparent opening for States to arbitrarily identify minorities which are entitled to protection under the Framework Convention, thus implying the rejection of other groups.13 12

The ECMI Conference was attended by many leading actors in minority rights in Europe and its Report contains many of these criticisms in diplomatic language. See Estébanez and Gál, op. cit. note 8.

13

Gudmundur Alfredsson, “A Frame with an Incomplete Painting: Comparisons of the FCNM with International Standards and Monitoring Procedures”, 7 International Journal on Minority and Group Rights (2000), 291-304, at 4. In the article the author noted that this

19

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Chapter One – Alan Phillips

Even broadly sympathetic scholars suggested that it resembled a very wide-meshed net that contained a great number of large holes. It was suggested that each government intending to slip through the net would no doubt succeed. However it was noted that exactly this high degree of vagueness in the Framework Convention’s wording left room for interpretation in a more positive direction.14 It remained to be seen if this threat was indeed an opportunity and its flexibility was a strength.15 The historical context of this being the fijirst legally binding, international instrument devoted to minority rights and the expectations that both the CSCE in 1990 and the UNDM in 1992 had created was always going to be problematic in practice. Expectations were high, which presented a major challenge for the Advisory Committee at its outset. It not only had to tackle the substantial criticisms that had been made within the limitations on its mandate imposed by the CM, but it also urgently needed to create a climate of goodwill. These would be prerequisites for the efffective participation of both governments and minorities in promoting the Framework Convention and transforming it from paper into practice. The Convention had no efffective enforcement regime, except the peer group pressure of other States, and the possible need of a State to be seen to be implementing this standard for CoE and EU membership. IV.

1998: The Beginning of the Advisory Committee

In the fijirst half of 1998, as many States were ratifying the Framework Convention and looking at nominating an expert, and while the CoE was considering how it would manage the operations of the Convention,16 there was signifijicant action among relevant international organizations, particularly MRG and ECMI.17

article is to a large extent based on a presentation to a CoE Minority Rights Seminar in Strasbourg in October 1998. 14 15

Troebst, op. cit. note 8. Frank Steketee, “The Framework Convention: a Piece of Art or a Tool for Action?”, 8(1) International Journal on Minority and Group Rights (2001), 1-15.

16

Resolution (97) 10: Rules Adopted by the [CM] on the Monitoring Arrangements under Articles 24 to 26 of the [FCNM], Resolution(1997)010, adopted by the CM on 17 September 1997 at the 601st meeting of the Ministers’ Deputies.

17

Professor Rainer Hofmann was already a distinguished scholar by 1998, based at the University of Kiel and sitting on the ECMI Executive Board.

The Beginning

MRG published a timely report 18 based on its wide experience with both of the OSCE Human Dimension process and the UN minority rights mechanisms, including the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), as well as extensive consultations with minority organizations. This report was widely disseminated in the spring of 1998 to interested parties, including intergovernmental organizations (IGOs), INGOs, governments and minority organizations. It was highly influential as it was immediately available to experts, governments and minorities. A little later ECMI convened an important conference in Flensburg in June 1998, shortly before the fijirst meeting of the ACFC. The conference included academics, minority representatives, some government offfijicials, experts from UN treaty bodies, members of the CoE Secretariat, IGOs, INGOs and other important contributors. The substantial report 19 of the conference was published a year later and its recommendations were well known to the fijive Members of the ACFC who attended the meeting.20 It should come as no surprise that the recommendations of MRG’s report and the ECMI conference were very similar, as the MRG report was available to all participants. Nevertheless the conference report considered issues in more depth and had a breadth of participation from all sectors; this helped compensate for the delay in its publication with its detailed review of the application and interpretation of the text of the Framework Convention itself. The recommendations came in seven main headings. A.

Ratifications

A fijirst recommendation was that all countries of Europe should ratify the Framework Convention. It was suggested that States Parties should refrain from reservations and interpretative declarations.

18

Minority Rights Group International, Analyses and Observations of the FCNM Monitoring Mechanism (MRG, London, 1998.)

19

Estébanez and Gál, op. cit. note 8.

20

These included Rainer Hofmann and the author of this chapter, who were to become, respectively, the President and the First Vice President of the Advisory Committee by the end of the month. Gáspár Bíró was elected the Second Vice President in the threeperson Bureau.

21

22

Chapter One – Alan Phillips

B.

Information and Training on the Framework Convention

There was wide agreement that States and the CoE, as well as other IGOs and NGOs, should cooperate together to disseminate information on the Framework Convention, as well as on the mandate and work of the ACFC. It was suggested that this might be done through the organization of conferences, seminars and workshops. It was well understood that it was important for the Advisory Committee to have relevant and reliable information, ensuring that it was not overwhelmed by well-meaning or self-interested parties that would be difffijicult to manage and might raise untoward expectations of what the ACFC could do. To overcome this, MRG proposed that the CoE support activities to inform and train minority representatives on the Framework Convention and its monitoring mechanism. Another proposal was that the CoE should prepare a handbook that would include the text of the Framework Convention, the Explanatory Report, CM Resolution 97(10), information on reporting under the Convention, procedures and mechanisms by which members of minorities could address their concerns to the ACFC. It could be translated into the national languages of Member States and into minority languages. A more ambitious suggestion was that the Council of Europe should disseminate information on good practice on the protection of minorities and the improvement of interethnic relations. A more straightforward recommendation was that the Annual Reports of the Advisory Committee should be made available to the public. C.

Functioning of the ACFC

1.

Rules of Procedure

It was left to the Advisory Committee to draw up its own rules of procedures, ensuring that how it was going work was well understood and respected. It needed to draw up manageable timeframes for the preparation and studying of State Reports and to consider how it would collect data. It had to consider how to deal with delays that were a serious problem for UN treaty bodies. ACFC formal reporting to the CM was a crucial element and that would depend on good will among the CM. Within its own meetings, the Committee would need to agree on the procedure for conducting its work. 2.

ACFC Membership

Each member was nominated by States that were party to the Framework Convention, but elected by the CM on the basis of having “recognised expertise in

The Beginning

the fijield of the protection of national minorities” (Article 26 FCNM). They were required to serve in their individual capacity and to be independent, impartial and able to serve the Committee. At the outset there were concerns in organizations such as MRG and IHF on how independent the 18 experts would be, in the knowledge that in the UN treaty monitoring bodies like the Committee on the Elimination of Racial Discrimination (CERD), alongside capable and independent experts, there were too often currently serving ambassadors or the partners of leading politicians. Furthermore there were concerns that there should be international human rights lawyers, but additionally a multidisciplinary approach was needed. It was important to include people with practical experience of implementing legislation and policies through programmes. There would be a value in having Members with experience of other international monitoring bodies and those who would also have the confijidence of minority communities. How independent experts were in practice and their breadth and depth of experience was clearly going to be crucial for the respect of the Advisory Committee, as a competent, impartial and objective body that was independent of both governments and minorities. It was proposed that the procedures by which States nominated Members for the ACFC, and the method by which the CM itself selected the Members, should be transparent and public. The procedures should fijirst allow suggestions and comments to be made by interested parties, including minority communities. It was mooted that in the future the ACFC itself might make suggestions on what candidates were needed to balance the team. 3.

ACFC Secretariat and Resources21

An important prerequisite was that the CM should provide the ACFC with a sufffijicient Secretariat and fijinancial support; those with detailed treaty monitoring experience realized that this might be a serious problem. 4.

Timely and Adequate Reports

The Reports by States to human rights treaty monitoring bodies were often uneven and too often did not provide information on de jure and de facto measures taken by national and local government bodies on minorities. It was recommended that the ACFC should draw up reporting guidelines with detailed instructions for reporting to States on what legal and factual information they needed to supply on each article of the FCNM. There would be a particular need in the fijirst round of reporting for 21

Estébanez and Gál, op. cit. note 8.

23

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Chapter One – Alan Phillips

States to include basic information on the country’s legal, administrative and judicial structures relevant to national minorities. 5.

Transparency on Monitoring

In drafting the Framework Convention, the Explanatory Report was clear that there could be no consensus on a defijinition of the term “national minority”. A signifijicant number of States had entered Declarations on whom they believed should be considered as national minorities within their State. Questions remained on how the ACFC would treat these Declarations and whether they would be set in stone. Furthermore it was unclear in other countries which groups States Parties would include. Consequently there was a demand from several sources that this issue should be tackled in good faith and in a transparent manner by States Parties, the ACFC and the CM. D.

Sources of Information

1.

Range of Sources

The CM had already agreed that the ACFC could invite States Parties to meetings.22 However although the ACFC could receive information from other sources, it could only invite information from other sources after notifying the CM of its intention to do so. There were concerns that the CM might be restrictive and limit the scope of what information could be sought from whom. 2.

Protection in Practice

There was no authorization for visits to States or any encouragement to hold meetings with minorities either on an ad hoc or regular basis, which again was criticized by NGOs with a clear recommendation that visits should take place. 3.

Dialogue

The Framework Convention was intended to be a confijidence building measure to enhance democratic security. Consequently it was suggested that there should be a constructive dialogue between minorities and States, which should seek comments 22

Resolution (1997)010, op. cit. note 16, para. 32.

The Beginning

from interested parties when the State Report was still in draft form, so that these comments could be considered for inclusion in the fijinal Report. 4.

Relations with INGOs

NGOs recommended that the ACFC should receive comments on the State Reports from a variety of sources, including academic institutions, IGOs, NGOs and INGOs and minority communities. 5.

Relations with other IGOs

It was recommended that information should be sought from organs and bodies of the Council of Europe, such as the Parliamentary Assembly (PACE) and the European Commission against Racism and Intolerance (ECRI). E.

Application and Interpretation

1.

Minimum Standards

In light of the weakness of some of the language in the Framework Convention and observing some of the Declarations that had already been made, it was important to ensure that States understood that the Convention represented minimum standards that they should always seek to exceed and not to reduce any existing commitments. 2.

Other Human Rights Standards and Mechanisms

There had been a wide body of work in standard setting and in their practical application by the OSCE, the UN and the CoE on minority issues. This authoritative work and richness of experience needed to be embraced in the work of the ACFC. 3.

Bilateral Agreements

Bilateral agreements involving minority issues had been negotiated in many countries of Central and Eastern Europe in recent years and these needed to be taken into account.

25

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Chapter One – Alan Phillips

4.

State Report Guidelines

The body of experience gained by the diffferent treaty bodies during their examination of State Reports could be of help both for the ACFC in the examination of Reports and for the States in preparing these Reports. Therefore, the ACFC as well as the States Parties, should take into account the reporting guidelines of treaty bodies. 5.

Committee of Ministers

Crucially there were many concerns that the CM would dilute and delete some of the Recommendations of the ACFC, while any critical fijindings would not be well known to civil society, including minority communities. There were concerns that those recommendations that did emerge would not be reviewed by States and minorities together and that recommendations might not be implemented. V.

The Advisory Committee Work: Meeting the Challenges

The Advisory Committee held its fijirst meeting at the end of May 1998, when its 18 Members came together for the fijirst time. It was known from the outset that a wellfunctioning monitoring mechanism could substantially contribute to overcoming some of the pitfalls of diffferent and restrictive interpretations. The two main stakeholders in the Framework Convention were States Parties’ governments and members of minorities. In what was often a controversial fijield, it was essential that both should play a constructive and cooperative role, where processes of engagement were crucial in this highly political domain. It was equally important to ensure the integrity of this unique instrument of international law and ensure high quality legal interpretations of the text in practice. Consequently, in the early meetings, there were substantial debates to ensure harmonized interpretation by the Committee, while processes of engagement were carefully developed. It was recognized that only after a substantial number of Opinions had been formed could the approach be sophisticated and nuanced based on the evidence found on the implementation of minority rights. Similarly, as new processes of consultation with governments and minority community were being developed, the ACFC would have to learn what was most efffective with the resources available. At the outset, the ACFC set about its work. Although there were only two members of the professional Secretariat, with support stafff, the Committee was particularly fortunate to have two stafff, Antti Korkeakivi and Frank Stekete, who were not only capable lawyers, but also had a rich experience of working with civil society. They were committed

The Beginning

well beyond the formal job description and formed an excellent working relationship with the Committee and also the Bureau. All worked together as a capable and committed team bringing diffferent experiences and talents to the challenge ahead. In the following four years, the Advisory Committee held 14 one week meetings in Strasbourg between June 1998 and May 2002, received 28 State Reports, undertook 20 country visits, adopted 19 Opinions, most by consensus, that lead to 11 Resolutions adopted by CM. The Bureau 23 and the Secretariat, led by the President, attended innumerable meetings, training courses, seminars and conferences, both within the CoE and throughout Europe, to promote the development of the impact of the FCNM. The following section reviews the progress that was made in meeting those early challenges, particularly those set by the MRG recommendations of 1998 and those of ECMI in 1999. A.

Ratifications

By May 2002, 35 of the 44 CoE Members States ratifijied the FCNM. All the CoE applicant States were obliged to ratify the Framework Convention, while the EU considered States’ implementation of the Framework Convention as an important factor in its accession criteria on minority rights.24 However, Belgium, France, Greece, Luxembourg and the Netherlands had not ratifijied this Convention and, while Germany and particularly Denmark had done so, it was with the entering of Declarations attempting to limit the potential benefijiciaries of the Convention. The ACFC discussed how to approach this issue at its fijifth meeting,25 taking additional expert advice. The conclusion was to take a pragmatic approach and to endeavour to persuade States to take an open approach on an article by article basis.26 Some States ratifijied the Framework Convention but failed to make this widely known 23

The Bureau, comprising Rainer Hofmann, Alan Phillips and Gáspár Bíró, worked well as a team. They regularly held informal, discrete dinners with certain key ambassadors to seek advice on policy issues with the CM and to share with them procedural and organizational concerns. These dinners never discussed Opinions, but were confidence building measures that proved crucial for obtaining the support of the wider CM.

24

Final Statement of the EU Council Meeting, op. cit. note 11.

25

ACFC, Meeting Report 5th Meeting 13-16 September 1999, ACFC(99)13, dated 25 October 1999, at .

26

This is approach is explored more fully later in this book as is contextual to the language in each article of the FCNM.

27

28

Chapter One – Alan Phillips

domestically.27 In 2002 the prospect of the Convention being accepted as part of European Community law, or acquis, by the EU remained far away. Nevertheless the Framework Convention had quickly become one of the CoE treaties with the highest rate of membership.28 B.

Information and Training on the Framework Convention

The early Committee minutes29 show that the ACFC at the outset held meetings with other monitoring bodies of the CoE and was invited to various events, including meetings of European Ombudsmen, where it discussed cooperation and promoted the Framework Convention. One of the most important aspects of the Framework Convention has been the way that civil society organizations have used it. International NGOs have played a major role in publicizing and promoting the Convention internationally and working with local partners, a number of whom have used the Framework Convention to promote minority rights in their countries. This has included local and Europe-wide training workshops on the Convention, translation of the Convention and publication of a training manual in many languages by MRG,30 as well as the organization of local workshops and conferences to publicize the Convention.31 The EU, the CoE and some other donors have been supportive, although much more work was needed to transform the analysis into action. Academics played their part in offfering reviews and criticisms of the FCNM, not least of all the President of the ACFC, Rainer Hofmann, who wrote regularly for authoritative law journals on this subject. The CoE itself published the fijirst collection of texts about the Framework Convention in May 1999, and a second collection of texts adding to the Convention itself in 2001, i.e. the Explanatory Report, CM Resolution (97)10 and the outline for State Reports and the Rules of Procedure of the ACFC with details on Signature, Ratifijications, Reservations and Declarations. 27

Alan Phillips, FCNM: From Analysis to Action (MRG, London, 2002), at 4.

28

Rainer Hofmann, “Protecting the Rights of National Minorities in Europe: First Experiences with the [CoE FCNM]” in 44 German Yearbook of International Law (2001), 237-269, at 239.

29

ACFC Meeting Reports available at .

30

Catharine Barnes and Manon Olsthoorn, The [FCNM]: A Guide for Non-Governmental Orga-

31

Phillips, op. cit. note 27.

nizations (MRG, London, 1999).

The Beginning

In the Reports by State Parties on the implementation of Framework Convention, States were invited to highlight measures, practices and policies that they considered to have worked particularly well, but such value judgements were rare. Similarly, States were invited to indicate issues on which they would particularly welcome the support and the advice of the Advisory Committee. In almost all cases this did not happen.32 The Annual Reports33 (Activity Reports) to the CM did encourage a broader approach by States. However, the need to promote a wider personal scope of application of the Framework Convention required dialogue with each State, demonstrating what advantages and disadvantages there would be in such an approach; it would demand support by local civil society action and high level approaches by the Secretary General of the CoE. Such resources were not available to promote a broader approach. C.

Functioning of the Advisory Committee

1.

Rules of Procedure

The fijirst tasks of the Committee were to adopt its Rules of Procedure and then elect its Bureau. Fortunately the Secretariat had anticipated this and listened carefully to the advice of others in the CoE and also at the ECMI meeting in Flensburg. These were adopted at the fijirst two meetings thanks to the excellent preparatory work of the Secretariat. The consensus that was achieved on this at the outset and the excellent working relations between all Members of the Bureau and with the Secretariat was crucial. It helped in resolving issues and diffferences of opinion within the Committee, and helped to develop a constructive, trusting relationship between the ACFC and CM. This was seen by the way the CM endorsed without amendment the Advisory Committee’s proposals on the Rules of Procedure of the ACFC and the outline for State Reports. At a later stage the ACFC received the approval to change its Rules of Procedure on information from sources other than the State Parties directly concerned and a mandate for the ACFC to hold meetings with various actors, which this chapter will come to later.

32 33

Ibid, 5. ACFC Activity Reports available at .

29

30

Chapter One – Alan Phillips

2.

ACFC Membership

Membership of the ACFC came through an expert being nominated by a State Party and then being elected by the CM. In this fijirst period individual nominations to the ACFC were carefully scrutinized by the CoE before their election by the CM.34 There were a number of cases where the second nominee was chosen, others were rejected and referred back to States, while a few Members were elected whom NGOs believed did not demonstrate a clear independence or expertise in minority rights. However, some Members of the ACFC resigned when it was clear that they had been given governmental posts.35 Although the nomination procedure for new Members lacked transparency, it is the author’s view that the large majority of truly independent Members, who meticulously guarded this role,36 ensured that the ACFC enjoyed full independence in the conduct of its work and the formulation of its Opinions. There was a range of academic disciplines represented among the experts, all with sound knowledge and experience of human and minority rights. Many were known for their independence, though a handful appeared to be too close to governments. Two people declared themselves from minority communities and a few had worked with civil society in this fijield, while over the years there was a good gender balance. There was a wide range of renowned scholars of international law, who were essential for the task at hand. However, there remained a need for a balanced Committee,37 particularly as the Framework Convention depends on programme-type provisions, and in the early days there was a weakness in the experience of a majority of the Committee Members in practical programming outside their own country. 3.

Resources

The Framework Convention Secretariat was particularly commended in the ACFC’s three Activity Reports,38 although the CoE had been consistently asked to provide 34

Informally individual Members of the Bureau were asked for their advice by certain ambassadors.

35

See ACFC Meeting Reports, op. cit. note 29.

36

Hofmann, op. cit. note 28.

37

Phillips, op. cit. note 27, 5.

38

Throughout this time Antti Korkeakivi and Frank Steketee performed outstandingly, supporting the Bureau and the ACFC in an exemplary manner with thoughtful high quality work, within a commitment to the overall long term strategy. See the ACFC Activity Reports, op. cit. note 33.

The Beginning

more stafffijing since its third meeting to meet the growing demands. This remained a critical issue. As late as 2002, the President of the ACFC stated unambiguously why additional stafffijing was needed to fulfijil the additional work that had been imposed on it by the number of ratifijications and reports to review. He noted publicly that there had been no additional resources made available, describing this as a most regrettable development.39 This was strong language, but every CoE department defended its own existing work and the Secretary General appeared unwilling to set priorities in the CoE. He was unable to ensure that resources were given to an activity that many States deemed to be of considerable importance to peace and stability in Europe. 4.

Timely Reporting

Despite the complexity of drafting the fijirst State Report for a treaty monitoring body, most States did not take an undue time to submit their Reports. 40 Though there was a legal obligation to provide such Reports on time, the majority of States submitted their Reports within six months of the due date and some within three months. The fijirst set of Opinions were delayed a little to ensure that they could be released at the same time at the eighth meeting of the ACFC to ensure consistency. However primarily due to acute stafff shortages and the insistence that quality should not be sacrifijiced, it took on average 20 months to formulate Opinions. 41 Disappointingly, Comments and Resolutions took on average a further 11 months to be agreed. In a survey of minority-based and other human rights NGOs attending a practical training course on the Convention (sponsored by MRG and the CoE in Budapest in April 2002), over 75% of the participants stated that an Opinion should be published within a year of the State Report being submitted. Similarly, the meeting of Government Offfijices for National Minorities in Vilnius (April 2002) called for speedier responses to their Reports. 42 It was suggested that “the efffijiciency and ef39

Rainer Hofmann, “Review of the Monitoring Process of the [CoE FCNM]”, 1 European Yearbook of Minority Issues (2001/2002), 435-460, at 433.

40

FCNM State Reports available at .

41

The author prepared and presented a paper to the ACFC at its 13th meeting on “an analysis of the timetable of monitoring the implementation of the FCNM”. The paper was based on data that was in the public domain.

42

ACFC, Meeting Report 14th Meeting 13-17 May 2002, ACFC/MR/INF(2002)004, dated 12 July 2002, para. 9, at .

31

32

Chapter One – Alan Phillips

fectiveness of the Convention – encouraging processes of dialogue and ensuring that data is up to date – makes the suggested 12 months a good target”. 43 The paper went on to call for the publication of Opinions by States as soon as they had received them, which the President of the ACFC took up in a diplomatic way in the Activity Report. 44 More publicly he suggested that to reduce the time taken and to increase the transparency of the monitoring process, States should give favourable consideration to an even earlier publication of the Opinions immediately after they had been received by States. He noted that delays may lead to “deep frustration among members of national minorities and members of civil society, who have often contributed considerably to the drafting of Opinions by submitting valuable information, written and orally, and who would wish to use them as early as possible in the context of the internal dialogue”. 45 5.

Transparency

More generally there remained issues of lack of transparency in a variety of areas. The procedure for the nomination of experts was opaque in most countries, the Opinions were initially only circulated to States and rarely translated into local languages until much later, and the discussions in the CM Rapporteur Group (GR-H) and CM were always in camera, without observers from PACE or from minority communities. D.

Sources of Information

1.

Range of Sources

The Rules of Procedure on monitoring stipulate that the Advisory Committee may request additional information from the State Party whose Report is under con-

43

This is described in the paper presented by the author to the ACFC 12th meeting. See ACFC, Meeting Report 12th Meeting 26-30 November 2001, ACFC(2002)1, dated 18 February 2002, at .

44

ACFC, Third Activity Report Covering the Period from 1 November 200 to 31 May 2002, ACFC/INF(2002)001, dated 31 May 2002, at .

45

Hofmann, op. cit. note 28, at 267.

The Beginning

sideration, and that the ACFC may receive information from additional sources. 46 However, the ACFC could only invite information from other sources after notifying the CM of its intention to do so. There was much criticism of these rules as being restrictive and potentially a form of censorship. In 1999, the ACFC requested the CM to allow it to seek information from a wide variety of reliable sources. 47 In fact the request was carefully nuanced so that the CM took note of its intention to do so48 to ensure that it minimized the possibility of an ambassador raising an objection; the ACFC or at least the Bureau, the President and the Secretariat knew it was treading on eggshells and had to move carefully to ensure a consensus. Subsequently, when this was agreed, a comprehensive dossier was put together by the Secretariat on each country for the ACFC and this often included over 100 diffferent documents, with frequently more than 1,000 pages of evidence. The data was targeted and came from many reliable sources, including inter-governmental organizations, treaty monitoring bodies, Ombudsmen, INGOs, national research institutes and local NGOs, including minority organizations. The Advisory Committee did not analyze petitions on individual cases or seek to act as a court judging cases, but did review the outcomes of highlighted court cases that might indicate inadequacies in the law or in the judicial system. Relationships between the ACFC and civil society were enhanced early on when a meeting was held with them on 27 October 1998, which was also attended by some government representatives, and together they agreed to work with the ACFC and with each other. 49 Similarly during the same week the ACFC held a meeting with government offfijicials responsible for drafting the State Reports to clarify the outline that it had drawn up and to answer questions. It set the tone for the dialogue envisaged by the Preamble of the Framework Convention and thereby encouraged information sharing. International NGOs, in particular MRG and IHF, publicized the Framework Convention, provided training on the Convention for participants from minority organizations and encouraged the submission of alternative reports to the ACFC. This enabled minorities to give their own perspective. Many such alternative reports were received and were crucial to the ACFC’s work, and there were many valuable presentations on specifijic Articles and issues covered by the Convention. The Framework Convention Secretariat played a highly constructive role sponsor-

46

Resolution 1999(101), op. cit. note 16.

47

This was consolidated into the Decision of the CM at its 835th meeting on 8 April 2003.

48

Hofmann, op. cit. note 28, at 246.

49

Ibid.

33

34

Chapter One – Alan Phillips

ing and supporting NGO information and training initiatives, both within States and in Strasbourg, which were evaluated positively. 2.

Monitoring Visits to States

The custom and practice gradually developed of State Parties inviting the ACFC to visit. Although this was not referred to in CM Resolution 97(10), via the ACFC’s subtle approach seeking invitations alongside lobbying by NGOs, every State except Spain and Portugal invited the ACFC when a visit has been thought to be valuable. This fijirst began with an approach by the Framework Convention Secretariat to the Finnish government and an approach by MRG to the Hungarian Foreign Ministry and its Foreign Minister. The visit to Helsinki in August 1999 established a very important precedent that was used to encourage other States to offfer invitations. These visits have become central in monitoring the Framework Convention and have transformed the methodology into a process of engagement of government departments and civil society, including national minorities. During the visits a range of meetings were held with many actors, particularly governments and minority organizations. This methodology has been warmly welcomed by all parties and has played a signifijicant part in confijidence building. This was consolidated into the procedures,50 although some States have delayed their invitation. At its meeting in February 2002, the ACFC considered an evaluation paper prepared by the author and concluded that country visits had become one of the most valuable parts of monitoring the implementation of the Framework Convention. The President commented “I am convinced that these visits—which are not restricted to capitals but included also travel to the regions—have signifijicantly increased the quality, accessibility and credibility of our work”.51 Visits have helped to ensure that the Convention and its implementation could become a process that is used and owned locally. The visits, including visits to minority settlements, have not only opened up many new sources of information and understanding, but have led to a much deeper understanding of the situation of national minorities and provided a framework for dialogue on contentious issues. No other human rights treaty monitoring body has enjoyed such discussions and meetings with governments and civil society. 50

ACFC(99)13, op. cit. note 25.

51

Rainer Hofmann, “The Framework Convention at the End of the First Cycle of Monitoring” in CoE (ed.), Filling the Frame. Five years of Monitoring the [FCNM]. Proceedings of the Conference held in Strasbourg, 30-31 October 2003 (CoE Publishing, Strasbourg, 2004), 19-25, at 20.

The Beginning

3.

Relations with NGOs

One of the most important aspects of this Framework Convention has been the way in which it has been used by civil society organizations. International NGOs have played a major role in publicizing and promoting the Convention internationally, and working with local partners, a number of whom have used the Convention to promote minority rights in their countries. Their involvement in training and information dissemination has already been referred to. Governments have often responded to this constructively. Although the procedures did not specify this, most States consulted a range of minority groups before submitting their Report, and this was encouraged informally as a model of good practice. Nevertheless, some minorities were unaware of the Framework Convention. Governments were a key source of information but the President of the ACFC stated that “[e]qually important has been the cooperation and input of NGOs, minority associations and civil society in general, without which the Advisory Committee could not fulfijil its monitoring task efffectively”.52 Additionally, some NGOs played an important role in lobbying for the Framework Convention’s ratifijication, while others lobbied governments to publish Opinions and Comments early on. They supported projects locally to submit alternative NGO reports to the ACFC;53 encouraged specialist NGOs to present evidence on topics to the ACFC, meet the ACFC and helped set the agenda during monitoring visits. Outside the visits they provided extra data identifijied as important by the ACRC, contributed to follow-up meetings to help implement the fijindings and organized local working groups to promote the fijindings in the ACFC Opinions. There have been both individual initiatives and collective approaches by consortia of NGOs in many countries of Europe. Academics have played their part in offfering reviews and criticisms of the Framework Convention. E.

Application and Interpretation

The recommendations of the ECMI conference54 called for the Framework Convention to be regarded as international minimum standards, noting that it would be con52

Ibid.

53

Reports submitted by State Parties and NGOs pursuant to Article 25 Paragraph 1 of the Framework Convention available at .

54

Estébanez and Gál, op. cit. note 8.

35

36

Chapter One – Alan Phillips

trary to their spirit and intent to interpret these obligations and commitments in a restrictive manner. It is not within the scope of this chapter, but others in this book explore the detail of how each Article was approached in each Opinion; these have also been covered by a range of scholarly articles.55 Nevertheless, in principle the ACFC wanted to strengthen standards of protection through constructive interpretations rather than reduce standards. Most ACFC Members wanted to widen the personal scope of application, but all of them recognized the margin of appreciation that each State has. The ACFC attempted to draw up Opinions that reflected the fact that the Framework Convention is a flexible instrument that nevertheless sets legal standards. It did its utmost to ensure that its Opinions were as detailed, objective and accurate as possible. The ACFC did not attempt to be a court, but rather a catalyst for the improved implementation of the Framework Convention.56 It also called for the Advisory Committee to take the work of international human rights treaties into account in its work, alongside the provisions of other UN, OSCE and CoE standards. Important documents were circulated to all the ACFC,57 often referred to by the Secretariat and were footnoted frequently. It was suggested that the Advisory Committee should also take into account standards ensuing from bilateral agreements between the States Parties. These were taken account of but rarely used as the ACFC was monitoring an international instrument that had been ratifijied by most of the states in Europe. 1.

State Reports

The Convention is monitored primarily on the basis of State Reports, which are to be submitted one year after entry into force, and every fijive years thereafter. In the course of its fijirst two meetings the ACFC produced an outline for these Reports. 55

Hofmann, op. cit. note 28, at 237 and Rainer Hofmann, “Review of the Monitoring Process of the [CoE] FCNM in 2 European Yearbook of Minority Issues (2002/3), 401-433.

56

The Third Activity Report (2002) describes the approach of the ACFC. ACFC/INF(2002)001, op. cit. note 44.

57

The documents circulated and cited included: the UNDM (1992), the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (1990), the Lund Recommendations on Political Participation, the Hague Recommendations Regarding the Education Rights of National Minorities (1996) and the Oslo Recommendations Regarding the Linguistic Rights of National Minorities (1998), as well as the recommendations of PACE and the HCNM.

The Beginning

These did take into account the guidelines of other bodies, but it was determined to improve on these and ensure the relevant information was available to reflect this unique convention. It was also essential to ensure that substantial reports were produced, not just a re-editing of reports for CERD inter alia, so that high quality Opinions could be produced that would add substantial value in advancing the rights of minorities. This outline was adopted by the CM on 30 September 1998 and became part of the procedures for implementing the Convention. The Report should be in two parts: the fijirst should contain an introduction on the way the State has sought to implement the Convention and the second should provide details on an Article by Article basis, following the order of the provisions of the Convention with “full information on the measures they have adopted to ensure its implementation”. This information might be presented in fijive categories: narrative, legal, State infrastructure, policy and factual. A seminar was held between relevant government offfijicials and the ACFC to explain the thinking behind the proposed outline and to help build confijidence. In due course the Reports did largely follow the proposed structure but they were very mixed in their breadth and depth.58 Most concentrated on the fijirst two categories—narrative and legal—with some limited reflections on State infrastructure and policy, but there was usually insufffijicient evidence of the factual situation. Where data was provided it was rarely disaggregated by age, gender or location; economic data on employment or access to land was weak, both at the macro and micro level, while there were few qualitative assessments provided to interpret the data that was provided. This was notable in the area of unemployment, where some minorities described high levels of unemployment and the need for the government to address this issue. This indicated that a new approach would be needed to data collection, analysis and policy implications in the next round of monitoring. States were invited to show models of good practice and areas where they might value advice but this offfer was not taken up in the reports. More positively, many States did indicate the measures they had taken to promote awareness among the public and the relevant authorities about the Convention. Although the procedures do not specify this, most States consulted a range of minority groups before submitting their Report (e.g. United Kingdom), and this was encouraged informally as a model of good practice. Many States convened conferences to discuss the Convention (e.g. Croatia) and to engage minorities in the preparation of the State Report (e.g. Germany), often reflecting the views expressed by minori-

58

FCNM State Reports, op. cit. note 40.

37

38

Chapter One – Alan Phillips

ties. This was important and had the prospect of becoming custom and practice in further rounds of reporting. VI.

Committee of Ministers

A.

Responsibilities

The CM was formally charged with monitoring the Framework Convention and could, if it so chose, ignore the fijindings of the ACFC. Over the last four years the Advisory Committee has been careful to develop its work gradually, to consult the CM and to remain within the mandate it inherited or that has been developed. Liaison has taken place with Ambassadors to help identify the best approaches and to consider the experience of other bodies, such as the ECRI. Consequently, the CM had confijidence in the ACFC, which proved important in view of the debate that arose around the fijirst set of Opinions. The CM had not anticipated what it had to do and it took almost six months to decide that States should be given a further four months to provide their Comments on Opinions. While the fijirst four Opinions were being considered, the CM recognized how complex and controversial it would be to reopen substantial debate on the monitoring. There were challenges to the Opinions by a number of States, including Denmark. Consequently, the CM decided to rely much more on any discussions on these Opinions by GR-H. Fortunately that meeting was also serviced for the part of the meeting considering Opinions and State Comments by the Framework Convention Secretariat, who produced a draft Resolution based on the concluding remarks of the Opinion. The ACFC Bureau led by the President introduced Opinions, while Ambassadors presented their State Comment. Both the ACFC and CM appeared happy with this mechanism at this stage. Nevertheless, this mechanism was open to criticism by civil society as it lacked transparency. B.

Differences between ACFC Opinions and CM Resolutions

When the Rules of Procedure were adopted by the CM, there was considerable concern that the ACFC and the CM would take fundamentally diffferent approaches. Five years after these debates, the operative paragraphs in the CM’s Resolutions were compared with the ACFC’s Concluding Remarks. The style of language and the format of the two difffered, with the Resolutions drawing on the conclusions of the Opinions but expressed in modifijied language. Consequently, a direct compari-

The Beginning

son was made more difffijicult and a close examination was needed to see if issues were obscured or excluded. Many of the Resolutions faithfully reflected the key issues included in the Concluding Remarks of the Opinions.59 However some other Resolutions60 had one and sometimes two notable omissions from the Concluding Remarks in the Opinions. These came about through a desire to accommodate representations from the State and a desire to reach a consensus that would lead to implementation by the State that had voted for the Resolution. These changes did not alter the main sentiment of the Concluding Remarks, but represented a small yet disturbing trend. This was mitigated by the CM Resolution making a specifijic reference to the ACFC’s Opinions (see Part IV(A) above). Consequently, the fact that the whole Opinion was published and a constructive reference was made to it in the CM’s Resolutions was most important. Nevertheless, a close watch was needed to ensure that States did not delay Resolutions and did not seek to dilute criticisms. C.

Implementation of the CM Resolutions by States

States that ratify the Framework Convention commit themselves to applying the provisions of the Convention in good faith and in a spirit of understanding and tolerance. Once Opinions, Comments and Resolutions have been adopted by the CM, which includes the reporting State, it is the responsibility of a State to use these to strengthen the implementation of the Convention. In all Resolutions adopted by the CM it is recommended that the States take appropriate accounts of their own Conclusions together with the various Comments in the ACFC’s Opinion. It also invites the government to continue the dialogue with the ACFC and to keep the ACFC regularly informed of measures it has taken in response to the Conclusions and Recommendations. By mid-summer 2002, four States61 had taken their Resolutions seriously and were convening local conferences with the CoE to discuss the Opinion, Comment and Resolution with relevant government ministries and civil society. This presented a unique opportunity for continuing dialogue and for each ministry to begin an action plan to fijind ways of strengthening the implementation of the Convention. This dialogue between States and the ACFC had many advantages. It promoted 59

Notably the first Opinions and Resolutions on Cyprus, Denmark, Finland, Liechtenstein, Malta and San Marino.

60

Contrast the first Opinions and Resolutions on Croatia, Czech Republic, Hungary and Slovakia.

61

Croatia, Finland, Hungary and Romania.

39

40

Chapter One – Alan Phillips

the engagement of minority organizations both with the government and with the ACFC in tackling key issues identifijied in the Opinions in a transparent and participative manner. Furthermore, it should simplify the next round of reporting, as some of the problematic issues will have been dealt with through dialogue, while this innovative procedure may also be of value to other treaty monitoring bodies. There still remained some outstanding issues, including that Opinions, Comments and Resolutions needed to be translated into key languages and widely disseminated. States were obliged to follow up the Resolutions for which the CM had voted, and were in due course held to account on how far these had been implemented during the second round of monitoring. VII.

Conclusions

The fijirst round of monitoring was largely successful. The reporting by States was taken seriously, while NGOs contributed signifijicant additional information and insights, which gave vitality to the process of dialogue. All States requested had invited the ACFC to visit, no obstacles were placed in the way of meetings with minority communities and the ACFC began to visit communities outside the capital. This was crucial for building confijidence among government offfijicials and minority leaders. However it was important not to be complacent. A key objective of the monitoring process is to help all States move from analysis to action in many areas. Legislation, policies and prioritized programmes were often needed to implement the Framework Convention, using the baseline evidence, analysis and interest stimulated during the fijirst cycle of monitoring. In the fijirst four years, the Advisory Committee acted coherently to adopt substantial and constructive Opinions that criticized or commended the conduct of States, while listening carefully to both governments and minorities. The CM has not been the bête noire painted by some early critics; on the contrary, it has developed confijidence and trust in the ACFC, has worked in concert to strengthen the FCNM’s mechanisms and has largely worked as a team to achieve the Convention’s objectives. Some of the perceived weakness of the Convention has often been its strength. More than three-quarters of the CoE’s Member States have ratifijied the Framework Convention, while the flexibility of its language has allowed for practical interpretations by the ACFC and an opportunity to persuade States to continually improve. Already some two years later, examples

The Beginning

were given of positive action following ACFC Opinions,62 while the evaluation in the 2008 Impact Assessment Conference provided many more substantial examples.63 On the substantial issue of the application of the Convention in States, by 2002 it was too early to judge what changes had been brought about. There have been many cases where the protection of minorities improved, but there are many factors in play, including accession into the EU, and consequently isolating the Framework Convention as the primary cause would be premature. There were other cases where minority groups believed that the progressive realization of rights was not happening. Some substantial research was needed on this that will be provided in the other chapters of this book with the benefijit of a longer term perspective. Major difffijiculties remained however, as the CoE allocated inadequate resources for the development of the ACFC’s work, leading to unacceptable delays in the monitoring cycle that were only addressed efffectively in the second cycle of monitoring. Nevertheless many governments in their Comments on Opinions and a signifijicant number of minorities in their dialogue with MRG have stated that they value the work of the ACFC in furthering minority protection. The Opinions were rarely challenged as incorrect, except on minor issues, and the contentious issues were carefully phrased in the Opinions to make them less likely to provoke a very hostile response. The Opinions were consistent and drew on the highest standards, as other chapters in this book will show, while the foundations were laid for important thematic Commentaries that were to come later. The relationship with the CM was much better than hoped due to the skills of the Secretariat and the Bureau, led by the President and supported by civil society. Many of the threats were turned into opportunities for dialogue and innovative approaches. Nevertheless it was difffijicult to see how minority organizations were going to have the resources to continue to promote the Framework Convention in the future. It was clear to the Bureau that unless governments, offfijicials and minorities were motivated to work together practically, in good faith, to protect minorities, the Framework Convention would not be worth the paper it was written on. Conversely, when that motivation existed, it provided an important vehicle for encouraging sustainable improvements over time. After four years the Framework Convention had helped set the normative base in practice in many States for the realization of minority rights and improved inter62

Alan Phillips, “The [FCNM]”, in ECMI (ed.), Mechanisms for the Implementation of Minority

63

FCNM conference, “Enhancing the Impact of the Framework Convention: Past Experi-

Rights (CoE Publishing, Strasbourg, 2004), 109-130, at 121. ence, Present Achievements, and Future Challenges”, 9-10 October 2008, at .

41

42

Chapter One – Alan Phillips

community relations, but its results would only be seen over decades. Rome was not built in a day, but solid foundations were laid in the fijirst four years.

Chapter Two Ensuring Social and Economic Rights of National Minorities through the Work of the Advisory Committee on the Framework Convention Asbjørn Eide

It is a pleasure to contribute to this Festschrift in honour of Rainer Hofmann. It fell on him to chair the Advisory Committee on the Framework Convention for the Protection of National Minorities (hereinafter “Advisory Committee” or ACFC) during its fijirst and difffijicult years, when the fundamental approaches to its work were chosen that gave it the constructive role that it now has. It was during his tenure as Chair that the guidelines for the monitoring process were fijirst determined. He was instrumental in ensuring that there was appropriate attention both to the promotion of diversity and to the realization of socio-economic rights of minorities, which sometimes can be a difffijicult balance. His clear emphasis on this was followed up by subsequent chairs, including myself and Alan Phillips, in cooperation with the very able stafff on minority rights of the Council of Europe (CoE). I.

Introduction

Minorities and persons belonging to them generally have two concerns. One is to be treated as equals to other members of society, being freed from discrimination and marginalization. The other is to have or be given the necessary space to maintain or develop their collective identity. But not all minorities place the same emphasis on those two concerns. For some minorities, the main priority is the search for equality. For others, the quest for a protected space for collective identity is the dominant concern. For purposes of illustration it can be argued that for the Roma in Europe the main concern at present is to obtain equality and bring discrimination to an end, while for the Hungarians living in countries that are neighbours to Hungary Tove H. Malloy and Ugo Caruso (eds.), Essays in Honour of Rainer Hofmann Copyright 2013 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-21441-5 pp. 43-61

44

Chapter Two – Asbjørn Eide

(mainly Slovakia, Romania, Serbia) their main concern is with the preservation and development of their Hungarian cultural identity. When, in 1989/90, the international community and particularly the European states became more concerned with the situation and rights of minorities than they had been in preceding decades since 1945, the main international attention turned to the second of these two concerns - the right of minorities to have a space for their collective identity. Particular focus was on the right to preserve and develop their own culture, including their language and traditions. Until then, the dominant concern in international human rights law had been with the fijirst aspect—the right of every person to be free and equal in dignity and rights—as expressed in the Universal Declaration of Human Rights (UDHR) in Article 1. On the foundation of the principle of equality and non-discrimination of every individual person, an impressive framework had been established since 1948, focussing on the right of everyone to be free from discrimination and requiring the state to promote and ensure equality in fact among all persons. We fijind this guarantee contained in Article 2 UDHR, in Article 2 of the International Covenant on Civil and Political Rights (ICCPR), Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and more directly relevant for this chapter, Articles 1 and 2 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which also covers ethnic discrimination, as well as a wide range of other human rights instruments. The purpose of the introduction in the 1990s of specifijic minority rights was not to challenge the fundamental right of everyone to equality and non-discrimination, but to supplement it with rights that could provide additional possibilities to maintain and develop the collective identity of minority groups. The leading provision for this purpose in the Framework Convention for the Protection of National Minorities (hereinafter “Framework Convention” or FCNM) is its Article 5.1, whereby the State Parties “undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage”. This is further elaborated in several subsequent articles of the FCNM. This was intended to be a move towards better recognition of the ethnic, religious or linguistic diversity in national society by providing more space for and acceptance of multiculturalism. But the recognition of cultural diversity within a national society was coupled with the need to maintain, in every society, a common domain that was equally accessible to all under equal conditions. That common domain included the right of everyone to: access to income-generating activity, whether through formal work or through sufffijicient and satisfactory self-employment, equal rights without discrimination in

Ensuring Social and Economic Rights of National Minorities

working relations, social security, health services and satisfactory social conditions for health, adequate housing, food, water and sanitation and quality education. The realization of socio-economic rights generally requires extensive integration of and by all members of society, including persons belonging to minorities, into the common domain in society—the area that must be open to all on an equal basis for contributing, participating in and sharing of the benefijits of social and material benefijits in the national society as a whole. This must be done, however, in ways that do not constitute enforced assimilation. The dual challenge for the Advisory Committee in this respect has therefore been to promote conditions of pluralism, diversity and multiculturalism for minorities, while ensuring their equal enjoyment of socio-economic rights. It should be kept in mind that situations and priorities change over time. Some ethnic groups that in the past had no particular problems— be it in regard to their cultural identity or in regard to their socio-economic rights— may sometimes suddenly fijind themselves in a vulnerable position due to dramatic political, territorial or economic changes. This was particularly so in the 1990s when a twofold upheaval dramatically afffected many countries of Central and Eastern Europe. One dimension of that upheaval was the dissolution of three federations, namely the Soviet Union, Yugoslavia and Czechoslovakia.1 The other dimension was the transition from a planned economy to a market economy. Both of these affected strongly the situation of diffferent ethnic and cultural groups, even creating new national minorities. It is not the purpose of this chapter to discuss all of the consequences for minority rights resulting from this twofold upheaval, but it should be kept in mind in reviewing the assessments made by the Advisory Committee of the implementation by States of their obligations under the FCNM. Obviously these upheavals caused great challenges to the management of conflicting interests and values by the afffected States during the transitional periods and beyond. This also raises questions about the role played by international monitoring of human rights and minority rights, such as that performed by FCNM, in afffecting and hopefully stabilizing the processes of change. This is not to say that the FCNM did not play an important role also in regard to countries that were less afffected by the upheavals in Central and Eastern Europe. The adoption of the FCNM had a Europe-wide impact that increased the attention to and acceptance of minority rights almost everywhere. This is confijirmed by the fact that nearly all European countries—West and East—have become parties to the FCNM and have accepted its monitoring role. It can be argued that it reinforced a process towards greater acceptance of multiculturalism that had begun already in the 1970s. In the last few years, however, it 1

See the analysis offered by Gáspár Bíró in this volume.

45

46

Chapter Two – Asbjørn Eide

is possible to discern a trend slowing down the process of multiculturalism and a renewed emphasis on integration. In its new version, integration is thought of in a diffferent way than the policies of assimilation that dominated national policies in many European countries until the 1970s. This point will be further discussed below. It is necessary to keep in mind that there can be processes of ethnic mobilization during some stages when the group is under pressure, followed by stages of ethnic demobilization when the pressure has softened or come to an end. It is generally accepted that most people have several or multiple identities; the ethnic identity of a person may be important for her or him in one period and unimportant in other periods. We also often see that some persons act as ethnic mobilizers for reasons that are particular to them (such as factors related to location or to level and quality of education), while others that objectively can be said to “belong” to that group are indiffferent or even hostile to mobilization on ethnic grounds, partly because they have a much wider range of opportunities within the majority society. Minority politics, like all other politics, are therefore often fijilled with tensions and disagreements, and the relations between minorities and the majority are also subject to disagreements at both ends. The emphasis on ethnic identity has its ebbs and flows depending on a set of multiple factors. There is an assumption that societies that are able to ensure equality both in participation in the creation of wealth and in the sharing of the benefijits thereof will have greater tolerance of diversity and less conflicting assertions of collective identities between the diffferent groups. But this is likely to be challenged when there are large-scale new arrivals of persons who have not yet joined the social contract. Special tension is likely to arise when these new arrivers claim the benefijits of national development without being contributors to it. This chapter examines the effforts made by the Advisory Committee to ensure that those social and economic rights can also be enjoyed by persons belonging to minorities. The emphasis will therefore mostly be on those groups that are particularly vulnerable to discrimination, unequal treatment and/or unequal outcomes. The sources for this examination are the Opinions adopted by the Advisory Committee during the diffferent cycles of reporting,2 and its Thematic Commentary on the efffective participation of persons belonging to national minorities in cultural, social and economic life and in public afffairs, adopted on 27 February 2008.3 2

These Opinions can be found at: .

3

ACFC, Commentary on the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs, ACFC/31DOC(2008)001,

Ensuring Social and Economic Rights of National Minorities

II.

Relevant International Law

It is through the application of Articles 4 and 15 that the ACFC has most directly sought to ensure the enjoyment by minorities of socio-economic rights. Article 4 contains the general principles of equality and non-discrimination; Article 15 deals with the right to efffective participation, including in social, economic and cultural life. Other provisions of the FCNM have also to be taken into account in the interpretation and application of those two Articles. Furthermore, since the protection of national minorities and of the rights and freedoms of persons belonging to those minorities form an integral part of the international protection of human rights (Article 1 FCNM), general human rights law is also relevant to the work of the ACFC, including ICERD and the ICESCR, which contain the most authoritative listing of socioeconomic rights. All of these provisions derive from the most fundamental principle of human rights, that everyone is born free and equal in dignity and rights (Article 1 UDHR). Article 4.1 FCNM contains the general principle of non-discrimination. State Parties are required to guarantee to all persons belonging to minorities the right of equality before the law and equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited. It is not enough for the State and all its agents, in law and in practice, to abstain from discrimination, but States are also required to prohibit discriminatory behaviour by private parties. Article 4.2 requires an active role for the State. The focus is on the duty to secure for persons belonging to minorities de facto equality in all areas of economic, social and cultural life. This implies that State Parties to the FCNM must endeavour to ensure that persons belonging to all minorities can enjoy the right to work, the right to property, the right to social security, the right to protection of the family, including the rights of the child to an adequate standard of living, to social security, to education, and to the common cultural rights, as well as those cultural rights specifijic to the minority concerned. When necessary, the State has under Article 4.2 to adopt adequate or special measures to achieve full and efffective equality. Article 4.3 makes it clear that measures adopted for that purpose are not regarded as contravening the principles of equality and non-discrimination. This may give rise to controversies and has often so done. It is therefore useful to refer to Articles 1(4) and 2(2) ICERD, which deal with special measures. The UN Committee on Elimination of Racial Discrimination

adopted 27 February 2008. Available at: .

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(CERD) has addressed this issue in its General Recommendation No. 32, 4 based on the Committee’s extensive practice regarding special measures. As stated in Paragraph 11 of that General Recommendation, “the concept of special measures is based on the principle that laws, policies and practices adopted and implemented in order to fulfijill obligations under the Convention require supplementing, when circumstances warrant, by the adoption of temporary special measures designed to secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms”. The Committee established to monitor compliance of the convention, CERD, lists in its General Recommendation 32, Paragraphs 6, 17 and 18, the requirements that have to be fulfijilled in order that the special measures shall not be deemed to constitute discrimination. The measures must be “appropriate to the situation to be remedied, be legitimate, necessary in a democratic society, respect the principles of fairness and proportionality, and be temporary”. CERD further states in its general recommendations that appraisals of the need for special measures should be carried out on the basis of accurate data on the socio-economic and cultural status and conditions of the various groups in the population and on their participation in the social and economic development of the country. The data should be disaggregated by race, colour, descent and ethnic or national origin and they should incorporate a gender perspective, distinguishing between the situation of men versus women and girls versus boys within the diffferent population groups. Under Article 15 FCNM, State Parties are required to create the conditions necessary for the efffective participation of persons belonging to national minorities in cultural, social and economic life. It implies that they shall be fully integrated in the social contract of the society as a whole, with the benefijits and the obligations arising from it. But, as provided in Article 5.2 FCNM, notwithstanding the general integration policy pursued by State Parties—a policy that indeed is necessary for efffective equality to be ensured—the State 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”. This requires a clarifijication of the distinction between integration and assimilation. In its simplest terms, assimilation consists of processes whereby persons belonging to a minority—or to a non-dominant group—shed or give up all their special features and become in all important respects similar to the dominant group. It is a one—directional process—the minority or non-dominant group gives up its special features while the dominant group stays as it was before. Integration, on the other hand, is a more two-sided or multi-sided process, whereby all sides join to build a joint, more 4

Adopted during the 75th session of CERD, August 2009.

Ensuring Social and Economic Rights of National Minorities

diverse but still cohesive society to which they all contribute and from which they all benefijit, while maintaining sufffijicient space for the separate religions, languages and other identity markers of the diffferent groups both in majority and minority position, and recognizing the right of others to do the same. III.

On Statistics, Indicators and Registration

In order for State Parties to promote, in all areas of economic, social, political and cultural life, full and efffective equality between persons belonging to a national minority and those belonging to the majority, the ACFC has urged them to regularly collect data and gather up-to-date information on the socio-economic and educational situation of persons belonging to national minorities in order to compare the latter with the situation of the majority population. The Advisory Committee has pointed out that the availability of reliable data, disaggregated by age, sex and geographical distribution, is an important condition for the development of well-targeted and sustainable measures, and necessary for the formulation of efffective policies and measures to tackle discrimination in areas such as access to employment and housing.5 In practice, however, adequately disaggregated statistical information is very often not available. As a consequence, there are sometimes wide discrepancies between the fijigures given by the government and the minorities themselves. In its fijirst Opinion on Romania, the Advisory Committee expressed its concern that such wide discrepancies in fijigures can seriously hamper the ability of the State to target, implement and monitor measures to ensure the full and efffective equality of persons belonging to national minorities. It therefore urged the government to identify ways and means of obtaining reliable statistical data, arguing that without such data being available, it is very difffijicult for the Romanian authorities to operate effectively and for the international monitoring bodies to ascertain whether Romania meets its obligations flowing from the Framework Convention.6 The reasons behind the lack of adequate data are multiple, some political, others due to practical difffijiculties. Some States may not have sufffijicient interest in collecting data that would reveal extensive and systemic inequality and therefore prefer not to use ethnic criteria in their collection of data. But resistance to censuses that use ethnic criteria comes also from some of the minorities themselves, due in 5

ACFC, Commentary on Effective Participation, op. cit. note 3, para. 30.

6

ACFC, Opinion on Romania, Adopted on 6 April 2001, ACFC/OP/I(2002)001, para. 26, at .

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part to tragic experience of past misuse for racist purposes of such calculations. The counting for statistical reasons of the ethnicity or religious adherence must in any case be voluntary in line with Article 3 FCNM, taking into account that many individuals or families that objectively belong to the minority do not want to be treated or seen as such and therefore make use of their right to refuse to be counted among the minority. Many do not want their ethnic identity to be known. The collection of data must therefore be made in accordance with international standards of personal data protection ensuring the necessary anonymity. In light of the difffijiculties in using ethnic criteria in the collection of general statistics, it may be necessary to use other methods to obtain adequate data necessary to investigate the economic and social situation of particular minorities, and to adopt adequate polices to remedy inequalities that exist. The ACFC has therefore referred to the possibility of using existing or potential surveys, including household and employment surveys. Where a given minority lives compactly together in a particular region or locality, a survey of the economic and social situation in that region or locality could provide the information necessary to take appropriate action. IV.

Preventing Discrimination: The Need for Legislation and Availability of Remedies

Notwithstanding the difffijiculties in obtaining adequate socio-economic data, there are extensive indicators showing beyond doubt that some minorities proportionally fall considerably behind the majority and other minorities in regard to the socioeconomic rights. The Advisory Committee has frequently observed that some national minorities have proportionally higher unemployment rates, lower employment rates, and a generally lower participation in the labour market than the majority population. They can be faced with direct and indirect discrimination, inequalities in career development and often with structural obstacles (e.g. a ceiling to the level of their promotion within an organization).7 According to Article 1 ICERD, the term “racial discrimination” includes any distinction, exclusion, restriction or preference based on national or ethnic origin that has the purpose or efffect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other fijield of public life. Since ICERD covers also distinctions made on ethnic grounds, it is relevant for the interpretation of the FCNM. It should be noted that discrimination exists not only when the distinctions 7

ACFC, Commentary on Effective Participation, op. cit. note 3, para. 32.

Ensuring Social and Economic Rights of National Minorities

were intended to nullify or impair the enjoyment of human rights on an equal basis, but also when it has that efffect even if not intended. Under Article 2 ICERD, read in conjunction with Article 4.1 FCNM, State Parties shall take efffective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations that have the efffect of creating or perpetuating racial and ethnic discrimination wherever it exists. They shall further prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial or ethnic discrimination by any persons, group or organization. The ACFC has repeatedly insisted on the need for a comprehensive legislation prohibiting discrimination on grounds directly or indirectly related to belonging to a national minority. It has also insisted that remedies must be available for those claiming to be discriminated against, and that the availability of such remedies must be made known to the afffected minorities. A particularly serious issue concerns the role played by the police. Article 4.1 requires the State Parties to guarantee to persons belonging to minorities equal protection by the law, which places a heavy duty on the police to demonstrate neutrality and equal protection. Under Article 5(b) ICERD, the State shall guarantee the right of everyone, including persons belonging to minorities, the right to security of person and protection by the State against violence or bodily harm, whether inflicted by government offfijicials or by any individual group or institution. All members of society, including marginalized minority groups, should be able to see the police as their common protector. This is essential for the enjoyment of all categories of human rights, but it is particularly important for the protection of social and economic rights. In situations where there is widespread social discrimination against some minorities, the police is required to protect that group against harassments and threats by other groups, including harassment by members of the majority. If the minorities are not protected, this can seriously undermine the possibility of persons belonging to that minority to participate efffectively in the economic and social life of the society. The ACFC has devoted considerable attention to information about police neglect of minority protection and in many cases found that outright abuse has been committed by the police against some minorities, in particular the Roma and the Travellers. There are indications that in situations of widespread social discrimination caused by stereotyping and stigmatization, some members of the police themselves share the same negative images of the stigmatized group, and are therefore unwilling to provide efffective protection to the threatened group. Under Article 4.1, State Parties shall prohibit any discrimination based on belonging to a national minority. With regard to economic and social rights, reference can be made also to Article 5(e) ICERD. Under that provision, State Parties undertake

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to prohibit discrimination in the following areas: (i) the rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration; (ii) the right to form and join trade unions; (iii) the right to housing; (iv) the right to public health, medical care, social security and social services; (v) the right to education and training; (vi) the right to equal participation in cultural activities; (f) the right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres and parks. The ACFC has pointed out that comprehensive legislation prohibiting discrimination on grounds of belonging to a national minority, covering the fijields of employment, housing, health care and social protection by public and private actors, is a precondition for any policy aimed at promoting the participation of persons belonging to national minorities in various spheres of socioeconomic life.8 It has therefore repeatedly insisted that anti-discrimination legislation should be enacted or, as appropriate, further developed and fully implemented with a view to eliminating discrimination against persons belonging to national minorities, especially in the labour market, in the fijield of housing and by health care providers. This also implies that adequate measures should be taken to raise awareness within wider society and provide training for all stakeholders, including law enforcement bodies.9 V.

Direct and Indirect Discrimination: Blockages Against Effective Participation

While the ACFC has found several cases of direct and open discrimination by public agents related to persons belonging to minorities, much more common is a wide range of measures or activities that constitute indirect discrimination, or where direct discrimination in regard to one set of rights causes indirect discrimination in regard to another right. Direct discrimination occurs when a person belonging to a minority on that ground is treated less favourably than a person belonging to another minority or to the majority in a similar situation, e.g. when a person is denied employment based on her or his ethnicity. Indirect discrimination refers to laws, policies or practices which may appear neutral or even justifijied at face value, but have a disproportionate impact on the exercise of some human rights for persons belonging to particular minorities. Birth registration certifijicates are often used as a condition for being provided health services or social security payments. 8

ACFC, Commentary on Effective Participation, op. cit. note 3, para. 33.

9

ACFC, Commentary on Effective Participation, op. cit. note 3, para. 34.

Ensuring Social and Economic Rights of National Minorities

Where persons belonging to a minority do not have birth certifijicates, this condition amounts to indirect discrimination, particularly when no meaningful effforts are made to rectify that gap. The origin of the discrimination is sometimes found in the unwillingness or incapacity of public authorities to ensure that every newborn child gets a birth certifijicate or to ensure that such certifijicates can be found or retrieved by public authorities when the need arises. The ACFC has sometimes found that that maternity units in some hospitals refuse to issue birth certifijicates to mothers—most of them Roma—who are unable to pay the bill for their childbirth (i.e. First Opinion on Romania 10). The incapacity of the public authorities may sometimes be due to lack of cooperation by particular persons within the minority. This would demonstrate the need for stronger proactive effforts by these authorities to ensure that every new-born child is indeed registered and given a certifijicate. Unless genuine effforts are taken in that direction, the requirement of birth certifijicates as a condition for health services amounts to indirect discrimination. Persons among the Roma community often fijind it impossible to get employment because they do not have the necessary education or training required for the jobs that are available in the market. While the employer cannot be criticized for demanding the necessary professional capacity of those to be employed, the original cause of the lack of adequate educational achievements may be because they have been placed in special, low-quality schools that have not given them the qualifijications they need later in life. Such placement constitutes direct discrimination, the denial of a job due to insufffijicient education then adds up to indirect discrimination. Language barriers can, in several ways, hinder the enjoyment of many socioeconomic rights for many minorities. One problem arises when unnecessary language requirements are set for public or private employment, in efffect excluding persons from minorities that have insufffijicient knowledge of the majority language.11 Another source of indirect discrimination that arises on the grounds of language is when information about public services and goods are available only in the majority language. The ACFC has therefore repeatedly recommended that such information should be available, as much as possible, in languages spoken by minorities. In some State Parties, residency requirements are imposed by some employers or by the State as a prerequisite for recruitment, or for registering and running private business. These practices can afffect in a disproportionate manner persons 10

ACFC, Opinion on Romania, op. cit. note 6, para. 28.

11

This aspect was extensively discussed in the first and until now only Opinion on Latvia. ACFC, Opinion on Latvia, Adopted 9 October 2008, ACFC/OP/I(2008)002, para. 163 and 164.

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belonging to certain national minorities. They can face specifijic difffijiculties in registering their residency, due to administrative or other obstacles. Residency requirement problems can also hinder their access to basic social rights, such as healthcare, unemployment services and pension entitlements. VI.

Disadvantaged or Marginalized Minorities: Roma, Travellers and Indigenous Peoples

Some minorities stand out as being particularly vulnerable or marginalized in regard to socio-economic rights. Three such groups have been encountered in the practice of the Advisory Committee: the Roma, the Travellers and the indigenous peoples of Europe. The State Reports have shown that the Roma face more signifijicant difffijiculties than others in the areas of employment, education and training, housing, health care and social protection. A substantial part of the problem arises from the legacy of discrimination to which the Roma has been subjected over several centuries, and which still to some extent continues. In the case of Romania, the ACFC found widespread open social and economic discrimination. Newspapers publish advertisements for jobs or housing which expressly exclude Roma, and neither editors nor advertisers incur any sanctions. Due to this and other problematic practices, the Advisory Committee considered in its fijirst Opinion on Romania that the government had not done everything it could to protect persons exposed to intimidation, discrimination, hostility or violence because of their ethnic, cultural, linguistic or religious identity, and concluded that the situation was not compatible with Article 6 Paragraph 2 of the Framework Convention. The difffijiculties the Roma have faced in the various sectors of life as a result of stigmatization, exclusion and exploitation have been interconnected and mutually reinforcing and they have therefore led to a spiral of exclusion from socioeconomic participation. Such exclusion leads also to a degree of self-withdrawal, due in part to reality on the ground that many among them have a low level of self-esteem and a lack of expectations in areas of education and training. As a result, they are often caught in a particular kind of poverty culture, and it takes much patience, resources and commitment for those who are dedicated to breaking out of that culture. In many countries, the main problem for the Roma is the lack of quality education. In some countries they are placed in special schools or classes for disadvantaged pupils, and the quality of their education is low. They also often face stigmatization and feel rejected by pupils from the majority society. To some extent the teachers are also afffected by the general stigmatization in society of the Roma. Problems in education are compounded by the conditions that many of the children experience

Ensuring Social and Economic Rights of National Minorities

at home. The standard of living of many Roma in several countries is often unacceptable, lacking running water, electricity and sanitary facilities. Evictions are frequent, and the resettlement of the Roma in places lacking the necessary standards both regarding the housing itself, and the transportation facilities, access to schools, health centres and employment opportunities are issues of particular concern. By having a low quality primary education, their prospects in secondary education are also weak, and the majority of them drop out before completing secondary education. Very few make it to tertiary (university-level) education. Among those few who manage to complete secondary and tertiary education, some seek to hide their origins in order to avoid discrimination among majority society. The Roma are often seriously disadvantaged in relation to health care. Some public hospitals, e.g. in Romania, have been found to refuse treatment for members of the Roma community on the grounds that they can neither affford to pay for their medical treatment nor prove that they are covered by medical insurance. Roma women are particularly vulnerable, due to a combination of external and internal restraints. The ACFC has been instrumental in raising awareness about the problems faced by the Roma throughout Europe. The European Commissioner on Human Rights has also made major effforts to increase this awareness, as well as the EU and the OSCE. The World Bank and UN Development Programme (UNDP) have also become involved. A broad coalition of actors who seek to promote measures to improve the situation of the Roma is emerging, but so far the resources have been too limited and have rarely reached the intended benefijiciaries. The Travellers, a group which are found particularly in Ireland and the United Kingdom, but also in some other countries, present a somewhat diffferent picture. Their travelling is combined with the pursuit of traditional activities and trades that are difffijicult to maintain in the currently regulated market conditions. In its Thematic Commentary on efffective participation, the ACFC has pointed out that persons belonging to national minorities that have a nomadic lifestyle face particular obstacles to participation in socio-economic life when residency-related requirements are not adapted to their lifestyle. But adaptation is also required in regard to education, health services and several other areas. The ACFC has therefore called on States to remove undue obstacles and excessive regulation hindering their practice. Ireland is the country with the greatest number of Travellers. Judging from the fijirst two Opinions adopted by the ACFC regarding Ireland, the interaction between the ACFC and the government of Ireland has been particularly constructive (the third Opinion is not available, and it is therefore not known whether the fijinancial crisis that Ireland experienced from 2008 has reversed the process). In its second Opinion, adopted in 2006, the ACFC noted that Ireland has taken a number of steps to im-

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prove the implementation of the Framework Convention following the adoption of the fijirst Opinion of the Advisory Committee in May 2003 and the Committee of Ministers’ (CM) Resolution in May 2004. It has espoused an inclusive position regarding the scope of application of the Framework Convention, and the authorities are actively seeking solutions to address new challenges resulting from the expanding diversity of the country. Ireland has strengthened its anti-discrimination legislation, taken valuable steps to tackle racism and intolerance and commissioned a number of studies to obtain better understanding of ways to address problems faced by the Travellers, ranging from accommodation to health issues. The committee monitoring the implementation of the recommendations of the Task Force on the Travelling Community has carried out important work, with signifijicant Traveller participation, at least until 2005. The authorities have planned new data collection activities, which are likely to facilitate effforts to identify and address Travellers’ concerns. Several problems nevertheless remain to be solved. Social discrimination against Travellers remains a problem, and the implementation of the valuable Traveller accommodation plan adopted by the government has been insufffijicient in a number of localities. Average school attendance and achievement remains low, and negative societal attitudes towards Travellers are still felt in some schools. The ACFC has therefore recommended to the Irish government to take decisive measures to ensure the implementation of Traveller accommodation plans throughout the country. This includes a request to rapidly launch the Traveller education strategy along with an implementation plan and to follow it up decisively, to pursue ongoing effforts to accommodate growing diversity in Irish schools, including in terms of demand for non-denominational or multi-denominational schools, and to take further steps aimed to facilitate self-employment and other economic activities by the Travellers. VII.

Indigenous Peoples and their Access to and Control over their Land

In international human rights law, there is a growing tendency to distinguish between the rights of minorities and the rights of indigenous peoples. The International Labour Organization (ILO) adopted in 1989 its Convention concerning Indigenous and Tribal Peoples in Independent Countries, which has been ratifijied by Denmark (regarding Greenland) and Norway (regarding the Saami). Indigenous peoples are found also in Sweden, Finland and the Russian Federation. In the absence of the ratifijication by these three States of ILO Convention 169, the FCNM is applicable to their indigenous peoples and are covered in the State Reports of these three coun-

Ensuring Social and Economic Rights of National Minorities

tries. The dominant issue for indigenous people is their control over the land, which is essential to their economy and to the maintenance of their culture. Their rights to land are under pressure in all the three countries. This has less serious consequences in Finland and Sweden for their enjoyment of their socio-economic rights, because the Saami are covered by the fairly comprehensive welfare system of these Nordic countries. In the Russian Federation, however, the situation is more difffijicult. Their rights to land and associated rights on fijishing and hunting are under growing threat due to the commercial exploitation of these resources. Moreover, the welfare system is less developed than in the Nordic countries, and has insufffijicient coverage in the remote areas where the indigenous people live. The ACFC has received reports of persistently alarming health indicators for indigenous communities. While the general situation appears to have improved since the 2002 census, which revealed that life expectancy for indigenous persons was 15 years below the Russian average, recent studies further point to a direct link between health status and the deteriorating ecological situation in some regions. There is a growing awareness within the government of the Russian Federation that more efffective action is needed, but the means used so far have not been sufffijiciently efffective and some of the measures appear to create dependencies that are difffijicult for the indigenous communities to overcome. The Advisory Committee has argued that there is an urgent need for positive measures to promote access of persons belonging to indigenous peoples to the labour market, including by removing all obstacles to their engagement in the broader economic sphere.12 VIII.

Special Measures to Overcome Indirect Discrimination and Blockages

When necessary, the State has to adopt adequate or special measures to achieve full and efffective equality. Article 4.3 FCNM makes it clear that measures adopted for that purpose shall not be regarded as contravening the principles of equality and non-discrimination. Nevertheless, this may give rise to controversies and has often so done. It is therefore useful to refer to the interpretation given to Articles 1(4) and 2(2) ICERD, which also deal with special measures. CERD has addressed this issue in its General Recommendation 32,13 based on an extensive practice regarding special measures. As stated in its Paragraph 11, “the concept of special measures is based on 12

ACFC, Third Opinion on the Russian Federation Adopted on 24 November 2011, ACFC/

13

Adopted during the 75th session of CERD, August 2009.

OP/III(2011)010, dated 25 July 2012, paras. 222-223.

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the principle that laws, policies and practices adopted and implemented in order to fulfijill obligations under the Convention require supplementing, when circumstances warrant, by the adoption of temporary special measures designed to secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms.” The conditions for the adoption and implementation of special measures, according to General Recommendation 32, Paragraphs 16-18, are that they be “appropriate to the situation to be remedied, be legitimate, necessary in a democratic society, respect the principles of fairness and proportionality, and be temporary. The measures should be designed and implemented on the basis of need and grounded in a realistic appraisal of the current situation of the individuals and communities concerned. Appraisals of the need for special measures should be carried out on the basis of accurate data, disaggregated by race, colour, descent and ethnic or national origin and incorporating a gender perspective, on the socio-economic, cultural status and conditions of the various groups in the population and their participation in the social and economic development of the country. State Parties should ensure that special measures are designed and implemented on the basis of prior consultation with afffected communities and the active participation of such communities.” The ACFC has pointed out that in situations where language profijiciency requirements are a legitimate condition for access to certain jobs, notably in the public service, language training courses should be made available to prevent discrimination of persons belonging to national minorities. This is particularly important when the State language was changed due to the dissolution of a federation, as it did in the Baltic countries upon restoration of independence after half a century of incorporation in the Soviet Union, during which a large number of Russian-speakers settled there, some of whom had lived there in three generations when the Baltic states restored their independence and made their traditional language (Estonian, Latvian, Lithuanian) the State language. IX.

Capacity of Governments and Public Service to Secure the Socioeconomic Rights of the Minorities

Implementation by the State Parties of their obligations under the FCNM necessarily involves a wide range of institutions, both at the national, regional and municipal level. It involves educational, social and health institutions of various kinds and also housing services, public transport and sport facilities. In its Commentary on the effective participation of minorities in economic and social life, the ACFC has pointed out that this is sometimes hampered by administrative obstacles and a lack of sensitivity by administrations and public services to the specifijic needs and difffijiculties

Ensuring Social and Economic Rights of National Minorities

encountered by persons belonging to those minorities. To overcome these obstacles, the State Parties should better prepare the stafff of public services and welfare institutions to provide adequate responses to the need of persons belonging to national minorities. Public services and welfare institutions should be made easily accessible and available to minorities, and State Parties should also promote the recruitment, promotion and retention of persons belonging to national minorities in administration and public services at both the national and local level.14 X.

The Impact and Importance of International Monitoring for the Realization of Socio-economic Rights of Minorities

The implementation by State Parties of their obligations under the FCNM is not only afffected by the problems within the administration and public services, as discussed in the previous section. Above all, it is afffected by and dependent on the political will of the government, and on the resources at the disposal of the government. National governments are, understandably, influenced by the dominant political pressures and articulations within their own country, including populist movements which sometimes have hostile attitudes towards some minorities. It is therefore of particular importance that an international monitoring mechanism exists that requires States to respect and implement standards that are challenged by parts of the political forces in countries where minority tensions exist. This is of particular importance for social and economic rights, which otherwise would run the risk of being neglected or minimalized due to internal opposition to their implementation. At the same time, we have to recognize that there are limits to how far the international community, represented by the ACFC and the CM, can persuade the political forces within the countries facing such tension. The provisions of the FCNM, including Articles 4 and 15, are phrased in very general terms, leaving a wide scope for discretion in the interpretation of these provisions. This being so, the ACFC is seeking to articulate, through its interpretation of the relevant articles, the requirements to State Parties that reasonably can be argued to meet the aims and principles of the FCNM. The FCNM can only recommend; it has no power to adopt binding Decisions. In its recommendations it has to take into account what can realistically be expected from the State Party concerned, but it must also take into account the justifijied expectations of the FCNM among national minorities. One role of international monitoring bodies is that they can strengthen the relative position of marginalized groups within the political system of the State 14

ACFC, Commentary on Effective Participation, op. cit. note 3, paras. 37-41.

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Parties. By drawing on the recommendations made by the ACFC, particularly those that have been endorsed by the CM, those minorities can obtain an additional leverage in their effforts to influence national decision-makers. It can also help those, within the government and the administration, who genuinely want to help the marginalized minority, but who traditionally face obstacles of a political, administrative or material nature. XI.

Conclusions

Through its monitoring process and its interaction both with State Parties and with the minorities, the ACFC has been able to address the multi-dimensional problems and made consistent effforts to promote attention to the economic and social rights of national minorities. Many of the problems faced were the result of the twofold upheaval in Central and Eastern Europe, partly as a result of the territorial/political reorganization (federations that were dissolved) and partly through the transition from a planned economy to a market economy. Through the awareness-creation and recommendations by the ACFC and through the effforts of the OSCE High Commissioner on National Minorities (HCNM) and others, it was possible to identify with considerable precision the nature of the problems caused by these transitions, and through the implementation of at least some of the recommendations made by the ACFC, the violations or neglect of these rights have become less severe. In recent years another upheaval has been caused by the fijinancial crisis that started in 2008. The full consequences of that crisis are not yet well documented in the monitoring process because of the time lag and restrictions in the publication of the Opinions. For the Roma, however, their situation in a number of countries has become even more severe. Increased economic difffijiculties have had negative consequences for all, but have also resulted in political turmoil that brings back memories of the 1930s. Populist movements have emerged or become stronger. Some of them have racist, anti-Semitic and anti-Islamic overtones in their behaviour and agendas. Some target specifijically the Roma in their hate speech and action. The ability of the police to provide equal protection to all, including the Roma, has been put in doubt; some among the police appear to share prejudices similar to those of the populist movements. There is a need to redouble the effforts to promote their integration into the settled society, not by any form of coercion but by creating the conditions under which settlement becomes feasible. This would depend on access to work or self-employment, on equal protection by the law in all respects, on protection of their habitat, and on access to quality housing and quality education. It is not easily done, partly because the Roma have developed among themselves a special poverty

Ensuring Social and Economic Rights of National Minorities

culture from which they can break out only with substantial effforts. It is therefore essential that State Parties and the European community through its institutions— the CoE, EU, OSCE and others—follow up on the repeated call by the ACFC for longrange integration plans and for the allocation of sufffijicient and sustainable their effective implementation. With regard to the indigenous populations, there is a continuous tension between their interest in preserving and consolidating the land and natural resources necessary for them to maintain their culture, and the policies of growth pursued by most countries which seek to get access to all natural resources in order to convert them to income and wealth. The ratifijication by some countries of ILO Convention 169 has helped to reduce the pressure by drawing fijirm borderlines for the penetration of the dominant economic forces into the land and resources of the indigenous people. The adoption in 2007 by the UN General Assembly of the Universal Declaration of the Rights of Indigenous Peoples has also been of help in this regard. The FCNM does not explicitly deal with land rights, but the ACFC has been adamant in addressing land rights both when dealing with conditions for cultural preservation and development (FCNM Article 5) and conditions for economic and social equality (FCNM Article 4).

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Chapter Three Advancing the Mandate in Post-Communist Countries Gáspár Bíró

I.

Introduction

The following lines contain some of my recollections accompanied by comments, necessarily loaded with a dose of subjectivity, on the years spent in the various Council of Europe (CoE) bodies dealing with national minority issues, with emphasis on my participation in the Advisory Committee on the Framework Convention for the Protection of National Minorities (hereinafter “Advisory Committee” or ACFC) works between 1998-2004 and 2008-2012. I will mention some of the inherent pitfalls of the Framework Convention for the Protection of National Minorities (hereinafter “Framework Convention” or FCNM), characteristic to, but not necessarily the same as, all of international human rights covenants, and the ways the ACFC has dealt with them in the past 15 years. Obviously, for someone like me, coming from the region indicated in the title, the perspective on difffijiculties is “eastern” and may not entirely coincide with other perceptions. I also will address both the benefijicial efffects and the disadvantages arising from the general and sometimes elusive nature of the provisions of the FCNM, including those on the ACFC. Since I plan an essay and not a methodical and systematic study, I may allow myself to go back and forth in time for trying to sharpen the contrast between what has been the initial concept and how the practice evolved far beyond it in the past 15 to almost 20 years. Initiatives at the interstate level of regulating through legally binding norms, various aspects of which belong to the general domain of international human rights, were often destined to lead to unexpected consequences in a largely unforeseeable future. While some instruments are simply forgotten soon after their conclusion, observers and the parties themselves have been pleasantly surprised by the great number of signatures of the FCNM in the fijirst months after the procedure started. Tove H. Malloy and Ugo Caruso (eds.), Essays in Honour of Rainer Hofmann Copyright 2013 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-21441-5 pp. 63-78

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In general, the initial will to negotiate, as well as the goals pursued at a certain point in time, may be altered during the sometimes decade-long travaux préparatoires due to changes in the international setting, the rapidly evolving situations in diffferent countries, new approaches in other international organizations than the one in charge with codifijication and so on. The outcome may be diffferent from that envisaged in the beginning. In the case of the FCNM and the ACFC the factors mentioned have indeed produced outcomes diffferent from the initial will, and in the given circumstances it must be emphasized that most of these outcomes were to the benefijit of the cause, the protection of national minorities in Europe. The fijinal text of the FCNM was ready in roughly two years of negotiations. The fijirst Terms of Reference have been issued in 1992. These terms have been amended as negotiations progressed and the document, undergoing serious changes from the fijirst drafts, was adopted in its fijinal version as we know it in 1994. In comparing with other cases, this is a particularly short time. There are a number of explanations of this speed in negotiations, partly related to the ethnic conflicts that erupted in some countries of Eastern and South Eastern Europe after 1989, partly to the numerous parallel undertakings in other international organizations and fora. Though it was rarely spoken about it in offfijicial meetings, the twentieth century history of national minority protection and prominent memories of the failure of the League of Nations’ system loomed large. The situation the League had to face in Eastern and South Eastern Europe was the result of the collapse of three empires, the Ottoman, the Russian and the Austro-Hungarian empires, which treated nationalities, as they were called at the turn of the nineteenth century, in their own way and not always peacefully. Imperial manipulation of the groups concerned, bloody ethnic and religious conflicts, cruel treatment and murders were not uncommon. One influential interpretation of events in the early 1990s was that the nineteenth century rooted national conflicts in the region have never been resolved; Socialism has just frozen them. With the meltdown of the system, the old demons came back to life, crawling out from the “refrigerator” in some cases, in others just breaking the door open. Nationalism, old style, has become indeed a major ideology providing political legitimacy to a number of new parties and movements in a region undergoing troublesome transition, some of which came to power in certain states in the fijirst free elections ever, or in living memory in a number of other countries. Old problems have been compounded by the newly found freedom of speech, allowing some persons to use the most despicable hate-speech vocabulary against real or perceived political opponents, and “re-orienting” the old totalitarian scapegoat creation by targeting mainly minority groups and persons belonging to such groups, .

Advancing the Mandate in Post-Communist Countries

especially the weakest and the most dispossessed both in a political and economic sense. All of this is well documented. What is to be mentioned here is that, on the one hand, the new political and geopolitical realities were much more complex than could be grasped by the black-and-white thinking of the Cold War era and, on the other hand, the situation in individual countries was extremely fluid, just to mention the territory of the former Yugoslavia. II.

The Challenges of Drafting a Pan-European Instrument

It is understandable that the negotiating parties in the CoE, for objective reasons and despite serious effforts, were not able to foresee all future situations to be covered. In the Committee of Experts on Issues relating to the Protection of National Minorities (DH-MIN), it’s Working Party, and then in the Ad Hoc Committee for the Protection of National Minorities (CAHMIN), there have been frequent exercises of imagination on how a proposed language for one envisaged right or another would play out in practice. Pressured by time, by developments in other organizations and high expectations on behalf of freshly self-organizing civil society groups in Eastern and South Eastern Europe, inter alia, the negotiators tended to agree on some minimum common denominators at the price of sweeping generalizations. As already mentioned, this practice has created some disappointments among certain CoE Member States and independent experts, but in the long term proved to be crucial for the activities of the ACFC. The problem of regulating extremely fluid situations seemingly “forever” was only one source of concern in the early 1990s. None of the key actors had any illusions at the beginning that the document resulting from the codifijication process—whether it be a special convention, an additional protocol to the European Convention on Human Rights and Fundamental Freedoms (ECHR) or a framework convention with a flexible content, all relating to the protection of national minorities—would be opened up for amendments in the foreseeable future pending on changes on the ground. Some of the potential and acknowledged pitfalls mentioned above, identifijied or not in the beginning, tend to live an independent life following the entering into force of the instrument concerned. The negotiators of the FCNM have been aware of some of them from the outset, such as the forever green issue of the defijinition of the national minority concept. It was impossible to fijind one defijinition accepted by all, though it would surely lead to trouble proceeding without one—or it was thought so. In fact, the lack of defijinition has not influenced the monitoring process, although

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from time to time it was raised as a matter of fact, but not with obstructive intention, as was the case many times before 1990. Other problems were not directly acknowledged, but most of those involved were well aware that somebody would have to face them in the future. Examples in this category can be grouped as follows: – the problem of double standards regarding the implementation of certain provisions of the FCNM, especially its monitoring in general; – in the best case scenario, competing understandings of the less concrete provisions, which were also key elements of the FCNM; in the worst case, mutually exclusive interpretations and claims of those provisions; – the question of symmetry/asymmetry of minority rights and legal obligations of all citizens of a given State, and within it the perception of minority rights as privileges. Each group raises a number of further questions, some of which came up during the drafting exercise and have been addressed indirectly in the fijinal text. The principles of non-discrimination and equality before the law of persons belonging to national minorities, present in all drafts and the fijinal text, have been the object of a general consensus; as such, the principle of positive discrimination was not included, but the need for special or specifijic State measures in guaranteeing the protection of national minorities has been recognized as legitimate. The clause that such measures shall not be considered “to be an act of discrimination” was mentioned frequently during the drafting and included also in the fijinal text. III.

Minority Rights and Communism

It might be worth recalling here that the majority of the countries of the region had before 1990 more or less articulated policies on “the national question” in general, and on “nationalities” in particular, as national minorities have been called offfijicially. In the Soviet Union and in a number of states influenced directly by Moscow, such policies have been elaborated and pursued—in some of them at least until the late 1960s—according to what was offfijicially named the “Leninist approach” towards nationalities. In the Soviet Union the concept had two main pillars. The fijirst was the “equality of rights of citizens of the U.S.S.R., irrespective of their nationality or race, in all spheres of economic, state, cultural, social and political life”, in corroboration with the principle that “any direct or indirect restriction of the rights of, or, conversely, any establishment of direct or indirect privileges for, citizens on account of their race or nationality, as well as any advocacy of racial or national exclusiveness or hatred and contempt, is punishable by law”. These elements

Advancing the Mandate in Post-Communist Countries

have been enshrined in the constitutions of the Soviet Union and similar provisions were incorporated in the Socialist States’ legislations. The second was the principle of territorial self-determination, including the right to secession within the framework of democratic centralism, meaning that the implementation in practice was dependent on the higher interests of class struggle and the building of Socialism. Under the Soviet regime, as we know, equality had taken the form of the most extreme and rigid egalitarianism always interpreted in accordance with the necessities of the class struggle. In the Soviet Union and the popular democracies emerging after 1945, this took the form of brutal exclusions and, to some extent, even the physical annihilation of all those who were regarded as enemies of Socialism. Entire strata of the populations of these states were targeted. Self-determination of peoples became after 1945 a principle of international relations and later a collective human right of peoples, while losing domestic relevance both in the Soviet Union and across the Socialist system. Within the Soviet Union, autonomous republics, or territories named after nationalities living there, came under strict and centralized political control, although the exercise of some cultural rights has been possible under the limits imposed by the Communist party. In any case, both original Marxism and Leninism had predicted the gradual loss of relevance of national and cultural diffferences in the advanced stage of Socialism and their total disappearance in Communism. In the states of Eastern and South Eastern Europe under the influence of Moscow, these principles and policies have been implemented selectively, according to the specifijic conditions of each country and changing content, in parallel with the increasing ideological diffferences between local Communist parties and the centre. Regarding the situation of nationalities, the principle of equality and exclusion of privileges became arguments and tools for restricting even previously recognized cultural rights in the service of assimilation to the dominant nation. National Communist parties were able to play at the same time the cords of internationalism and traditional majority nationalism in their countries. The link was given by the Marxist principle of total social homogenization, applied after all to culture. It was obvious that in cultural homogenization the pivot was the majority’s culture at the expense of minority languages in particular, but not only. Never mind that homogenization, meaning principally the creation of a new “Socialist culture”, caused great damages to the national and cultural identity of the majority as well. In some of these countries the notion of minority rights was equalled with privileges infringing upon the principle of equality of citizens. Claims of such rights were considered a threat to social peace and the Socialist development of the state. Despite some legal provisions to the contrary, the possibilities for persons belonging to “coexisting” or

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“cohabiting” nationalities were largely narrowed by 1989-90 in the majority of the concerned states. After 1990, the fijirst democratically elected governments in the region, among them those with a nationalist agenda beyond interpreting majority rule in an absolute sense, found all the conditions in place conducive for carrying on with the assimilation of minorities if they so decided. Linguistic matters were high on the agenda; in some countries this was related to minorities, while in some others it was not at the beginning, at least not directly. The endeavours of restoring mutually damaged identities by homogenization led quickly to tensions, the most visible being around language policies regarded by majorities in some countries as their exclusive domain. Another terrain was the re-appropriation of national histories as entitlement to territory and rule, as in the former Yugoslavia. It is also important to recall that Lenin’s ideas of the right of self-determination of nationalities (and colonial peoples), driven by the political aim of undermining multinational and colonial empires, fijirst of all the Russian empire, have not been forgotten. The second and third ranks of the local Communism parties, which remained active politically after 1989, knew well that during the Comintern their predecessors have publicly subscribed to these ideas on various occasions during the 1920s and 1930s. It was in their best interest to distance themselves from those policies and one of the most efffijicient means was to declare any claim or demand of minority rights as a fijirst step to self-determination, thus subverting the territorial integrity of the state concerned. Any tendency on behalf of minority organizations set up after 1989 towards the revitalization of former minority cultural institutions, like schools or religious establishments abolished since 1920, mostly by the Communist regimes themselves, was quickly labelled as dangerous ethnic nationalism and separatism. All these allegations have been formulated also against the historical background of the still living memories of the poisonous atmosphere of the 1920s and 1930s, when revisionist and irredentist policies of certain states of the region used the minority question as legitimizing fijirst interference in the afffairs of others, and then subversion, occupation and annexation of territories. IV.

Regional Scepticism about Minority Rights

As far as I can recall, there have been a number of difffering views back in 1992-3 among Member States about the decision of the Council of Europe to initiate the creation of norms related to the protection of national minorities. At least one government was enthusiastic; there have been a number of sceptics, with the majority—at least those who let their actual opinions known indirectly or in a confijiden-

Advancing the Mandate in Post-Communist Countries

tial manner—taking a positive, but cautious stand. It does not take too much effort to identify the main actors and their positions, but this is for historians of the future. It should be noted that only four Eastern and South Eastern European states were Members of the CoE in 1992: Bulgaria, Czechoslovakia, Hungary and Poland. Prospective Members could participate as observers, until admission to the CoE, with the right to make any comments they found appropriate in the bodies in charge with codifijication. The main point here is that sceptics had good reasons to be so. It took decades of sterile and largely fruitless discussions in the CoE and other international organizations, most notably the UN, on whether a legally binding instrument related to the protection of national minorities, let alone on minority rights, is needed or possible to draft. All this is well documented and the causes explained in detail by the relevant literature. At the same time, cautious optimists had some basis to look forward with positive expectations. Since 1990, the year of the CSCE Copenhagen Document, there have been a number of undertakings in the fijield, mostly in the form of declarations of principles that have been motivated by the eruption of ethnic conflicts in some parts of Eastern and South Eastern Europe. From this perspective, however, even enthusiasts, including a number of independent experts who have long advocated the cause, had no real reasons to celebrate. The notion of “double standards” means in general the unjustifijied use of different rules in similar situations. In our case, the similarity ends at registering the fact that groups designated by the term “national minority” are living in almost all Member States of the CoE. Yet, there have been persistent rumours in some circles in those years that the drafting exercise on “legal standards relating to the protection of national minorities”, which started in the CoE in 1992, was aimed chiefly at the post-Communist countries of Eastern and South Eastern Europe. This was actually the case as far as the direct and immediate cause of the process is considered, but the argument that the application of these legal standards would be restricted to this group did not hold, due mainly to the characteristics of the normative activities of the CoE, although there were certainly some who would have been delighted by such an outcome. What was not possible regarding human rights—and a consensus emerged earlier that minority rights are part of universal and indivisible human rights—was worked out at the level of politics among nations. The spring 1993 initiative, called in the beginning the Balladur-plan and developed by 1995 into the now largely forgotten European Stability Pact (ESP), made linkage between minority rights and the question of the stability of state frontiers, the major issue in Eastern and South Eastern Europe at that time (it still is in some areas of the region). The 1993 Copenhagen Criteria for EU accession included the protection of national minori-

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ties, with the view of all potential candidates whose majority happened to belong to the same region.1 This dual and parallel approach by the EU Member States at that time (who have also been long-time Members of the CoE), though otherwise fully justifijied by political rationality, was perceived in this region as proof of double standards in their position regarding national minorities. The positive reading of the state of things at that time was that certain “Western standards” (as they were called by some in this region) on national minorities and solutions to address minority situations would be “somehow compelled by somebody” onto the region, of course in a selective manner and in accordance with the wishes of the speaker. The negative reading was that the future FCNM would not be applied in Western Europe, whatever was meant by this. None of these outcomes occurred. There is nothing in the FCNM hinting to the often quoted model-autonomies in Western Europe, to the disappointment of those who had hoped for that, and the Framework Convention was signed and ratifijied by most “Western Europeans”, who have been undergoing the same monitoring procedure as all other parties to the convention. It was evident that the situation in the State Members of the CoE before 1989 difffered signifijicantly from that of the transition countries of the east and the southeast. For example, it was questioned how and to what extent such diffferences were politically relevant in the drafting procedure and their efffect on the future document. It was exceptionally difffijicult to conceptualize these facts. One diffference was implicitly formulated in the mandate of the OSCE High Commissioner on National Minorities (HCNM). The High Commissioner was not allowed, according to the 1992 terms, “to consider national minority issues in situations involving organized acts of terrorism or to communicate with or acknowledge communications from any person or organization that practices or publicly condones terrorism or violence”. Terrorism and its public condoning, or any incitement to violence was not characteristic, at least at the level of daily political discourse, to Eastern and South Eastern Europe before the 1990s. It was to become one a couple of years later. In any case, the restriction of the mandate was regarded by some as further evidence of concentrating on the eastern part of the continent. The HCNM was mandated to act as an institution of early warning regarding conflicts in the making, before they degenerate. The region was full of such “pre-conflict” situations emerging before 1992 and it was clear that the CoE had no business in the matter, but it also could not completely remove itself. What has to be emphasized here is that it was apparent from the outset that the century-old philosophy had not changed as far as the very general approach was con1

See European Council, Copenhagen Summit, 21-22 June 1993.

Advancing the Mandate in Post-Communist Countries

cerned. The security perspective—indicated in a straightforward way by the mere word “protection”—had primacy over the “rights” approach. The irrefutable logical sequence underlining this philosophy was the following: a) everyone is interested in peace and stability in Europe; b) the implicit and most important political objective of the planned document is the internal stability, rule of law and respect for the territorial integrity and national sovereignty of the State Parties; c) the means available and compatible with the nature of the CoE for achieving the goal is the improvement of the situation of the persons belonging to national minorities through respect of their identities and rights, in order to make them satisfijied and by this, loyal citizens. The 1992 Terms of Reference of the CoE Steering Committee of Human Rights (CDDH) to the DH-MIN were careful to emphasize the “complementarity of the work of the CoE and that of the CSCE”, indicating clearly the above mentioned perspective. While complementarity does not imply any formal relationship between the two organizations, their Members were and are largely the same countries who gave precedence to the security approach. Major players naturally felt responsibility for stability in the region, since they have been at the same time guarantors of the postWWII treatises, regulating, inter alia, the borders of the countries situated there. V.

Adapting the Monitoring to Country-specific Issues

Regarding some of these countries, the question of the stability of borders and territorial integrity occurred directly and in an explicit way, fuelled by ethnicity and perceived historical rights. In other countries the security aspect had the broader meaning of societal security. In addition, the difffijicult transition from a state-controlled society to liberal democracy and market economy could aggravate existing ethnic conflicts, as it was correctly assumed. The compliance with security considerations, including fears of waves of war or economic refugees, was deemed to be accompanied with a number of other measures. The States concerned, some of whom were already CoE Members while others were prospective Members, had to prove that they are able to act as decent international citizens, and the international community had to make clear that it is ready to give at least a moral remedy to the minorities concerned after decades characterized by the lack of efffective action by international organizations. By making the protection of national minorities a condition of EU accession, the fijirst steps have been made on both fijields, but it has been left to the monitoring of the FCNM to evaluate how fijirm and lasting the measures taken will prove in the future. It is common place that the situation of national minorities in each country is unique in its own way. Analogies in most cases are not possible and one mechanism (where existing in the early 1990s) or set of measures aimed at national minorities

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in one country could only be adopted, if at all, with a series of amendments in another country. This is easily stated, without a great risk of error, but application in practice raises great problems. The ACFC had to apply a number of principles considered equally valid in all State Parties, while taking into account to the greatest extent possible the specifijic conditions of each case monitored. The shadow of double standards was looming large in the background. Exceptions had to be avoided, although a number of State Parties themselves in fact requested exemptions from some provisions of the FCNM in the Declarations submitted upon depositing the instruments of the ratifijication. It should be noted that out of 18 Reservations and Declarations submitted until the end of 2007, just eight have been forwarded by States in the region, and in my opinion, only half of these can be interpreted as asking for exemptions regarding the subjects at which the FCNM is aimed. VI.

Civil Society

Due to the preponderance of the “program-type” provisions of the FCNM, there was room from the outset for maximalist and minimalist interpretations of the same paragraphs or articles. It is not difffijicult to guess which State Parties preferred what approaches, which lead to strong views on what is desirable in terms of the scope and goals of the agreement, what is possible in principle, and what is feasible in real life. It appears, in general, that not only the “subjects”, whether individuals and/or groups, tend to have difffering views on desirability and feasibility than State Parties negotiators and guarantors of the norms contained in them, but moreover the representatives of various groups may not agree on a common ground. Although Articles 6, 20 and 21 FCNM contain some provisions on how persons belonging to national minorities shall behave in certain circumstances and what obligations they have, in practice the issue of cooperation is much more substantial and crucial to successful implementation, or failure of it for that matter. In other words, without cooperation on behalf of society in general, including a plethora of non-state actors in this specifijic fijield, among them minority organizations, even the most benevolent policies would bring poor results, or are doomed to failure. The monitoring of the Framework Convention by the Committee of Ministers (CM), with the assistance of the ACFC, started from the very beginning with effforts to raise awareness among all concerned Parties on this subject. Fostering dialogue, urging in some cases all Parties to exercise if not empathy, then a minimum of mutual understanding in their policies or public discourse, and emphasizing in all stages the importance of openness and transparency were among the main tools used by the ACFC in those times aimed at meeting these ends.

Advancing the Mandate in Post-Communist Countries

A note should be inserted here. The FCNM is, of course, a State-centred instrument; what else can it be, since it was concluded by States and supervised by the same States, some of whom did not even ratify it, although they were involved in the process of the drafting and participate in the monitoring procedure. The efffijiciency of the system depends on governmental action, and the quality of that action. In the concept of the document, the emergence of civil society initiatives, including those of persons belonging to minorities, are to be regarded largely with passivity by governments once they satisfy the criteria of conformity with the national legislation. In the former Communist countries of the region there was no tradition of civil society activities independent of the government, therefore newly emerging organizations had to look for models where they were functioning. According to the fijirst fijindings, until the commencement of monitoring and the practice of country visits by the ACFC, there was some involvement in form of consultations with civil society and minority organizations in shaping governmental policies in the minority fijield. However, their participation was not systematic and articulated at the level of institutions, notwithstanding diffferent needs that sometimes changed in a rather short period in time. I shall emphasize here again that it was the very general formulations of the FCNM, especially its Article 15 on participation, which made possible the catalyst role of the ACFC regarding the strong and active involvement civil society organizations and minority representatives in the process, all in the framework of sustained, systematic and regular participation. That diffferent interpretations, especially on the nature of minority rights (individual vs. collective, universal vs. national, that is linked to citizenship or not, etc.) were extant when negotiations began was well known. In 1992-1993 these diffferences were deemed problematic mainly because they were perceived as being relevant only in interstate and not intrastate relations. With good reason the drafters of the FCNM wanted to avoid dragging the CoE or any of the bodies in its governmental branch into any such future would-be debates. One result was that the ACFC inherited a complex of various strong opinions on a diversity of issues, which are mainly expressed by governmental bodies (sometimes in disagreement with each other) and minority representatives, as well as sometimes by local experts and civil society activists during country visits. Members of delegations on fijield missions tried to do their best to explain the merits of such problems, while also trying to avoid taking positions on theoretical questions considered largely irrelevant to the implementation of the FCNM. I can recall that during a visit of the delegation of the ACFC, an amicable discussion with government representatives took place and, inter alia, the question of collective rights was raised by one offfijicial. It was explained in detail why the issue of whether collective rights exist or not has no great influence on the

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monitoring process; this happened almost two decades after the beginning of the drafting, with the country concerned being part of the exercise from the beginning. VII.

National Minorities in Interstate Relations

Nonetheless, at the beginning it was not these types of situations, which as mentioned were foreseeable and discussed by the Working Parties, that created the greatest headaches. It was the complex kin-state question, usually not discussed as such during the drafting, which was in the background. The Balladur-plan of 1993 and the subsequent process leading to the ESP tried to tackle this by inviting the concerned States to conclude bilateral agreements, aimed, inter alia, at the situation of kin-minority groups living on each others’ territory. The content of specifijic provisions was left to the Parties themselves. Soon it became clear once again that the positions of certain States on such issues are very far from each other. From the point of view of the FCNM negotiating process and the monitoring mechanism subsequently developed, the problem of reciprocity was among the most prominent ones. Perhaps it is not an overstatement to say that the philosophy of the codifijication process and the document under preparation was partly shaped in such a way as to restrict to a minimum any possible basis for reference to reciprocity in the ways and measures of the implementation of the Framework Convention. Reciprocity in international relations in general is an accepted principle, but as is well known, relations between States who have kin-minorities on each others’ territory can easily lead to situations when either abuses in the exercise of certain rights take place, or unilateral unjustifijied demands and claims are formulated, leading to tensions. The CoE partly succeeded to fence offf this issue during the travaux préparatoires and free the monitoring process from it. As is understandable to some extent, it was unavoidable for negotiating parties in 1992-94 to argue in a way that reflected their own internal situations and their existing desires regarding their kinminorities, of course without voicing them directly. Here I go back to the question of what is desirable, possible and feasible. In my view one of the great lessons of the past 15 years of monitoring and the preceding codifijication process is that all concerned parties are now better situated to realize that there is a great diffference between: a) the wishes of various interested parties, b) the possibilities opened up over the years in minority protection, legitimized by international instruments and good practices, and c) what can be realized in practice in specifijic situations. The ACFC in its Opinions tried to emphasize—sometimes directly, sometimes implicitly—that fijinding suitable solutions to specifijic needs is not a deviation from the general principles of the FCNM, though this practice cannot

Advancing the Mandate in Post-Communist Countries

be transformed into a general rule. Participation in politics in general, and in coalition governments in particular, by minority political parties or organizations has contributed signifijicantly to the clarifijication of such matters. VIII.

Citizenship

Human rights are universal, indivisible and impersonal, while national rights are linked to citizenship and minority rights to certain persons. In the early 1990s national minorities were regarded in Eastern and South Eastern Europe by many as groups who, beyond a specifijic ethnic and cultural profijile, had “mother countries” or kin-states. If the enjoyment of minority rights, whatever that means in a specifijic situation, is conditioned by citizenship in the country of residence, then kin-states have no business in principle in relation with the subjects of those rights. If kinstates are recognized as having a legitimate right to support and follow the situation of their related minorities in other States and to raise questions in international fora and bodies regarding their treatment by others, then logically the issue of citizenship would not come into play. In some cases, persons belonging to such groups would be considered as enjoying privileges in terms of access vis-à-vis their fellow citizens. It is a vicious circle that was not resolved during the codifijication process, and it was left to the CM and the ACFC to fijind a compromise solution. For example, the Opinions delivered until 2012 had been carefully drafted in order to offfer State Parties the possibility to fijind solutions regarding those who are not their citizens, i.e. persons who are seeking refuge or are residing temporary on the territory. Of course the principle of non-discrimination applies to all these situations, but for the extremely diverse situations produced in real life there is no general solution, and there probably will not be in the foreseeable future. With all the effforts of the ACFC to the contrary, it can be safely stated that the public opinion in some of the countries of the region still views minority rights, without any qualifijications, as privileges. The continuous and increasing influx of refugees—mostly transiting—in these countries adds to the tensions arising from such opinions. IX.

Reflections on the Challenges

In daily practice these questions cannot be separated in the way I have done it above. The DH-MIN, in a report submitted to the CDDH approved at an extraordinary meeting in September 1993, pointed to possible controversial aspects of a framework convention. The alternatives, an additional protocol to the ECHR or a special convention, were at that time still on the table. The Vienna Summit of the Heads of State

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and Government of the CoE paved the way and subsequently instructed the CM in October 1993 to “draft with minimum delay a framework convention specifying the principles which the contracting States to commit themselves to respect, in order to assure the protection of national minorities.” The summary noted, inter alia, that The Framework Convention would include a number of programme-type provisions which created no personal rights for individuals and whose implementation would be left to the States concerned in terms of their internal legislation. […] The disadvantage of such an instrument lies in the difffijiculty of supervising its application. The conclusion or non-conclusion of bilateral agreements between States could create diffferences between minorities within the same State. As in the case of the Charter for Regional or Minority Languages, the implementation of a framework convention would be entirely diffferent from one State to another. That might give rise to considerable disparities in the treatment of national minorities.2

The suspicion of double standards goes hand in hand in most cases with—or is considered a cause of—difffering interpretations, or an efffect of them, depending on who speaks, when, and where. National rights linked to citizenship can be considered as privileges in themselves, whether minorities are involved or not. The Schengen-system is one example. Public discourse on minority rights as “special” rights in some countries in the region, eager to raise their standards and international standing, did not help in alleviating concerns to that efffect. The practice of providing citizenship on a unilateral basis to persons belonging to kin-minorities started in some countries in parallel with the codifijication process of the FCNM, but was not addressed seriously in international organizations for a long time, as the support of kin-states for “their” minorities abroad was not on the international agenda in the early nineties. Due to the fijive year monitoring cycles, the ACFC was following events as best as it could on a fait accompli basis. The CM applied routine methodology to sensitive cases or when certain Member States were of diffferent positions, calling for negotiations and compromise between the Parties, a practice sometimes leading to delays of its Resolutions. But this is only one aspect of the long monitoring cycles. In general it can be safely stated that the State Reports were sometimes themselves bypassed by events on the ground. It remained a sort of permanent task of the ACFC to seek the most up-to-date information, but it happened once or twice that even this was 2

DH-MIN, Report to the CDDH, DH-MIN(93)4, dated 28 July 1993, paras. 35-36, at .

Advancing the Mandate in Post-Communist Countries

not timely because of rapid developments, usually in State legislation. Room for all interested parties to speculate on why certain issues have been addressed in one way or another was left widely open, or simply went unaddressed at all. X.

The Role of the President of the ACFC

The ACFC works on its Opinions in camera, in accordance with the general practice of CoE specialized advisory bodies. The procedure has advantages and disadvantages, but I shall not deal with these here. The Advisory Committee’s contacts with the superior body, the CM, to whom it reports, as well as with the “external world”, are trusted mainly to the President and the Members of its Bureau. Unless not present physically, it is the President who represents the Committee before the competent organs of the CM, and this representation is realized mainly through the introduction of the adopted Opinions. On these occasions the President will have to address any aspects of the activities of the ACFC and its Opinions, the working methods and its fijindings, or any other issue considered as relevant to the subject matters by Members of the CM or its organs. The President chairs all the meetings of the ACFC (unless otherwise agreed with the Bureau or the Committee), leads the Working Groups on country missions and speaks on their behalf, and represents in general the ACFC in conferences, follow-up events, and seminars organized by governments, civil society organizations or scientifijic institutions. From this brief list, which may not comprise all the duties entrusted in the President, it is clear that the she or he has special responsibilities, sometimes shared with the Bureau of the Committee or the Secretariat of the FCNM, but usually not, due to the nature of the act performed. All the Presidents have discharged of their duties with a distinguished professionalism, stature and dedication. Rainer Hofmann will be remembered as the President who chaired and represented the ACFC in its fijirst years of existence and who was instrumental in helping enact all the innovations of the monitoring process not foreseen during the drafting of the Framework Convention and the mandate of the ACFC. These developments are analyzed in other chapters of this book. I would only stress here that Rainer was aware of all the sensitivities and possible pitfalls of the process he was leading the ACFC through. An international lawyer, a professor and scholar with undisputed authority, he had the empathy and patience, careful attention to detail, openness and long-term view needed to navigate, as we said often, the boat of the Advisory Committee through uncharted waters. In all his acts and manifestations he has substantially contributed to the consolidation of the credibility of the monitoring process of the FCNM.

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XI.

Conclusions

Although it is common knowledge, it should be emphasized again here that the FCNM and its monitoring, together with other initiatives on minority protection in the 1990s, have been undertaken against the background of the grand design of a unifijied, democratic, tolerant, hospitable and prospering Europe. Before the turn of the millennium the most important decisions had been made on the introduction of the Euro and the principles and enlargement of EU and North Atlantic Treaty Organization (NATO). The ACFC started its activities in 1998 in an atmosphere of general optimism and trust in the future. Patient and meticulous dialogue was the negotiation technique employed, which, together with compromise even on the most important issues, was made possible by the general positive atmosphere. The FCNM was the result of many compromises concluded at all levels of decision-making, from the Working Group of the DH-MIN to the Heads of States and Governments, until the result was achieved. Sometimes compromise meant that resolving difffijicult issues has been postponed to the future, and as the text of the Convention was concerned, the future meant the monitoring process. Consequently, one of the working methods of the ACFC was also compromise, notably urging the Parties through the process to make their own compromises on the implementation of certain provisions within existing possibilities, taking into account justifijied claims and desires. There have been good results in some areas, for example the adoption or the improvement of national legislation on minority issues. However, such issues—and I use on purpose this very general formula—cannot be regarded as defijinitely resolved due to the nature of the problem. The situation of a minority group in a country may change in time; political representation is only one example. A minority party can be in one election cycle part of a ruling coalition, but in another be part of the parliamentary opposition. Demographics also change constantly. Governments therefore have the continuous task of paying attention to how the situation evolves and taking the necessary measures, as the constant formula used by the ACFC reads “in consultation” with those concerned. This is with the caveat that there is plenty of room to search for compromises. Such compromises may not seem possible in those cases when there is the intention, or even action, to undo the achieved results unjustifijiably, and in opposition to the will of the majority of those concerned. That is a constant challenge of the monitoring process and the reference in such context to Article 22 FCNM may not sufffijice.

Part II The Mandate and the Normative Force of the FCNM

Chapter Four The Role of Dialogue in the Monitoring Process of the Framework Convention Antti Korkeakivi

I.

Introduction

The term “dialogue” has many meanings that vary greatly according to the context. Its use is frequent in communication studies and political science. In conflict resolution some experts argue that it has become so common that people are facing “dialogue fatigue” and that dialogue has become a buzzword of international politics and a mantra in the public diplomacy debate.1 While in some cases dialogue-related work is built on working defijinitions,2 references to dialogue and associated terms are frequently floated around with little efffort to explain the concept and, in some cases, dialogue is used as a catchall phrase that covers any conversation between two or more parties. Modern human rights discourse is also peppered with references to the importance of dialogue. Constructive dialogue, permanent dialogue, constant dialogue, structured dialogue, post-monitoring dialogue and other terms are regularly 1

See e.g. Meta-Culture, “The Importance of Language in Conflict Resolution”, at and Karina Pultz, “Dialogue and Power: Understanding Danish Public Diplomacy Efforts in the Middle East”, 7 The Hague Journal of Diplomacy (2012), 161180.

2

For example, the Council of Europe (CoE) White Paper on Intercultural Dialogue defines intercultural dialogue as an “open and respectful exchange of views between individuals, groups with different ethnic, cultural, religious and linguistic backgrounds and heritage on the basis of mutual understanding and respect”. CoE, “White Paper on Intercultural Dialogue: ‘Living Together As Equals in Dignity’ (CoE Publishing, Strasbourg, 2008), 17.

Tove H. Malloy and Ugo Caruso (eds.), Essays in Honour of Rainer Hofmann Copyright 2013 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-21441-5 pp. 81-96

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invoked in contexts ranging from human rights discussions between the EU and China to UN and Council of Europe (CoE) human rights work. Indeed, dialogue, at least when widely interpreted as conversation between two or more parties, can be seen as part of the processes of virtually all human rights mechanisms and bodies. The emphasis on dialogue is often particularly pronounced in extra-conventional contexts, where a mechanism is not rooted in a human rights treaty, such as the European Commission against Racism and Intolerance (ECRI) with its various forms of dialogue,3 or where facilitating a dialogue is the raison d’être of a human rights organ, as is the case for such bodies as the UN Forum on Minorities Issues. 4 The importance of dialogue is also often highlighted in human rights treaty body contexts, and references to the need to pursue dialogue can be found in the work of virtually all of the regional and global human rights mechanisms. In the work of the UN human rights treaty bodies, the submission of a State Report is followed by a constructive dialogue involving a meeting between the State Party and the respective treaty body in Geneva or, in limited cases, New York. A State that is party to all core human rights treaties and submits all its reports on time will participate in an average of two UN dialogues annually. The role of these dialogues is widely acknowledged, and one of the issues being examined in the on-going discussions on UN treaty body strengthening is how to make them more interactive and productive.5 Arguably, even judicial human rights bodies could be seen as pursuing dialogue in the process of reaching their decisions; indeed, the role of the European Court of Human Rights (ECtHR) has been described as that of a “dialogical partner”.6 3

For details, see Lauri Hannikainen, “Dialogue between States and International Human Rights Organs – Especially the European Commission against Racism and Intolerance” in Asbjørn Eide, Jakob Th. Möller and Ineta Ziemele (eds.), Making Peoples Heard: Essays on Human Rights in Honour of Gudmundur Alfredsson (Martinus Nijhoff Publishers, Leiden, 2011), 323-340.

4

The UN Forum on Minority Issues was established by the Human Rights Council in 2007 “to provide a platform for promoting dialogue and cooperation on issues pertaining to persons belonging to national or ethnic, religious and linguistic minorities”. Human Rights Council, Forum on Minority Issues, Resolution 6/15, dated 28 September 2007.

5

Navanethem Pillay, “Strengthening the United Nations human rights treaty body system: A report by the United Nations High Commissioner for Human Rights”, OHCHR (2012), 55.

6

Joseph Weiler argues that the ECtHR is a “dialogical partner with the Member States Parties to the Convention, and the legitimacy and persuasiveness of its decisions resides both in their quality and communicative power”. Joseph Weiler, “Lautsi: Crucifix in the Classroom Redux”, 21 European Journal of International Law (2010), 1-6, at 1.

The Role of Dialogue

Nonetheless, it is rare to fijind a chair of a human rights treaty body that has made dialogue so central to her or his task as Rainer Hofmann has made it as the President of the Advisory Committee on the Framework Convention for the Protection of National Minorities (hereinafter “Advisory Committee” or ACFC). The fact that the word “dialogue” is mentioned 18 times in his introduction to a collection devoted to the Framework Convention for the Protection of National Minorities (hereinafter “Framework Convention” or FCNM) is indicative of this,7 but his record as the President of the Advisory Committee is even more demonstrative of his vision of integrating dialogue as a principal tool in the Advisory Committee’s work. This is a vision that he has consistently pursued from the outset of the activities of the Advisory Committee. In this article, I will examine how the Advisory Committee, under the leadership of Rainer Hofmann, gradually expanded its role as a dialogic partner, a role that was not explicit in the Framework Convention. While the Advisory Committee has pursued such dialogue with a range of interlocutors, including minority representatives, civil society, the Committee of Ministers (CM) and others, I will largely concentrate on dialogue with the States, keeping in mind that other contributions to this volume examine such issues as interaction with civil society. I will also discuss what is implied by the references to dialogue, how it differs from, say, consultations or negotiations, and what are the perceived limits of such a strong emphasis on dialogue, bearing in mind that the Advisory Committee pursues a monitoring task rooted in a legally binding treaty. II.

Building Monitoring on Modest Foundations

A reading of the foundational documents establishing the monitoring system of the Framework Convention—Articles 24-26 FCNM and CM Resolution 97(10)—does not necessarily prompt one to think big in terms of the role of the Advisory Committee in pursuing a dialogue or otherwise. While the text of the Framework Convention itself promotes dialogue within States Parties, including by stressing the importance of a climate of dialogue in its preamble and intercultural dialogue in its Article 6, Articles 24-26 on the monitoring procedures did not suggest a strong dialogue (or other) role for the Advisory Committee. The “advisory committee”, written in lowercase, was simply envisaged as a body of experts assisting the Committee of Ministers, as the latter carries out the monitoring of the implementation of the Framework 7

Rainer Hofmann, “The [FCNM]: An Introduction”, in Marc Weller (ed.), The Rights of Minorities in Europe: A Commentary on the European [FCNM] (Oxford University Press, Oxford, 2005), 1-24.

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Convention. While subsequently some more details as to the role of the Advisory Committee were included in CM Resolution (97)10, it too contains limited suggestions of direct links, let alone direct dialogue, between the Advisory Committee and State Parties. The texts easily give the impression that the drafters’ expectation was that the Advisory Committee would review State Reports (formally speaking not submitted directly to the Advisory Committee, but to the CoE Secretary General) and other written information submitted to it and that it would on this basis advice the CM, the body with the explicit responsibility for the monitoring. Meetings and other direct contacts are not fully excluded but they appear more as an exception rather than a norm. That being the textual basis, it is no surprise that at the beginning of the monitoring process, the expectations were in many corners modest and the potential of the Advisory Committee to establish itself as a true monitoring body was questioned by a number of commentators. However, immediately following the election of the fijirst composition of the Advisory Committee, Rainer Hofmann and other incoming Members started to work to challenge this view and address identifijied gaps and shortcomings through concrete recommendations and measures, in which the role of the Advisory Committee as a dialogic partner was a key component. The leadership of Rainer Hofmann in these effforts was demonstrated already prior to his election as the President at the fijirst formal session of the Advisory Committee. In June 1998, he chaired an important European Centre for Minority Issues (ECMI) conference on the implementation of the Framework Convention in Flensburg, which helped to sow the seeds of a number of initiatives that the Advisory Committee soon thereafter pursued formally.8 The ECMI recommendations resulting from the conference stated, inter alia, that the Advisory Committee should “undertake missions to the States Parties concerned” and “devote sufffijicient time to engage in dialogue with governments, representatives of minorities and NGOs, and organise hearings in order to facilitate this objective”.9

8

In addition, other initiatives, including those by Minority Rights Group International (MRG) were influential and complementary, as explained in the article on the beginning by Alan Phillips in this volume.

9

María Amor Martín Estébanez and Kinga Gál (eds.), “The ECMI Flensburg Conference Report on Implementing the [FCNM] June 1998” 3 ECMI (1999), 53.

The Role of Dialogue

III.

Pro-dialogue Interpretation of Monitoring Rules

At its fijirst meeting, the Advisory Committee, under the leadership of its fijirst Bureau composed of Rainer Hofmann, Alan Phillips and Gáspár Bíró, adopted its Rules of Procedure and the outline for the fijirst State Reports. While these documents leave the door open for gradually strengthening of the role of the Advisory Committee, they do not explicitly address direct dialogue between the Advisory Committee and State Parties or others. The focus was still in the traditional elements of a monitoring mechanism based on State Reports, to be reviewed and discussed in Strasbourg. The idea of direct dialogue with governments and others was however discussed, and the preference for in situ visits was expressed early on.10 In looking for ways forward, the limited references to the role of the Advisory Committee turned out to be in some respects a blessing rather than a burden. The lack of detailed language left scope not only to pursue a dialogue-friendly interpretation of the regulations at issue, but also enabled the Advisory Committee to gradually fijill the gaps with working modalities and methods that would bolster the impact and efffectiveness of the Advisory Committee work and the monitoring mechanism in general. Just as the lack of defijinition of the term national minority provides scope for dynamic developments, lack of detailed norms on the Advisory Committee left the Committee with a certain degree of flexibility in developing its role. The gradual introduction of the practice of country visits is a telling example of the way in which the Advisory Committee used this flexibility to break new ground for deepening dialogue. While such bodies as ECRI and European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) already conducted country visits (with CPT having a particularly strong treaty-based mandate to visit places where persons are deprived of their liberty), there were no precedents of a regular country visit practice amongst human rights treaty processes based on State Reports. Had the idea of regular country visits been addressed by the States when negotiating Resolution 97(10), it is likely that a number of States would have had reservations about backing such a practice and they could have made proposals to have such visits decided on by the Committee of Ministers. As the Resolution was silent on the topic, the Advisory Committee developed this method of work gradually through practice. The formal kick-offf for this was an invitation extended by the Government of Finland on 23 March 1999 for the Advisory Committee to visit Finland. As there was no reference to country visits in the Rules, the Advisory 10

On early proposals for country visits, see Rianne M. Letschert, The Impact of Minority Rights Mechanisms (TMC Asser Press, The Hague, 2005) 166.

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Committee concluded there was no need to obtain clearance or approval for a visit as such by the CM. Instead it informed the CM of its intention to meet the Government of Finland at the latter’s request in Helsinki. Resolution (97)10 did however stipulate that meetings with sources other than States would need prior approval by the CM, and as that was seen by the Advisory Committee a key component of any visits, authorization was duly sought. No State objected to the Advisory Committee having such meetings in the course of its visit to Finland, and the visit of an Advisory Committee delegation, headed by Rainer Hofmann, took place on 23-24 August 1999. Although the Advisory Committee met with a range of authorities, parliamentarians, the Ombudsman and a number of human rights NGOs and minority representatives, as well as leading scholars, the visit to Finland was limited in length and contained no travel outside the capital. But the precedent was set for not only country visits but also for having meetings with both governmental and non-governmental interlocutors, following which more extensive visits with more developed agendas and dialogue could be planned and implemented. For the fijirst visits, the Advisory Committee sought and received specifijic mandates for meetings with non-state sources, but as the visits became more common, the Advisory Committee sought and received a blanket authorization for such meetings during country visits conducted upon invitation by the State Party concerned.11 While making space for dialogue in the process of preparing its Opinions, the Advisory Committee also started early on to propose practices that would ensure that dialogue continues following the adoption. In this respect, one of the fijirst steps was the Advisory Committee’s proposal that its representative could introduce new Opinions to the CM “so that the Advisory Committee could provide the CM with further clarifijication on issues related to the opinion concerned” and thereby engage in direct discussions with the State Party and other Members of the CM.12 This proposal was quickly accepted by the CM, and starting with the introduction of the fijirst-ever Advisory Committee Opinions by Rainer Hofmann, the Advisory Committee has consistently been invited to present Opinions and discuss other elements of the monitoring process at the CM Rapporteur Group on Human Rights (GR-H). As has 11

The development of the practice of country visits was facilitated by the fact that Advisory Committee aimed to address their budgetary implications by streamlining its plenary meetings, and instead of holding separate country working group meetings and Bureau meetings in Strasbourg, these were largely convened in the margins of the visits and plenaries.

12

ACFC, Activity Report Covering the Period from 1 June 1998 to 31 May 1999, CFC/ INF(1999)001, dated 15 September 1999, para. 21.

The Role of Dialogue

been underlined by Rainer, this practice “strengthens the constructive dialogue between the two monitoring bodies” and “adds to the mutual understanding”.13 The Advisory Committee also started to advocate for follow-up activities in State Parties, with Committee’s input and wide civil society participation. Despite the fact that the Framework Convention and Resolution (97)10 explicitly envisaged the Advisory Committee playing a role mainly between submission of State Reports and the adoption of the corresponding CM Resolutions and getting involved in follow up only on ad hoc basis as instructed by the CM, the Advisory Committee received backing for its active interaction with States between the submission of State Reports not only from individual States but also by the CM. Starting with the fijirst country-specifijic Resolutions on the implementation of the Framework Convention, the CM included in its Resolutions a standard paragraph inviting the State Party concerned to continue their on-going dialogue with the Advisory Committee and to keep the Advisory Committee regularly informed of the measures taken in response to the conclusions and recommendations of the CM. IV.

Practicing Dialogue

Having successfully ensured that the Rules accommodate dialogue both in the run-up to, and after, the adoption of Opinions and enable direct conversations with States, non-governmental organizations (NGOs), civil society and minority representatives, the Advisory Committee’s started regularly pursuing such interaction in practice. While there have been some isolated exceptions, governments have, overall, continued to be willing to extend invitations to the Advisory Committee, and the Committee has had limited use for the authorization it sought and received to meet with “other sources” outside the context of state visits granted by the CM “in order to ensure that the Advisory Committee is provided with a balanced range of opinion”.14 Indeed, even some State authorities that were originally hesitant about Advisory Committee visits have gradually come to appreciate this method of work and extended invitations to the Committee,15 which carried out 93 visits to State 13

Rainer Hofmann, “Review of the Monitoring Process of the [CoE FCNM]”, 1 European Yearbook on Minority Issues (2001/2002), 435-460, at 444.

14

CM, [FCNM] Renewal of Authorisations Granted to the Advisory Committee for the First Monitoring Cycle, CM/Del/Dec(2003)835/4.3E (835th Meeting), dated 8 April 2003.

15

Spain is a case in point. There was no visit to Spain during the first monitoring cycle, but an invitation was extended by the authorities in the second and third cycle. In contrast, there was no visit to Portugal in either first or second cycle.

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Parties between 1999 and 2012, as well as three visits to Kosovo under the agreement with the United Nations Interim Administration Mission in Kosovo (UNMIK). Simultaneously, States have continued to organize follow-up seminars in cooperation with the CoE and the Advisory Committee, albeit with less consistency. By late 2012, a total of 51 follow-up seminars had been held. The signifijicance of discussions in situ is such that Rainer Hofmann has argued that country visits are “probably the most important aspect of the procedure leading to the drafting of an opinion”.16 It is this practice that we need to examine in order to determine what the Advisory Committee actually means by the term dialogue. Clearly constant reference to the term dialogue implies that the goal of the Advisory Committee, through visits and other modalities of dialogue, was not only to obtain additional information and then come up with the Opinion of the Advisory Committee to be submitted to the CM. Indeed, the Advisory Committee has not described its visits to State Parties as “fact fijinding” visits, which is a term often employed in human rights context, but refers to them as country visits. Instead, there is clearly an expectation of interaction and exchanges, and that not only are State Parties providing information, but the Advisory Committee itself also engages in communication that goes beyond merely putting questions to the interlocutors. Furthermore, it could be argued that both parties are expected to take into account the views and comments made. Otherwise, we approach a dialogue of the deaf. Such a two-way exchange has indeed been the practice. While meetings with State Parties and others often start with a specifijic set of questions, they have often turned, at least partially, into conversations in which not only the hosts but also the Advisory Committee representatives offfer comments and explanations as to their preliminary positions, often rooted in the specifijic articles of the Framework Convention. This type of exchange has been further developed after the fijirst cycle, as the fijirst fijindings of the Advisory Committee were already known and could be elaborated on in such conversations. Such interactive dialogue has been particularly Rainer Hofmann’s forte, built on his encyclopaedic knowledge of various minority situations and standards, also enabling him to bring in comparative elements to such discussions. One factor that facilitates dialogue is the possibility to use a common language. This has become an important challenge as the Advisory Committee has expanded its range of interlocutors well beyond national bodies and the most prominent national human rights NGOs and minority associations, many of who are used to communicating human rights issues in fluent English, and reached out at regional and local levels. In this respect, the 16

Rainer Hofmann, “Review of the Monitoring Process of the [CoE] Framework Convention”, 2 European Yearbook of Minority Issues (2002/2003), 401-433, at 403.

The Role of Dialogue

linguistic repertoire of Rainer Hofmann has been an asset to the Committee as he has been capable to discuss, for example, Sami land rights challenges in Northern Sweden in Swedish and pursue dialogue on the position of Roma in relation to the persons scope of application of the Framework Convention in Spain in Spanish. Despite the above commitment to dialogue, it is important to acknowledge that during country visits the Advisory Committee has met with a wide range of interlocutors and explored regions in contexts that would not, to borrow Jürgen Haberman’s terminology for discourse in public sphere, constitute “an ideal speech situation”. In practice, addressing minority rights issues remains often sensitive and at least in the early days of the Advisory Committee’s work, there were a (small) number of isolated cases where an interlocutor challenged the Advisory Committee’s fijindings and comments during country visits and follow-up activities in a manner that would not quite match most defijinitions of the term “constructive dialogue”. In these situations, Rainer Hofmann’s communication skills were put to good use, and his calm and objective way of addressing even provocative comments was in a number of cases crucial in bringing the dialogue back on a constructive track. Indeed, these detours were often based on limited understanding of the role of the Advisory Committee and human rights monitoring process in general. V.

Justification and Limits of Monitoring through Dialogue

The types of exchanges and dialogue described above go beyond narrow, traditional perception of the tasks of a human right treaty monitoring body. Although treaty body procedures based on periodic State Reports have been described in general as “monitoring/dialogue” procedures,17 the process has traditionally been largely about the examination of State Reports and other information, coupled with some questions to clarify matters, and issuing fijindings concerning the implementation of the specifijic treaty. But the Advisory Committee has, as explained above, pursued a diffferent track, or, rather, complemented this traditional pattern with direct in situ dialogue playing a prominent role in its monitoring. This can be seen, to an extent, as reflecting specifijicities inherent in both the Framework Convention and its monitoring mechanism. First, certain incentives for dialogue are built into the text of the Framework Convention. It contains mainly—but not exclusively, as is often erroneously stat17

Asbjørn Eide, “Introduction: Mechanisms for Supervision and Remedial Action”, in Marc Weller (ed.), Universal Minority Rights - A Commentary on the Jurisprudence of International Courts and Treaty Bodies (Oxford University Press, Oxford, 2007), 1-26, at 20-21.

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ed—provisions that are programmatic in their character, and, as has been repeatedly stressed, many of its provisions are formulated in a flexible manner and contain a number of references to specifijic conditions. It follows that while the Advisory Committee can, and has, identifijied norms and policies that are in contradiction with the Framework Convention on the basis of legislative and other information received, a large proportion of its Opinions and fijindings contain comments that suggest further improvements and encourage expansion of positive measures in conditions that are, arguably, in themselves within the “framework” provided by the Framework Convention. It is in these areas where exchanges and two or three-way dialogue often take place in a manner that does not follow the traditional information-analysis-fijindings process. By making such exchanges part of the monitoring process, the Advisory Committee can better work towards improved minority protection and be a “catalyst for improved implementation” of the Convention beyond situations it fijinds incompatible with the Framework Convention. As was noted by the Advisory Committee already in its second Activity Report, visits are extremely valuable not only for the purposes of preparing Opinions but also because the exchanges of views in the course of meetings “may in themselves contribute to the protection of national minorities”.18 Through dialogue and corresponding comments in its Opinions, the Advisory Committee repeatedly proposes changes, not for the sake of changes, but where this would contribute to better implementation of minority rights, even if the present situation is not necessarily in direct contradiction with treaty norms. To quote Octavio Paz, “Wisdom lies neither in fijixity nor in change, but in the dialectic between the two”. A dialogue-centred approach has been reflected on issues ranging from all thematic topics covered by the Framework Convention to the question of personal scope of application of the Framework Convention. In this regard, Rainer Hofmann has stressed to the CM that “it is encouraging that even on most sensitive issues we have been able to conduct a dialogue in a constructive atmosphere”.19 In this respect, the flexibility of the Framework Convention has often been a blessing rather than a burden. It has enabled us to encourage improvements in the implementation of the Framework Convention without having to take a rigid position on the legal interpretation of a specifijic provision. Even in cases where the views of the Advisory Committee and the country concerned have substantially difffered, for example on 18

ACFC, Second Activity Report, Covering the Period 1 June 1999 to 31 October 2000, ACFC/ INF (2000)1, dated 30 November 2000.

19

Rainer Hofmann, Presentation at the 799th Meeting of the Ministers’ Deputies, 13 June 2002.

The Role of Dialogue

the question of the personal scope of application, we have often been able to look together for pragmatic solutions for advancing minority protection without being overly dogmatic.20 It is interesting to note that dialogue on the personal scope of application has not only resulted in the Advisory Committee raising concerns expressed by persons belonging to minorities that are not covered by the defijinition provided by the State concerned; it has also led to CM recommendations that concern minorities that are not considered by the State at issue to be national minorities for the purposes of the Framework Convention, and in some cases governments have revisited their position. That being said, changes in government positions are limited, and as Rainer Hofmann has stated, “many Governments are generally reluctant to reconsider, let alone amend, their approach to the personal scope of application”.21 Second, the importance of dialogue can also been seen as a reflection of the relatively modest normative position given to the Advisory Committee in the Framework Convention and Resolution (97)10. Considering that the Advisory Committee is tasked merely to advise the CM, it is clear that Opinions or views of the Advisory Committee were originally perceived as carrying limited legal weight themselves. Whereas in respect to the ECtHR, with its authority to issue legally binding judgments, the obligation of the State Party to implement decisions is selfevident, the Advisory Committee had to build its authority and capacity to influence—directly or through the CM—laws, practices and policies on less fijirm foundations. Far from being able, or indeed willing, to dictate its views, the Advisory Committee has to accumulate soft power and build up the persuasiveness of its Opinions by ensuring their high quality and by rooting them in interaction. In these building effforts, continuous dialogue is an important element, helping to enhance the visibility and prominence and the Advisory Committee and its views. It has strengthened the credibility and weight of the Opinions; the Opinions cannot be dismissed as being based on merely written sources, examined from a distance in Strasbourg, as they are rooted also in direct discussions in situ, as part of dialogue that goes well beyond collection of information. This has no doubt contributed to the CMs strong reliance on the Opinions, to the fact that States’ comments on the Opinions are largely constructive, and that it is extremely rare for them to identify inaccuracies in the Opinions.

20

Ibid.

21

Rainer Hofmann “The Framework Convention at the end of the First Monitoring Cycle”, in CoE (ed.), Filling the Frame. Five years of Monitoring the [FCNM]. Proceedings of the Conference held in Strasbourg, 30-31 October 2003 (CoE Publishing, Strasbourg, 2004), 19-24 at 22.

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Despite all the emphasis on dialogue, in the lead up to the adoption of Opinions the Advisory Committee has been clear that the Opinions themselves are fully the responsibility of the Advisory Committee and not subject to negotiation or amendments. Indeed, the credibility of an independent monitoring body would be easily undermined if its views would become, or be perceived as, subject to negotiation. In this respect, it is important to note that while the Advisory Committee submits its Opinions to the State Party prior to it being discussed by the CM and while the State is invited to submit its comments, such correspondence does not result in any amendments to the original text of the Opinions. This indicates that the Advisory Committee is conscious about the limits of the dialogue approach and committed to making sure that there is no over-reach in discussions with State Parties. Dialogue has its place and time prior and after to the adoption of the Opinions, but not at the time of adoption. In other words, monitoring through dialogue is part of the story but not the whole story. Even cursory examination of the substance of the Opinions will quickly show that the Advisory Committee has not at any point sacrifijiced its independent voice to its strong commitment to keeping a dialogue going. Rather, it has been able to maintain the two, and demonstrated that its legal and other views are informed but not dictated by State Parties and other dialogic partners. That being said, the Advisory Committee has through its dialogue been able to obtain a more nuanced view of the situation on the ground, which can in some cases also lead to views that would have been more critical of the situation had the Advisory Committee replied merely on written submissions without obtaining a fuller picture through dialogue. VI.

Dialogue with Transparency

Traditionally, national minority issues have often been seen as so sensitive that addressing them requires confijidential dialogue. This approach was reflected already in the procedures established for petitions to the League of Nations concerning minority treaties. The confijidential dialogue indeed continues to have its role in various human rights contexts, and it has yielded important results in fijields ranging from the protection of minorities to combating torture, as is demonstrated by the work of such bodies as the OSCE High Commissioner on National Minorities (HCNM) and CPT. In contrast, the Advisory Committee has positioned itself as a more public actor, stressing the importance of transparency and open dialogue. In doing so, the Advisory Committee has helped to de-mystify minority rights protection. This approach has been reflected in the work of the Committee from the outset, for exam-

The Role of Dialogue

ple, in its effforts to ensure early publication of Opinions, including by supporting the interpretation of Resolution 97(10) in a manner that would advance dialogue and transparency. The Advisory Committee took this pro-transparency approach to its interpretation of Rule 26 of the Resolution, which provides that the Advisory Committee’s Opinions are to be made public at the time of the corresponding CM Resolution “unless in a specifijic case the Committee of Ministers provides otherwise”. Instead of approaching this as a provision leading to permanent “confijidential” stamps for the most controversial Opinions, the Advisory Committee concluded that this provision could be invoked to move in the opposite direction, i.e. to expand transparency and authorize early publication. Consequently, it proposed, and the CM authorized in its Decision of 7 February 2001, the publication of Opinions prior to the adoption of the corresponding CM Resolutions, which has since become a common practice. This was fijirst conditioned upon authorization of the country concerned, but in 2009 further steps were taken through amendments to Resolution (97)10, which not only reafffijirmed that a State Party concerned can authorize the publication of the Opinion immediately upon transmission of the Opinion to the State Party or at any time thereafter, but also provided that, in the absence of such an authorization, the Opinion will be made public “four months after transmission of the opinion to the State Party concerned, unless that State Party submits a reasoned objection in writing to the Secretariat”.22 The Advisory Committee has also stressed transparency during its visits, although such an open-door policy has its limits. For example, while follow-up seminars involve a wide range of participants, including often media representatives, meetings with government representatives during country visits are held in closed session, pursuant to Rule 32 of Resolution (97)10. Furthermore, while the Advisory Committee has opened inclusive dialogue, for example, in its work on Thematic Commentaries,23 its plenary meetings are, as a rule, held in closed sessions, as envisaged in its Rules of Procedures.24 22

Resolution CM/Res (2009)3 amending Resolution (1997)10 on the monitoring arrangements under Articles 24-26 of the [FCNM], adopted by the CM on 16 April 2009 at the 1054th Meeting of the Ministers’ Deputies.

23

For details on the inclusive dialogue preceding the adoption of the thematic Commentary on participation, see Elena Jurado and Antti Korkeakivi, “Completing the First Decade of Monitoring: Latest Developments under the [FCNM]”, 6 European Yearbook of Minority Issues (2006/2007), 373-386, at 377-378.

24

Rule 18 of the Rules of Procedures provides that the “Committee shall meet in camera, unless the Committee decides otherwise. Apart from the members of the Committee,

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VII.

Dialogue with Others

While the Advisory Committee worked to create space for constructive dialogue between the Committee and other actors, it also from early on saw itself as a catalyst for dialogue between the authorities, minorities and civil society at the national level. This was seen as crucial both in terms of direct contribution to the implementation of Article 15 and other pertinent provisions of the Framework Convention and as a key contribution to the monitoring process of the Framework Convention. In this respect, one of the main initiatives was the introduction of so-called “followup seminars”, the fijirst of which were organized in 2002 (in chronological order) in Finland, Croatia, Estonia, Romania and Hungary. The dialogue promotion potential of these seminars was seen early on by Rainer Hofmann, who stressed that “such initiatives could turn the Framework Convention mechanism into a pioneer of monitoring human rights through constructive and continuous dialogue”25 and that they offfer an ideal opportunity “to engage in a fruitful exchange of views as to the measures to be taken by the respective governments concerned with a view to complying with the pertinent resolutions of the Committee of Ministers.”26 Horizontal dialogue with others involved in human rights monitoring was also advocated by the Advisory Committee from the outset of its activities, with a view to enriching the Committee’s own analysis and also contributing to the combined impact and coherence of the system of human rights protection. For example, cooperation with the ECRI evolved over the years, ranging from ECRI’s involvement in early follow-up activities (including in the follow-up seminar in Estonia in 2002) to the joint visit of the representatives of the two bodies to Ireland in February 2012.27 Cooperation with relevant bodies has been particularly strong in the development of Thematic Commentaries of the Advisory Committee. The most recent example being only the designated members of the Secretariat of the Council of Europe, interpreters and persons providing technical assistance may be present at meetings held in camera, unless the Committee decides otherwise.” This means that the doors are closed for both governments and civil society representatives. For more details, see Frank Steketee, “The Framework Convention: A Piece of Art or Tool of Action”, 8 International Journal on Minority and Group Rights (2001), 1-15, at 10. 25

Presentation by the President of the [ACFC], Professor Rainer Hofmann at the 799th Meeting of the Ministers’ Deputies, 13 June 2002.

26 27

Hofmann, op. cit. note 7, at 14. ACFC, 8th Activity Report, Covering the Period 1 June 2010-31 May 2012, ACFC/INF(2012)001, dated 31 May 2012, at 11-12.

The Role of Dialogue

the drafting of a Commentary on language rights, which was launched in Strasbourg in October 2012 with several human rights bodies and institutions that had contributed to its development, ranging from the Committee of Experts of the European Charter for Regional or Minority Languages (ECRML) to the CoE Commissioner for Human Rights, the Offfijice of the UN High Commissioner for Human Rights and the Offfijice of the OSCE HCNM. The Advisory Committee and Rainer Hofmann also engaged from the outset in dialogue with other processes that, while not exclusively devoted to human rights, had a direct impact on minority rights. For example, Rainer Hofmann had regular meetings with the European Commission to discuss minority rights situation in EU candidate countries. He also contributed to bilateral treaty monitoring, including after his fijirst term as President of the Committee by participating as the CoE expert, appointed by Secretary General, in the work of the Romanian-Ukrainian Joint Intergovernmental Commission on National Minorities in its monitoring of the situation of the minorities in Romania and Ukraine, thereby facilitating dialogue starting with the fijirst in the Chernivtsi region in Ukraine in October 2002.28 VIII.

Concluding Remarks

The Advisory Committee has invoked and expanded dialogue as a key component of its work, and it is today a valuable example of a human rights treaty body that engages directly with governments and others concerned in various stages of the monitoring cycle. It will be interesting to see how the Committee will continue to build on this strong foundation built by Rainer Hofmann and other Members and fijind additional avenues to further expand its dialogue-centred approach, and whether, for example, the ad hoc contact procedure or support to pending legislative initiatives will be pursued more frequently by the Committee.29 New information technology also opens up interesting new possibilities to boost such dialogue that 28

CoE Human Rights Information Bulletin No. 69, at 60. For more on the contribution of the Framework Convention to this and other bilateral treaty processes, see Emma Lantschner, “Minority Participation in Bilateral and International Reporting and Monitoring Processes”, in Marc Weller and Katherine Nobbs (eds.), Political Participation of Minorities: A Commentary on International Standards and Practice (Oxford University Press, Oxford, 2010), 705-734, at 732.

29

The ad hoc contact procedure was introduced by the Advisory Committee in 2005 as a way to address particularly disconcerting developments in State Parties, but it has not become a regular feature of the Committee’s work. See Antti Korkeakivi, “Frameworking:

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were not envisaged in the Rules governing the monitoring mechanism. For example, new web-based communication tools can greatly facilitate reaching out to new areas and interlocutors beyond localities where the Committee has the resources to pursue in situ dialogue. They also enable continuous updating of information on implementation by States and others in a much more dynamic manner than what is implied by the traditional approach, reflecting the monitoring models devised decades ago of submitting merely periodic State Reports. Re-reading the early critique Alfredsson wrote about the Framework Convention and its monitoring mechanism in his article “Frame with an Incomplete Painting” today is an excellent reminder of the progress that the Advisory Committee has made from its modest beginning.30 Most of the gaps identifijied and recommendations made in that article have been, at least to an extent, addressed by the Advisory Committee through its creative work that is all rooted in the determination to ensure increased impact of the Framework Convention. With Rainer Hofmann as its main artist during the fijirst formative years and beyond, the Advisory Committee has helped to turn the Framework Convention and its monitoring mechanism into a painting that, while never quite complete, engages Europeans, prompts dialogue and provides States, minorities and other concerned with essential guidance for strengthening minority rights in Europe.

Review of the Monitoring Process of the [CoE FCNM]”, 5 European Yearbook of Minority Issues (2005/6), 255-272, at 260-261. 30

Gudmundur Alfredsson, “A Frame with an Incomplete Picture: Comparison of the [FCNM] with International Standards and Monitoring Procedures”, 7 International Journal on Minority and Group Rights (2000), 291-304, at 291.

Chapter Five Five Years After: Continuing Reflections on the Thematic Commentary on Effective Participation. The Interplay between Equality and Participation Joseph Marko

I.

Introduction

Having been a member of the Advisory Committee on the Framework Convention for the Protection of National Minorities (hereinafter “Advisory Committee” or ACFC) during the fijirst mandate with Rainer Hofmann serving as ACFC President between 1998 and 2002 and again from 2006 to 2008, it is a great pleasure and honour for me to contribute to his Liber amicorum. When I was asked by the editors to deliver my contribution for the Liber amicorum on the third thematic Commentary on “Efffective Participation”, I was somewhat hesitant to tackle this topic again since quite a number of experts have expressed their ideas on the problem of participation of minorities since the publication of the Commentary.1 Indeed there is a bulk of scholarly literature published on “political” participation or, in the wording of the text of Article 15 of the Framework Convention for the Protection of National Minotities (hereinafter “Framework Convention” or FCNM), “efffective participation […] in public afffairs”. However, the topic of “efffective participation […] in cultural, social and economic life” has—for various reasons, not the least of which is a the lack of reliable empirical data—has played only a minor role both in the monitoring

1

See in particular Marc Weller (ed.), Political Participation of Minorities: A Commentary on International Standards and Practice (Oxford University Press, Oxford, 2010), in which I contributed a piece on “The Council of Europe Framework Convention on the Protection of National Minorities and the Advisory Committee’s Thematic Commentary on Effective Participation”, 222-255.

Tove H. Malloy and Ugo Caruso (eds.), Essays in Honour of Rainer Hofmann Copyright 2013 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-21441-5 pp. 97-120

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cycles of the ACFC itself and in scholarly literature.2 After some reflection on this, I thus fijinally agreed. The Thematic Commentary on the “Efffective Participation of Persons Belonging to National Minorities in Cultural, Social and Economic Life and in Public Afffairs” (hereinafter “Commentary on Participation”) already highlighted in Paragraph 13 that “efffective participation, full and efffective equality and promotion of national minorities’ identity and culture” are “the three corners of a triangle which together form the main foundations of the Framework Convention”.3 Hence, identity-equality-participation must be seen as “structural” normative principles of equal value underlying the whole text of the FCNM. This statement leads me to the following two problems in terms of implementation of the FCNM. Firstly, how do you translate “structure” into more specifijic rules and obligations without prioritizing (political) participation and loosing sight again of identity and equality? In particular if this has to be done in a legal discourse based on individual litigation against discrimination. And secondly, when and whereby is not only (political) participation, but also equality and thereby the recognition and promotion of diverse identities really “efffective”? Hence, how do you achieve the “integration of diverse societies” as the title of the newly published Ljubljana Guidelines of the OSCE High Commissioner on National Minorities (HCNM)4 formulates the very same problem? These questions, or more specifijically the interplay between socioeconomic stratifijication of society, poverty reduction, social cohesion and integration of culturally diverse societies, require an interdisciplinary approach, as will be demonstrated in detail in the Part II. The conceptualization of the principle of equality as “equal treatment” before the law specifijied by anti-discrimination provisions on the European and national level cannot adequately account for the phenomenon of “structural discrimination” as identifijied, described and explained by sociologists. 2

Cf. Sara Brezigar, et al., “Cultural Aspects and Life of Ethnic Minorities in Central Europe”, 61-92, and Zoltan Pogatsa, “The Economic Participation of Minorities: Deprivation, Disappearance or Flourishing?”, 193-222, both in Emma Lantschner, Sergiu Constantin and Joseph Marko (eds.), Practice of Minority Protection in Central Europe (Nomos Publisher, Baden-Baden, 2012).

3

ACFC, Commentary on the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs, ACFC/31DOC(2008)001, adopted 27 February 2008, at .

4

HCNM, The Ljubljana Guidelines on Integration of Diverse Societies (HCNM Publishing, The Hague, 2012), at .

The Thematic Commentary on Effective Participation

In efffect, the legal concepts of direct and indirect discrimination developed and applied under European and national law will never “efffectively” tackle the disadavantages of persons sufffering from “structural discrimination”. Moreover, not only “old”, i.e. “autochthonous” minorities, sufffer from this form of discrimination, but also “new” minorities stemming from immigration in Europe.5 Insofar as this has been stressed by the ACFC under the leadership of Rainer Hofmann again and again, the personal scope of application under the FCNM cannot be reduced to persons belonging to “autochtonous” minorities, as was the understanding of the governments of several countries when ratifying the FCNM as State Parties. Finally, there is not only a lack of interdisciplinary discourse between lawyers and sociologists with regard to all of these problems tackled from the perspectives of anti-discrimination, minority protection and diversity management, but also among lawyers dealing more or less exclusively with either anti-discrimination and equality law or with minority issues. Hence, this chapter can also be seen as an efffort to overcome this dual separation between and among academic disciplines and discourses in order to “efffectively” reintegrate them into a common framework of analysis. II.

“Structural Discrimination” and Institutional Racism

Sociological literature provides ample case studies on two interrelated phenomena that are labelled “institutional racism” and “structural discrimination”. A particularly demonstrative example is the British case Appiah and Wabwire in 2002, which proves how ethnic stigmatization, which may even be subconscious prejudices, works. Both black teenagers had been involved in a fijight with white boys in their school and were excluded from the school after investigations by the headmaster. Their appeals against the exclusion before the County Court and Appeals Court remained unsuccesful. Despite the fijinding before the Appeals Court contrary to the conclusions of the school headmaster that the two black teenagers had not provoked the fijight and that the number of exclusions of black students at that school was high, the judge reasoned that the school teachers had no “racist intent”. As such, the Court found that exclusions had been “reasonable […] on the evidence available” and recommended starting a Saturday school to raise black achievement rates. A governmental report in 2006 fijinally acknowledged the problem of “institutional racism” in 5

For a recent effort to develop a common framework of reference for the protection of both old and new minorities, see Roberta Medda-Windischer, Old and New Minorities: Reconciling Diversity and Cohesion. A Human Rights Model for Minority Integration (Nomos Publisher, Baden-Baden, 2008).

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the British educational system. This report made it clear that racism against black youth stems from long-standing social conditioning involving negative images of black men in particular, which stereotype them as threatening. This conditioning is then enforced by media reports of black “street culture” so that school stafff is encouraged to expect black pupils to be more “aggressive”. The report compared this with other sub-cultural expressions, such as “Goths”, who are seen as strange and diffferent, but do not face the same hostility from teachers. Thus, the report concludes that the signifijicant diffference between white and black pupils in terms of exclusion rates “is caused by systematic discrimination in the application of disciplinary and exclusion policies. The stereotype of black boys being aggressive and unruly is unconsciously communicated in the interaction between black students and school teachers”.6 Institutional racism based on generalized prejudices and thus the stigmatization of groups and their members is a consequence of the ethnic stratifijication of societies. The “socio-cultural status” of persons in a given society is defijined by the relative mutual acceptance of social actors based on cultural value judgements. Consequently, in an ideal world, “status groups” should be based on relations of mutual respect and acknowledgement between groups and their members. In stark contrast, the existence of status hierarchies, i.e. the “ethnic” stratifijication of society, with the domination of society by some groups while others are subordinated, is based on negative value judgements regarding the perception of those groups and their members as “superior” or “inferior”.7 The perception-based “stigmatization” then leads to feelings of mistrust or even hatred with the consequence of not to recognizing them as equal members of society. Non-recognition might then be translated into socio-political claims to give up their “diverse identities” and to assimilate into the dominant culture or can even end up in violence against members of groups simply because of their being “diffferent”.8 Hence, supremacy and, corre6

This case is analysed in detail by Iyola Solanke, “Stigma: A limiting principle allowing multiple-consciousness in anti-discrimination law?”, in Dagmar Schiek and Victoria Chege (eds.), European Union Non-Discrimination Law (Routledge-Cavendish Publishing, Abingdon, 2009), 23-131.

7

Cf. Philip Q. Yang, Ethnic Studies: Issues and Approaches (State University of New York Press, Albany, NY, 2000), in particular 61-100.

8

See Donald Horowith, The Deadly Ethnic Riot (University of California Press, Berkeley, 2001). I have developed a matrix of four ideal-typical relationships of groups, namely various forms of “separation” (territorial separation through secession, ethnic cleansing, institutional segregation) and assimilation, based on non-recognition of “difference”, and

The Thematic Commentary on Effective Participation

spondingly, subordination are produced and reproduced by norms and institutional mechanisms that not only simply discriminate against individual persons, but fijix their socio-cultural status as members of groups in those “ascribed” relations of supremacy or subordination and thereby “structurally” advantage or disadvantage, i.e. discriminate against them. Theoretically speaking, “institutional racism” is thus a consequence of the ethnic stratifijication of society, which has nothing to do with the talents or merits of individuals or the socio-economic stratifijication of society. But case studies in various European and North American states reveal that there is in fact a statistically relevant correlation between the ethnic and socio-economic stratifijication of societies. An analysis of the professional careers of 80,000 students in the US, having graduated in the years 1951, 1976 and 1989, revealed an enormous increase in black graduates, but, at the same time, slow progress and continuing diffferences “reflecting deeply rooted diffferences between blacks and whites in resources, environments, and inherited intellectual capital (the educational attainment of parents and grandparents)”.9 Despite desegration of the educational system becoming constitutionally mandatory after the US Supreme Court decision Brown v. Board of Education in 1954/5, 80% of African American pupils still attend racially segregated schools to this day. Racially segregated neighbourhoods in villages and towns are considered to be based on voluntary individual decisions so that “societal discrimination”—in the opinion of the Supreme Court judges—does not constitute a “compelling state interest” for the justifijication of afffijirmative action measures, i.e. planning regulations in housing policies, in order to also enforce residential desegregation.10 A report on Canada also demonstrates the close interconnectedness between “race” and “class” with the consequences of “systemic” and “multidimensional” discrimination. It fijinds that “[w]orkers at the bottom of the economic hierarchy or at the margins of the labor force, where individuals from ‘visible minorities’ and aboriginal people are over-represented” are much more afffected by economic restructuring, privatiza-

autonomy and integration, based on the recognition of “difference”, in Joseph Marko, “Diversity Management: A neo-institutional approach”, 6 European Yearbook of Minority Issues (2006/2007). 9

Cf. Jo Ann Robinson, “Affirmative Action in the United States”, in Elaine Kennedy-Dubourdieu (ed.), Race and Inequality: World Perspectives on Affirmative Action (Ashgate, Aldershot, England, 2006), 11-42, at 41.

10

Cf. US Supreme Court, Parents Involved in Community Schools v. Seattle School District No. 1, 2007, 551 US 701.

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tion processes and the overall efffects of globalization.11 Moreover, only members of visible minorities and aboriginal people are afffected by racially-motivated discrimination, leading the author of the report to speak of “racialized communities” whose members are systematically discriminated against insofar as exclusionary practices are upheld by political institutions.12 Kennedy-Dubourdieu provides similar statistical evidence for the interconnectedness of “race” and “class” for Great Britain insofar as 77% of minority members live in 88% of the economically most disadvantaged municipalities.13 Finally, no other minority in Europe is more afffected by the structural interdependence of ethnicity and poverty than Roma and Sinti. Their fate is the best demonstration for a “vicious circle” through which poverty becomes perpetuated over generations and thereby “structurally” fijixed. This starts already in preschool and primary school enrollment. Roma children are not registered at all or, as the case D.H. v. Czech Republic before the European Court of Human Rights (ECtHR) in 2007—the tip of the iceberg—proves, they are enrolled in separate primary schools for mentally handicapped children in drastically overproportionate numbers. They are thereby discriminated against in their equal opportunities for educational attainment, as higher drop-out rates in primary and secondary education prove. The systemic and continued discrimination in educational attainment then leads to their exclusion from the formal labour market or, due to their lack of formal education, they have to accept the lowest paid jobs at the bottom of the hierarchy. Without adequate income they are, fijinally, not in a position to improve their housing situation and educational opportunities of their children, which closes the “vicious circle”. Thus discrimination and socioeconomic inequality have a systemic relationship. Each reflects and perpetuates the other. Discrimination based on ethnicity is thus “both the cause and efffect of socio-economic exclusion”.14 In conclusion, cultural stigmatization in the most drastic form of ethnic inferiorization, i.e. racism, exercised by the politically dominant (majority) population excludes members of allegdly “inferior” status both from social upward mobility and political participa11

Cf. Colleen Sheppard, “Challenging Systemic Racism in Canada”, in Kennedy-Dubourdieu, op. cit. note 9, 43-62, at 56.

12

Ibid., 43 and 55.

13

Cf. Elaine Kennedy-Dubourdieu, “From Periphery to Mainstream: Affirmative Action in

14

Cf. in particular Morag Goodwin, “Multidimensional exclusion: Viewing Romani margin-

Britain”, in Kennedy-Dubourdieu, op. cit. note 9, 77-102, at 85. alisation through the nexus of race and poverty”, in Schiek and Chege, op. cit. note 6, 137-140.

The Thematic Commentary on Effective Participation

tion. This thereby further excludes their participation in decision-making processes on what is seen from the perspective of “culture” as “normal” or what is politically and legally institutionalized as the “norm” for social behaviour. This situation has already been identifijied as a “dilemma of diffference” by Martha Minow in her seminal study on the American legal system.15 Part III will now deal with the problem of how “efffective” anti-discrimination law can be against these identifijied patterns of not only individual, but also institutional or structural, discrimination in order to overcome the “dilemma of diffference”. Can individual litigation against discrimination afffecting members of minorities as victims of discrimination be an efffective approach? Hence, the analysis of standard setting by EU law and the protocols of the European Convention on Human Rights and Fundamental Freedoms (ECHR), as well as the development of the case-law of the ECtHR with regard to the violation of Article 14 ECHR shall help to draw a fijirst tentative conclusion in this respect. III.

From Anti-discrimination to “Full and Effective Equality”?

A.

Standard Setting by EEC/EC/EU Directives and ECJ Case-law

Regarding gender equality, the legal obligation for Member States to guarantee equal pay between the sexes was already been part of the European Economic Community (EEC)/EU primary law, initially created with the establishment of the EEC in 1958 through the Rome Treaties. The “equal pay” obligation, originally intended as an instrument to prevent distortions of market competition, i.e. to promote “negative” integration, has then been amended and expanded in line with the development of the “human rights and freedoms” jurisprudence of the European Court of Justice (ECJ) to incorporate equal treatment of men and women far beyond equal pay. Article 10 of the Treaty on the Functioning of the European Union (TFEU) according to the Lisbon Treaties now provides that the Council of the European Union (EU Council) may take action to combat discrimination based on sex, racial or ethnic origin, religion, belief, disability, age or sexual orientation. Originally introduced as Article 13 of the Treaty Establishing the European Community (TEC) with the Amsterdam Treaty in 1997, this general antidiscrimination provision had established the legal basis on which two important Directives were adopted in 2000, namely the “Race

15

Cf. Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Cornell University Press, Ithaca, NY, 1991).

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Directive” and the “Framework Equality Directive,”16 both of which include in Article 5 the possibility for Member States to maintain or adopt “positive action measures” to “ensure full equality in practice”. This new legal concept had also originally been introduced in primary law with Article 119 TEC by the Amsterdam Treaty and can be found now under Article 157 Paragraph 4 TFEU. However, with regard to the problematique of “structural discrimination” under consideration in this chapter, the question remains of what “full equality in practice”, as the overall goal of positive action, “means” and what sort of “specifijic measures” as part of the concept of positive action can then be justifijied in a judicial review procedure by the ECJ since they are, as follows from the structure of Article 157 TFEU, constructed as an “exception” from the “rule” of “equal treatment” between men and women. A closer look into legislative history can shed more light on the “understanding” of the meaning of the concept of “full equality in practice”, forecasting also the inroad taken by the jurisprudence of the ECJ in the 1990s. The text of the Directive on the implementation of the principle of equal treatment for men and women regarding access to employment, promotions and working conditions, adopted in 1976,17 is still within the framework of “negative” integration. However, as can be clearly drawn from the text, the “principle” of equal treatment is not merely programmatic without normative consequences. It is rather a legal obligation for Member States to abolish “any laws, regulations and administrative provisions contrary to the principle of equal treatment” (Article 3.2) and to declare null and void also “any provisions contrary to the principle of equal treament which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions” (Article 3.2(b)). This thereby confers also a “horizontal efffect”, i.e. a legally binding force on legal relations between private parties, to the equality principle. Even more striking in hindsight is the text of Article 2 Paragraph 4, which declares that “this Directive shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which afffect women’s opportunities”. In conclusion, the “principle of equal treatment” is no 16

Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L180/22, and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L303/16.

17

Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, OJ L039, 40.

The Thematic Commentary on Effective Participation

longer confijined to the meaning of “formal” equality before the law of any Member State, i.e. making discrimination of men or women by State authorities justiciable, but develops this principle further into a conceptualization of “efffective equality” by three additional steps: – prescribing a “horizontal efffect”, also making discrimination by private parties justiciable; – requiring State authorities to become active by abolishing all legal regulations with discriminatory efffect not only in State law, but also collective agreements and even “private” contracts; and – allowing for positive action to promote “equal opportunities”. This last point is further specifijied in a non-legally binding Council Recommendation of 13 December 1984 on the “promotion of positive action for women”,18 which can be seen as the “missing” textual link with regard to the concept of “structural discrimination”. The preamble already makes it clear that “formal” equality before the law is considered inefffijicient by declaring that “existing legal provisions on equal treatment, which are designed to affford rights to individuals, are inadeaquate for the elimination of all existing inequalities unless parallel action is taken […] to counteract the prejudicial efffects on women in employment which arise from social attitudes, behaviour and structures”, in particular as Recommendation 1(a) further outlines “structures, based on the idea of a traditional division of roles in society between men and women”. The demonstrative list of “possible actions” in Recommendation 4 then gives an overview of “aspects” to be taken into consideration: – “informing and increasing the awareness […] of the need to promote equality of opportunity for working women”; – “appropriate […] training, including the implementation of supporting measures”; – “recruitment and promotion of women in sectors and professions and at levels where they are underrepresented”; – “adapting working conditions”; and – “active participation by women in decision-making bodies, including those representing workers, employers and the self-employed”.

18

Council Recommendation 84/635/EEC of 13 December 1984 on the promotion of positive action for women, OJ L331, 34.

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In light of the fijindings of sociological research on “systemic” or “structural” discrimination elaborated in Part II, the developments in EU primary and secondary law lead to the following problem explication: – Firstly, the question is raised whether and by what means “structural factual inequality” could be distinguished from the concept of indirect discrimination. The example given in the Recommendation of the Council is the segregation of the labour market along gender lines, which has to be abolished and which is not a consequence of discrimination, but is rather caused by attitudes and “structures of society”, more specifijically “the traditional division of gender roles in society between men and women”. In conclusion, the text of the Recommendation seems to suggest that States can intervene through positive measures into economic and societal structures in order to attain equal opportunities for men and women independent of past discrimination. – Secondly, the question is raised whether equal opportunities have to be seen as opportunities for individual persons to guarantee fair conditions from the very beginning of any competitive process or as group-oriented equality of opportunities, i.e. resulting in a proportional share for groups in the outcome of distributive processes. Both of these concepts might serve as “legitimate public interests” and goals to be achieved by positive measures. Such measures have, nonetheless, to be justifijied in judicial review procedures since positive action is seen as exemption from the “rule” of “equal treatment” of men and women according to a systematic, i.e. contextual interpretation of Article 2 Paragraph 1 in combination with Paragraph 4 of Directive 76/207/EEC. – Thirdly, the question is raised of which type of positive action can “efffectively” serve those goals and who is entitled to make use of positive measures, as well as whether positive action is even a legal obligation. Again the text of Recommendation 84/635 EEC includes several hints in this regard. With information and awareness-raising, as well as training and supportive measures, two types of positive action are mentioned in the text. Moreover, the recruitment and promotion of women in positions where they are “underrepresented” already address a third type of positive action. This has become the battlefijield of litigation before the ECJ from the 1990s on, namely whether and which form of “quota systems” transgress the legal justifijication for positive measures as an “exemption” from the rule of “equal treatment” between men and women. These three questions make clear that diffferent positive action measures and analysis of them in light of philosophical, legal-dogmatic and sociological perspectives, as well as their interdependence, provide the analytical focus for the problem of

The Thematic Commentary on Effective Participation

the efffectivity of anti-discrimination regulations against “structural inequality” or “structural discrimination”. A closer look into the further development of secondary EU law on the principle of equal treatment and equal opportunities through the adoption of Directives19 with regard to the conceptualization of “discrimination” makes clear that uniform defijinitions are now applied for both “direct” and “indirect” discrimination as well as “positive action”: ‘direct discrimination’: where one person is treated less favourably on grounds of sex than another is, has been or would be, treated in a comparable situation; ‘indirect discrimination’: where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justifijied by a legitimate aim, and the means of achieving that aim or appropriate and necessary; [… and …] Member States may maintain or adopt measures within the meaning of Article 157(4) of the Treaty on the Functioning of the European Union with a view to ensuring full equality in practice between men and women in working life. 20

However, none of these defijinitions explicitly refers to the phenomenon of “structural discrimination” so it remains to be seen whether the concept of anti-discrimination, including positive action, is further developed in the case law of the ECJ to cover also the consequences of “structural discrimination”. Already the fijirst case brought before the ECJ, C-450/93 Kalanke v. Freie Hansestadt Bremen in 1995, however, dissappointed all those who had expected a change of the equality paradigm from formal to “substantive equality in practice” to be achieved by a quota system for the recruitment and promotion of women in the civil service. In the course of the proceedings before the Court GA Tesauro drew a categorical distinction between “equality of opportunities” and “equality of results” fijinally taken over by the judges in their reasoning. Following the “rule-exception” structure of then Article 141 TEC, the judges therefore concluded: 19

See also Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), OJ L204, 23 and Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity, OJ L180/1.

20

Quotations from Articles 3 and 5 of Directive 2010/41/EU.

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20

21

22

It thus permits national measures relating to access to employment, including promotion, which give a specifijic advantage to women with a view to improving their ability to compete on the labour market and to pursue a career on an equal footing with men. As the Council considered in the third recital in the preamble to Recommendation 84/635/EEC of 13 December 1984 on the promotion of positive action for women (OJ 1984 L 331, 34), ‘existing legal provisions on equal treatment, which are designed to affford rights to individuals, are inadequate for the elimination of all existing inequalities unless parallel action is taken by governments, both sides of industry and other bodies concerned, to counteract the prejudicial efffects on women in employment which arise from social attitudes, behaviour and structures.’ Nevertheless, as a derogation from an individual right laid down in the Directive, Article 2(4) must be interpreted strictly (see case 222/84, Johnston v. Chief Constable of the Royal Ulster Constabulary (1986) ECR 1651, Paragraph 36). National rules which guarantee women absolute and unconditional priority for appointment or promotion go beyond promoting equal opportunities and overstep the limits of the exception in Article 2(4) of the Directive.

With regard to the second “explicative” question raised above, the Court indeed narrowed down the concept of equal opportunities to “fairness” in the meaning of equal chances as the starting point for competition and applied this narrow meaning in the already mentioned rule-exception structure. This was heavily criticized in scholarly literature as a “soft” approach, which makes the concept of “substantive equality in practice” basically inefffective because information, awareness-raising, support and training will only slowly—if at all—change “social attitudes, behaviour and structure” in the wording of Recommendation 84/635/EEC, which had even been quoted by the ECJ, without, however, drawing any normative conclusions from its concept. But even the European Commission was obviously shocked by this judgement and rendered a “Communication from the Commission to the European Parliament and the Council on the interpretation of the judgement of the Court of Justice on 17 October 1995 in case C-450/93, Kalanke v. Freie Hansestadt Bremen”.21 The Commission, in its question “how to interpret Kalanke”, constructed the alter21

Cf. EU Commission, Communication from the Commission to the European Parliament and the Council on the interpretation of the judgments of the Court of Justice on 17 October 1995 in case C-450/93, Kalanke v. Freie Hansestadt Bremen, COM (96) 88 final, 27 March 1996.

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native that “either the Court dismissed the possibility of justifying any quota system, even one containing a safeguard clause which allows the particular circumstances of a case to be taken into account, or the Court restricted itself to the ‘rigid’ quotas provided for in the Bremen law and applied to Mr. Kalanke, that is in an automatic manner”. In conclusion, the Commission then argues that the ECJ has only condemned “rigid quotas”, giving women an “absolute”, i.e. “automatic” and “unconditional”, right to appointment and promotion so that Member States and employers are free to have recourse to all other forms of positive action, including “flexible quotas”. The response by the ECJ followed suit with case C-409/95, Marschall v. Land Nordrhein-Westfalen, in 1997. The law of the Land Nordrhein-Westfalen did prescribe a quota system for the appointment and promotion of women, with the distinction of including a saving clause, however. The Court thus found the provisions of the Land law in conformity with EU law.22 Of particular interest with regard to the concept of “structural discrimination” is, however, the Court’s renewed reference to Recommendation 84/635/EEC. This gives it, in contrast to Kalanke, a time normative force as an instrument for the interpretation of valid EU law and thereby reconceptualizing the meaning of “equal opportunities”, as can be seen from the text of the reasoning: 29

22

As the Land and several governments have pointed out, it appears that even where male and female candidates are equally qualifijied, male candidates tend to be promoted in preference to female candidates particularly because of prejudices and stereotypes concerning the role and capacities of women in working life and the fear, for example, that women will interrupt their careers more frequently, that owing to household and family duties they will be less flexible in their working hours, or that they will be absent from work more frequently because of pregnancy, childbirth and breastfeeding.

The judges argued at Paragraph 33 of the judgement: “Unlike the rules at issue in Kalanke, a national rule which, as in the case in point in the main proceedings, contains a saving clause does not exceed those limits if, in each individual case, it provides for male candidates who are equally as qualified as the female candidates a guarantee that the candidatures will be the subject of an objective assessment which will take account of all criteria specific to the individual candidates and will override the priority accorded to female candidates where one or more of those criteria tilts the balance in favour of the male candidate.”

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For these reasons, the mere fact that a male candidate and a female candidate are equally qualifijied does not mean that they have the same chances. It follows that a national rule in terms of which, subject to the application of the saving clause, female candidates for promotion who are equally as qualifijied as the male candidates are to be treated preferentially in sectors where they are underrepresented may fall within the scope of Article 2(4) if such a rule may counteract the prejudicial efffects on female candidates of the attitudes and behaviour described above and thus reduce actual instances of inequality which may exist in the real world.

In conclusion, this judgement clarifijies that the lack of equal opportunities need not necessarily be based on past direct or even indirect discrimination, so that positive action including flexible quotas are a legitimate instrument for both State authorities and private parties to fijight against “structural” factual inequalities. Secondly, the reasoning at Paragraph 30 also conveys that the concept of equality of opportunities cannot be narrowed down to “fair chances” for individuals as the starting point for competition as a “strictly individualistic liberal” ideological premise might suppose since equal qualifijication is defijinitely declared to not be sufffijicient for equal chances. Hence, specifijic measures are necessary to achieve “equal opportunities of result” as can be seen also from the term and indicator “underrepresentation” and accordingly the reference to the sociological and legal category of gender—and thereby what I have called group-orientation somewhere else—as part of the concept of “full equality in fact” according to Article 2(4). The cases C-158/97, Badeck, and C-407/98, Abrahamsson, both in 2000, confijirm this interpretation. The ECJ, in the Badeck case, even speaks of a “flexible result quota” (at Paragraph 28, emphasis added). Until today, however, neither primary nor secondary EU law prescribe a “positive duty” to take positive measures which must—by defijinition—be group-oriented, i.e. special rights, insofar as they target members of certain groups or categories such as gender and “race”. This was also true for the ECHR until recently. With the case Oršuš v. Croatia, handed down by the Grand Chamber of the ECtHR in 2010, this might have changed. Due to the fact that a special provision for the protection of (ethnic or national) minorities had been proposed, but not agreed upon, with the adoption of the ECHR in 1950, the anti-discrimination provision of Article 14 ECHR with its reference to “national minorities” as one of the grounds of discrimination remained a “substitute” until the very day. Its “weak” protection stems from two interdependent causes. First, Article 14 has always been considered by the Court as an “accessory” provision requiring fijirst a violation of one of the “substantive” rights

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and freedoms. Finding, however, a violation of rights and freedoms, such as the right to privacy, freedom of religion or freedom of assembly, “indirectly” covering also the necessary preservation of minorities’ identity formation, the majority of judges very often abstained from dealing with the “additional” claim of discrimination. Secondly, anti-discrimination, like the other rights and freedoms of the ECHR, have been, sensu strictu, seen as “individual rights” to be guaranteed so that the grouporiented dimension was usually ignored. Hence, the ECtHR had indeed a long way to go to take over the concept of indirect discrimination, let alone of positive action. B.

The Case Law of the ECtHR

Despite the legislative history and the long standing practice of the Court, it is, of course, no accident that the line of ECtHR jurisprudence to be sketched out here. This enables analysis of the distinctions and thus various steps in terms of “rules” and legal obligations following from the equality principle in light of the overall problematique of the interdependence of “full and efffective equality” and “efffective participation” is framed by the “minority protection” context. The fijirst landmark case was handed down rather early, namely the so-called “Belgian linguistic case” of 23 July 1968. It is worth quoting the reasoning of the judges in this case in greater length since they had to frame the “understanding” of the meaning of “equality” and “discrimination” at that time in a rather principled way due to the diffferent terminology used in both the English and French authentic texts. I. B. 10. [...] In spite of the very general wording of the French version (‘sans distinction aucune’), Article 14 (art. 14) does not forbid every diffference in treatment in the exercise of rights recognized. This version must be read in the light of the more restrictive text of the English version (‘without discrimination’). In addition, and in particular, one would reach absurd results were one to give Article 14 (art.14) an interpretation as wide as that which the French version seems to imply. One would, in efffect, be led to judge as contrary to the Convention every one of the many legal or administrative provisions which do not secure to everyone complete equality of treatment in the enjoyment of the rights and freedoms recognized. The competent national authorities are frequently confronted with situations and problems which, on account of diffferences inherent therein, call for diffferent legal solutions; moreover certain legal inequalities tend to correct factual inequalities. The extensive interpretation mentioned above cannot consequently be accepted.

And the reasoning goes on:

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Chapter Five – Joseph Marko It is important, then, to look for the criteria which enable a determination to be made as to whether or not a given diffference in treatment, concerning of course the exercise of one of the rights and freedoms set forth, contravenes Article 14 (art. 14). On this question the Court, following the principles which may be extracted from the legal practice of a large number of democratic States, holds that the principle of equality of treatment is violated if the distinction has no objective and reasonable justifijication. The existence of such a justifijication must be assessed in relation to the aim and efffects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A diffference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 (art. 14) is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.

In conclusion, the reasoning in this case determines not only the legal “structure” of judicial review to be exercised by the ECtHR, but also the “conceptualization” of the equality principle beyond the narrow understanding of an “individual right” against discrimination by State authorities, i.e. “formal” equality. Firstly, to declare any distinction made by national authorities a violation of Article 14 must lead to “absurd results” so that there is no “absolute prohibition” to make distinctions. However, an “absolute prohibition” of discrimination is also “unreasonable”. “Discrimination” by making distinctions in rule-making or rule application require an “objective and reasonable justifijication”, based on an “aims-efffects” assessment, which is further specifijied as a “proportionality test”. But how “strict” should a supranational court exercise such a proportionality test? Here the Court develops a doctrine that is called the “margin of appreciation”. And it is precisely in this margin of appreciation where the Court grants—on a case-by-case basis—very wide leeway so that an observer might ask ‘what makes the diffference between an “arbitrary” and “reasonable” distinction?’ If, on the other hand, the Court exercises—in the terminology of the US Supreme Court—“strict scrutiny”, almost every proportionality test will end with fijinding a violation of the ECHR. Secondly, the overall “meaning” of anti-discrimination is then drawn from the “practice of a large number of democratic states”, namely the principle of “equality of treatment”. However, equality of treatment is not—by defijinition—reduced to the rule that all State authorities have to treat all persons equally in the “meaning” of “pure” formal equality. There are not only “situations and problems” which “call for diffferent legal situations”, but “certain legal inequalities tend to correct factual inequalities” (emphasis added). Consequently, the judges hereby establish a legal obligation for all State authorities to diffferentiate on the basis of the determination of the “factual situation”, which I henceforth call the “duty

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to diffferentiate”. By pointing to the fact that “legal inequalities”, i.e. “discrimination”, might “correct factual inequalities“, they moreover open the imagination for the conceptualization of what later and under EU law is then called “efffective equality in fact” to be achieved by “positive action”. However, only thirty years later these doctrines were applied for the fijirst time to the factual situations at hand. In the case Sidiropoulos v. Greece in 1999,23 the ECtHR found a violation of Article 11 ECHR in combination with Article 14 since the Greek courts had refused to register an association called “Home of Macedonian Civilisation” with the argument that such an act endangers Greece’s national identity and security. The ECtHR, however, requiring “convincing and compelling reasons” for justifijication and thereby applying “strict scrutiny”, rejected the Greek government’s line of defence and took the “factual context” of the case seriously and developed also a “group-oriented perspective”: 44

[...] the aims of the association [...] were exclusively to preserve and develop the traditions and folk culture of the Florina region […]. Such aims appear to the Court to be perfectly clear and legitimate; the inhabitants of a region in a country are entitled to form associations in order to promote the region´s special characteristics, for historical as well as economic reasons. Even supposing that the founders of an association like the one in the instant case assert a minority consciousness [...] allow them to form associations to protect their cultural and spiritual heritage.

In the case Thlimmenos v. Greece in 2000,24 the ECtHR again applies the “duty to differentiate” with regard to the factual situation of the case at hand since the Greek courts had not diffferentiated between the reasons for criminal conviction when denying Mr. Thlimmenos access to the post of chartered accountant. The ECtHR reasoned at Paragraph 42 that “in this context the Court notes that the applicant is a member of the Jehovas’ Witnesses, a religious group committed to pacifijism” so that his criminal conviction for disobeying because of his religious beliefs had not been properly taken into consideration. Unlike other commentators who praise this judgement as the fijirst case of “indirect discrimination” handed down by the ECtHR, I do not think that the “structure” of this case can be compared with the defijinitions of indirect discrimination adopted in the same year in the two EU-Directives outlined above. The Thlimmenos case concerns the discrimination of an individual 23

ECtHR, Sidiropoulos and Others v. Greece, Appl. No. 26695/95, 10 July 1998.

24

ECtHR, Thlimmenos v. Greece, Appl. No. 34369/97, 6 April 2000.

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by the factual exclusion of access to a profession because the Greek courts had not taken “the context of the factual diffference”, i.e. his belonging to a religious group, into consideration and thereby violated the “duty to diffferentiate” following from Article 14. “Indirect discrimination”, however, concerns a factual, group-related effect of allegedly “neutral” provisions, which goes beyond “factual contextualization” in a single case. Nevertheless, in the case Chapman v. the UK in 2001,25 the ECtHR—with the “duty to protect”—developed a new doctrine that had implicitly been addressed already in the Sidiropoulos case. A general “duty to protect” had already been established in Doctors for the Right to Life v. Austria in 1988, arguing that Article 1 ECHR requires an “efffective guarantee” to make use of liberal human rights, such as freedom of assembly. “In a democracy”, the Court argued in Paragraph 32, “the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate”, after Austrian authorities had in advance prohibited a demonstration for fear of counter-demonstrations. In Chapman, the Court develops a “special duty to protect”: 93

[…] The Court observes that there may be said to be an emerging international consensus amongst the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle (see […] in particular the [FCNM]), not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community.

Applying this doctrine to the factual context of the case, Chapman continues: 96

[…] the vulnerable position of Gypsies as a minority means that some special consideration should be given to their needs and their diffferent lifestyles both in the regulatory planning framework and in reaching decisions in particular cases […]. To this extent there is thus a positive obligation imposed on Contracting States by virtue of Article 8 to facilitate the Gypsy way of life (emphasis added).

However, this “positive” duty to protect cannot yet be called a duty to take “positive measures” strictu sensu. The duty to protect in this case is still restricted to the “duty to diffferentiate” in dealings of State authorities, i.e. policy-making through legislation or implementing acts, and thereby to take the factual context of a person as 25

ECtHR, Chapman v. UK, Appl. No. 27238/95, 18 January 2001.

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member of a disadvantaged group into consideration or even the efffects for entire groups in the meaning of the defijinitions of “indirect discrimination” under EU law. Only with the cases Hugh Jordan v. UK in 2001,26 concerning the statistically disproportionate deaths of Catholics in Northern Ireland, and Nachova v. Bulgaria in 2004,27 concerning the death of two Roma who had been killed by police when trying to escape conscription, the ECtHR takes over all the other elements of the concept of “indirect discrimination.” Thus, the Court argues in Hugh Jordan at Paragraph 154: “Where a general policy or measure has disproportianetly prejudicial efffects on a particular group, it is not excluded that this may be considered discriminatory notwithstanding that it is not specifijically aimed or directed against that group” (emphasis added). Whereas the Court, however, denied statistical data as “evidence” in that case, the Court made the last step in the development of the concept of “indirect discrimination” in the Nachova case by shifting the burden of proof to the respondent government. It is only with the cases Stec v. UK in 2006,28 and D.H. and others v. Czech Republic in 2007,29 that the ECtHR takes up again the “broad” conceptualization of equality that it had developed in the Belgian linguistics case. At Paragraph 51 the Court argues in the Stec case with regard to gender equality that “Article 14 does not prohibit a Member State from treating groups diffferently in order to correct ‘factual inequalities’ between them; indeed in certain circumstances a failure to attempt to correct inequality through diffferent treatment may in itself give rise to a breach of the article”. This conceptualization of the meaning of the principle of equality, is— in comparison to the Belgian linguistics case—remarkable in two aspects. Firstly, the phrase “treating groups diffferently” gives up the strictly individualistic liberal bias that, “by nature”, only individuals can have rights. Secondly, the violation of the rule of “equal treatment”, i.e. “discrimination”, in order to correct factual inequalities may not only be justifijied, but goes a decisive step further. Also the “failure to correct” factual inequalities may lead to a violation of Article 14. This already comes very close to a “positive duty”, not only to protect, but to take “special” positive measures for minorities in a broad sense, not only including “groups” in the sociological sense in a minority position. In D.H. v. Czech Republic the Czech government had, regarding institutional segregation in the primary educational system afffecting Roma Children dispropor26

ECtHR, Hugh Jordan v. UK, Appl. No. 24746/94, 4 May 2001.

27

ECtHR, Nachova v. Bulgaria, Appl. No. 43577/98 and No. 43579/98, 26 February 2004.

28

ECtHR, Stec and others v. UK, Appl. No. 65791/01 and 65900/98, 26 February 2004.

29

ECtHR, D.H. and others v. Czech Republic, Appl. No. 57325/00, 13 November 2007.

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tionately, argued that “positive obligations” under Article 14 of the Convention could not be construed as an obligation to take afffijirmative action so as to “actively compensate for all the disabilities which diffferent sections of the population sufffered from” (Paragraph 156). The Court, however, argued that with regard to diffference in treatment based on race, colour or ethnic origin, the standard of “objective and reasonable justifijication must be interpreted as strictly as possible” and found that segregation of Roma by enrolling them into special schools for mentally handicapped children was—in efffect—not afffijirmative action, but made the case of discrimination even worse. Finally, with the case Oršuš v. Croatia in 2010,30 the ECtHR develops and applies a fully-fledged doctrine of a “positive duty” to take “special positive measures” on behalf of minorities. As for the facts of the case, again Roma children had been enrolled in “special classes” in primary schools as an intended means of “positive action”. Distinguishing the case from D.H. v. Czech Republic, the Court argued that “temporary placement of children in a separate class on the grounds that they lack an adequate command of the language, is not, as such, automatically contrary to Article 14 [...]. However, when such a measure disproportionately or even, as in the present case, exclusively, afffects members of a specifijic ethnic group, then appropriate safeguards have to be put in place” (Paragraph 157). Based on this fijinding, the Court develops and applies the doctrine of a positive duty to take special positive measures: 165

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[...] the State in addition had the obligation to take appropriate positive measures to assist the applicant in acquiring the necessary language skills in the shortest time possible, notably by means of special language lessons, so that they could be quickly integrated into mixed classes (emphasis added). [...] such a high drop-out rate [....] called for the implementation of positive measures in order, inter alia, to raise awareness of the importance of education among the Roma population and to assist the applicants with any difffijiculties they encountered in following the school curriculum. Therefore, some additional steps were needed in order to address these problems, such as active and structured involvement on the part of the relevant social service (emphasis added).

ECtHR, Oršuš and Others v. Croatia, Appl. No. 15766/03, 16 March 2010.

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If this judgement does not remain an isolated case,31 as has been with the Belgian linguistics case for thirty years, then this fijinal step indeed reframes the entire understanding of the equality principle. The doctrine of a “positive duty” not only “to protect”, but also to “take appropriate”, i.e. “special”, measures in the form of goods or services to be provided by the State for members of certain groups, giving beyond a doubt the “principle of equality” a group dimension, fijinally overcomes the old dichotomy of “formal” versus “substantive dichotomy” on the basis of the “ruleexception” structure. Thus the case law of the ECtHR now forms the spearhead of the development in this process of reframing the equality principle and sheds also new light on the 12th Protocol of the ECHR, adopted in 2010, which introduces in addition to Article 14(a) “general prohibition of discrimination” no longer restricted to the enjoyment of the Convention rights and freedoms. The cautious comment at Paragraph 16 of the Explanatory Report that the Protocol does not impose any obligation on Member States to adopt “measures providing for specifijic advantages in order to promote equality” must be seen in diffferent light now. There is indeed no “positive duty to promote equality” by all means, but there is now a “positive duty” to take special measures on behalf of vulnerable groups or minorities in the given context of the respective Member State. Having not taken such measures might amount to discrimination in the meaning of Article 14 or Article 1 of the 12th Protocol, so that in any case, with regard to the “margin of appreciation” granted by the ECtHR, the burden of proof to not have discriminated by inaction should swing to the governments. Insofar as the ECtHR outlined in the Oršuš case and quoted above, the link between “full equality” and “efffective participation” also becomes much stronger when State authorities have to not only provide information and services, but also “raise awareness” and “promote” participation. IV.

Conclusions

Critics of afffijirmative action not only argue that it constitutes “reverse discrimination”, since such measures are not addressing the “real” victims of past discrimination, but it further confers unjust privileges to those persons of groups who are the benefijiciaries of afffijirmative action not having been discriminated against themselves. Secondly, critics also argue that afffijirmative action is simply not efffective to 31

In contrast, in the recent case Horvath and Kiss v. Hungary, Appl. No. 11146/11, 29 January 2013, Hungary was found guilty of “indirect discrimination“ since the assessment test for enrolling Roma children into schools for mentally handicapped children had not been sensitive enough for the special needs of Roma children.

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overcome the burdens of past discrimination. Hence, the second line of criticism, in particular in the US, denies that there is any “causal efffect” in remedying past discrimination with afffijirmative action. Considering this, how “efffective” are “special positive measures” in tackling “structural discrimination” as the thesis of this article asserts? In contrast to the criticism against afffijirmative action in the US, an empirical study on the “lingering efffects” of past discrimination proves that 70% of African American pupils attending pre-school and primary school institutions still had to attend de facto racially segregated schools in the school year 1998/99.32 Other empirical studies demonstrate what happens when afffijirmative action is abolished, as was the case after the decision of the US Court of Appeals for the 5th Circuit in Texas v. Hopwood in 1996 and a referendum in California in 1996. One year after the abolishment of afffijirmative action in California the rate of admission of African Americans at UC Berkeley dropped from 49.6% in 1997 to 20.3% in 1998 despite of the fact that there had actually been more African American candidates, not less, leading the author to conclude that the abolishment of afffijirmative action “appears to be very harmful for minorities”.33 However, the myth of a “color-blind society” that does not require afffijirmative action is also deconstructed from a diffferent perspective. Since Americans of Asian origin made up 4% of California’s resident population in 2000, but represented 5.9% of all college and university students, they were no longer recognized as a “minority” and thus excluded from afffijirmative action programs.34 On the one hand, the author of the study agrees with critics of afffijirmative action that only with the US Supreme Court’s Bakke decision Asian Americans had become “ethnicised”. On the other hand, she criticizes the stereotype that their educational success can be explained by their “industriousness” since they do not form a uniform cultural “group” and still face “structural barriers.” Despite a larger number of students and graduates, they remain underrepresented in important higher positions such as in Congress, CEO positions of enterprises and at universities. Hence, she comes to the conclusion that 32

Cf. Clark D. Cunningham, Glenn C. Loury and John David Skrenny, “Passing Strict Scrutiny: Using Social Science to Design Affirmative Action Programs”, in 90 Georgetown Law Journal (2002), 835-882, at 835.

33

Cf. Ronald Caldwell Jr., “The Erosion of Affirmative Action and Its Consequences for the Black-White Educational Attainment Gap”, in 57(4) University of Kansas Law Review (2009), 813-849, at 813.

34

Cf. Sharon S. Lee, “The De-minoritization of Asian Americans”, in 15(1) Asian American Law Journal (2008), 129-152, at 129.

The Thematic Commentary on Effective Participation

the social status of being a minority does not depend on representativeness in terms of numbers, but on access to decision-making processes and power. Very similar observations can be made in the European context with regard to gender equality and the “glass ceiling” efffect of positive measures for women. The adoption and implementation of a “flexible result quota” in Austria’s civil service two decades ago has helped to reduce traditional disadvantages in academic careers of women. However, the “glass ceiling” still remains, in particular in disciplines traditionally dominated by men, such as natural sciences. Thus, the report for the Austrian Ministry for Women and Civil Service addresses the problem that despite the implementation of quotas, Austrian educational policy has not been very succesful in abolishing gender-stereotyped decisions in the choice of education and professions.35 In addition, there is another problem becoming more and more urgent for Austria’s integration policies with regard to migrants. In 2009, the share of foreign students at Austrian universities already reached 19% in contrast to Germany with 12% or France with 10%.36 Moreover, 17% of immigrants in Austria are college or university graduates. However, in comparison with other Organization for Economic Co-operation and Development (OECD) countries, they are three times more often employed and paid below their educational attainment.37 Hence, headlines in Austrian newspapers already state: “Academics flee Austria […]. Only one out of fijive graduates from the non-EU space aspires for a job in Austria”.38 This brings me to the end. Rainer Hofmann, as President and member of the Advisory Committee on the FCNM, has successfully fought in the past against the restrictive approach to close the personal scope of application of the FCNM to “citizens” and “national minorities” recognized by the governments in the ratifijication process by their declarations or even reservations. It became generally acknowledged by the Members of the ACFC, but also the Council of Europe’s Committee of Ministers (CM), that Article 3 FCNM provides a guarantee for every individual to de35

Cf. Bundesministerium für Frauen und Öffentlichen Dienst. Bericht betreffend den Abbau von Benachteiligungen der Frauen (Bundesministerin für Frauen und Öffentlichen Dienst im Bundeskanzleramt Österreich, Wien, 2011), 60.

36

Cf. Statistik Austria/Kommission für Migrations- und Integrationsforschung der Österreichischen Akademie der Wissenschaften, Migration & Integration, Zahlen.daten.indikatoren 2012 (Bundesanstalt Statistik Österreich, Wien, 2012), 46-7.

37

Cf. European Commission. Commission Staff Working Document: Assessment of the 2012 national reform programme and stability programme for AUSTRIA (European Commission Publishing, Brussels, 2012), 18.

38

Cf. Die Presse, 16 August 2012, 1.

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clare herself a member of a minority regardless of the respective government’s legal position and, moreover, that the provisions of the FCNM are also applicable to members of new minorities as long as the text of the FCNM provision, as is for instance the case in Article 11 with the phrase “traditionally inhabited”, does not indicate otherwise. I think that it is high time to recognize the interdependence of “full and efffective equality” and “efffective participation” and that socio-economic “structural discrimination” and “ethnic inferiorization” mutually reinforce each other. As was outlined in this Chapter in Part III above, socio-economic disadvantages and the inferiorization of both old and new minorities can, however, be tackled under EU law through positive action. The latest development of the jurisprudence of the ECtHR gives evidence that there is even a “positive duty” to take “special positive measures” against “indirect discrimination” and “institutional racism”. However, there is also enough evidence that “positive measures” cannot, in the language of the ECJ, change “attitudes, behaviour and structures” overnight. Nor can this be achieved by litigation through individual court cases or even monitoring through international bodies. Dismantling the barriers of “structural discrimination” and “institutional racism” requires a strategic policy approach based on the recognition of the intimate link between “full and efffective equality” and “political participation” to trigger the necessary institutional reforms for social change. The elaboration and adoption of another Thematic Commentary on Article 4 by the ACFC could be a helpful step in this direction.

Chapter Six Addressing Contemporary Stalemate in the Advancement of Minority Rights: Commentary on Language Rights of Persons Belonging to National Minorities Francesco Palermo I.

Introduction

Language rights are at the same time the most basic and the most articulated rights of persons belonging to national minorities. They are basic, because the use of language is one of the fijirst and most elementary claims of persons belonging to minorities, who to a large extent identify along linguistic lines. But they are also complex, because their implementation poses extraordinary practical and theoretical difffijiculties—just to mention one: language rights are individual rights (groups do not speak), but with an obvious and dominant group dimension, thus going to the heart of one of the most debated theoretical controversies on the very nature of minority rights.1 Language rights are also—and increasingly so—a governance issue. Tensions arising around the linguistic rights of persons belonging to minorities are countless, including in times of peace, and have the potential to easily escalate into real conflicts.2 In addition, new challenges are posed to the very functioning of ever 1

Rainer Hofmann, “Minority Rights: Individual or Group Rights? A Comparative View on European Legal Systems”, 40 German Yearbook of International Law (1998), 356-382; Anastasia Spiliopoulou Åkermark, Justification of Minority Protection in International Law (Kluwer, London/The Hague/Boston, 1996); Rainer Hofmann, “Minorities Addendum 1995”, in Peter Macalister-Smith (ed.), Encyclopedia of Public International Law (Elsevier Science B.V, Amsterdam, 1997), 420-424; Alan Rosas and Martin Scheinin, “Categories and beneficiaries of human rights”, in Raija Hanski and Markku Suksi (eds.), An Introduction to the International Protection of Human Rights: A Textbook (Åbo Academy, Åbo/Turku, 1999), 49-61.

2

John Packer and Guillaume Siemienski, “The Language of Equity: The Origin and Development of The Oslo Recommendations Regarding the Linguistic Rights of National

Tove H. Malloy and Ugo Caruso (eds.), Essays in Honour of Rainer Hofmann Copyright 2013 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-21441-5 pp. 121-140

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more complex societies by phenomena like immigration, which increase linguistic diversities within States.3 While all major international human rights instruments do address language rights, 4 they do so in a “piecemeal and reactive” way5 and quite paradoxically the only comprehensive international document in this regard (the European Charter for Regional or Minority Languages or EChRML) is not a human/minority rights instrument.6 In order to offfer guidance in managing the multifaceted aspects and implications of language rights, and partly to give consistency to the language-related provisions in the (legally or politically) binding texts, relevant international standard-setting bodies have extensively dealt with language rights of persons belonging to minorities.7 In this context, a Commentary on the language rights of Minorities”, 6 International Journal on Minority and Group Rights (1999), 329-350. 3

Robert Dunbar, “Minority Language Rights in International Law”, 50 International and Comparative Law Quarterly (2001), 90-120.

4

Take, for instance, the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). For a systematic overview see Fernand de Varennes, Language, Minorities and Human Rights (Martinus Nijhoff, Leiden, 1996).

5

Robert Dunbar, “European Traditional Linguistic Diversity and Human Rights: A Critical Assessment of International Instruments”, in Eduardo J. Ruiz Vieytez and Robert Dunbar (eds.), Human Rights and Diversity: New Challenges for Plural Societies (University of Deusto, Bilbao, 2007), 85-110, at 88.

6

Although it is in practice very close to being one. Not by chance, a recent and important Commentary on the EChRML, published by the Council of Europe (CoE) itself has the very telling title “Shaping Language Rights”. See Alba Nogueira López, Eduardo J. Ruiz Vieytez and Iñigo Urrutia Libarona (eds.), Shaping Language Rights: Commentary on the [EChRML] in light of the Committee of Expert’s evaluation (CoE Publishing, Strasbourg, 2012).

7

See, in particular, The Oslo Recommendations Regarding the Linguistic Rights of National Minorities, published by the OSCE High Commissioner on National Minorities (HCNM) in 1998, as well as the linguistic dimension of the High Commissioner’s other recommendations, such as The Hague Recommendations Regarding the Education Rights of National Minorities (1996). At the UN level, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992), as well as the Commentary of the Working Group on Minorities to the Declaration (2005), the Declaration on the Rights of Indigenous Peoples (2007) and relevant recommendations from the UN Forum on Minority Issues, in particular related to education and participation, are of particular importance.

The Thematic Commentary on Language Rights

persons belonging to national minorities under the Framework Convention for the Protection of National Minorities (hereinafter “Framework Convention” or FCNM) was absolutely needed and expected after the introduction of the practice of the Advisory Committee on the FCNM (hereinafter “Advisory Committee” or ACFC) to adopt thematic Commentaries.8 Just after the adoption of the second thematic Commentary on participation,9 the Advisory Committee, under the lead of Rainer Hofmann,10 decided to devote its third Thematic Commentary to language rights and eventually adopted the Commentary on “The Language Rights of Persons Belonging to National Minorities under the Framework Convention”11 (hereinafter “Commentary on Language”) on 24 May 2012, during the last plenary session of the Advisory Committee chaired by Rainer Hofmann. This chapter fijirst starts with an analysis of the current challenges for international minority rights instruments, arguing that they are facing increasing diffijiculties to respond to them and that Thematic Commentaries—which are more than mere compilations—are one of the most efffective ways to interpretatively adapt them to changed circumstances (Part II). Subsequently, the contents of the Commentary will be examined, describing its more relevant provisions and achievements, highlighting its main messages and pointing out the inclusive procedure followed for its adoption (Part III). Finally, the paper concludes by critically evaluat8

ACFC, Commentary on Education under the [FCNM], ACFC/25DOC(2006)002), dated 2 March 2006; and ACFC, Commentary on the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs, ACFC/31DOC(2008)001, adopted 27 February 2008.

9

Francesco Palermo, “The Dual Meaning of Participation: The Advisory Committee’s Commentary to Article 15 of the FCNM”, in 7 European Yearbook of Minority Issues (2007/2008), 409-424; Joseph Marko, “The [CoE FCNM] and the Advisory Committee’s Thematic Commentary on Effective Participation”, in Marc Weller (ed.), Political Participation of Minorities (Oxford University Press, Oxford, 2010), 222-255; and the chapter by Joseph Marko in this volume.

10

Rainer Hofmann returned to the Advisory Committee in June 2008, i.e. immediately after the adoption of the second thematic Commentary. He was elected First Vice President of the Committee and then President in 2010. The elaboration process of the Commentary developed entirely under his last mandate in the Advisory Committee (2008-2012). He was also the Chair of the Internal Working Group on the Elaboration of the Commentary.

11

ACFC, Thematic Commentary No. 3: The Language Rights of Persons Belonging to National Minorities under the Framework Convention, adopted on 24 May 2012, ACFC/44DOC(2012)001 rev, dated 5 July 2012.

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ing how much and to what extent the progressive interpretation of the Framework Convention is essential for keeping it a living instrument, trying to identify the next more pressing challenges for minority rights and their protection through the Framework Convention (Part IV). II.

The Quick Development of Minority Rights Instruments: Risk of Obsolescence, New Challenges and Responses

A.

The Trajectory of International Minority Rights’ Influence and its Reasons

Looking at how minority rights instruments have developed over the past two decades, and taking into account their implementation and practical impact,12 a clear trajectory can be identifijied. From the early 1990s onwards, international minority rights law rapidly evolved from a marginal domain into an extremely powerful conditionality tool in the course of just a few years. Then, it has gradually stabilized, working towards deepening the standards and making them more efffective. Finally, in more recent times, an overall fatigue seems to be emerging, and a sort of stepping

12

On this issue, the scholarly contribution by Rainer Hofmann is extraordinary. See, inter alia, Rainer Hofmann, “Review of the Monitoring Process of the [CoE FCNM]”, in 1 European Yearbook of Minority Issues 2001/2, 435-460; Rainer Hofmann, “Review of the Monitoring Process of the [CoE FCNM]”, in 2 European Yearbook of Minority Issues 2002/3, 401-433; Rainer Hofmann, “New Standards for Minority Issues in the [CoE] and the OSCE”, in Jørgen Kühl and Marc Weller (eds.), Minority Policy in Action: The Bonn–Copenhagen Declarations in a European Context 1955-2005 (Syddansk Universitet, Aabenraa, 2005), 239-277; Rainer Hofmann, “The [FCNM]: An Introduction”, in Marc Weller (ed.), The Rights of Minorities: A Commentary on the European Framework Convention for the Protection of National Minorities (Oxford Commentaries on International Law, Oxford University Press, Oxford, 2005), 1-24; Rainer Hofmann, “The Evolving Standards of Minority Rights Protection in Europe”, in Bertrand Fort and Peter Ryan (eds.), Human Rights and Ethnic, Linguistic and Religious Minorities (Asia-Europe Foundation Publishing, Singapore, 2006), 117-160; Rainer Hofmann, “Implementation of the FCNM: Substantive Challenges”, in Annelies Verstichel, et. al. (eds.), The [FCNM]: a Useful Pan-European Instrument? (Intersentia, Antwerpen, 2008), 159-185; Rainer Hofmann, “The Future of Minority Issues in the [CoE] and the [OSCE]”, in Marc Weller, Denika Blacklock and Katherine Nobbs (eds.), The Protection of Minorities in the Wider Europe (Palgrave Macmillan, London/New York, 2008), 171-205.

The Thematic Commentary on Language Rights

back is noticeable, linked to the difffijiculties in implementing some of the standards and to the emergence of more pressing issues on the international scene. The recent decrease of influence by international actors on minority protection especially in Europe, is due on one hand to natural developments and, to some extent, to the success of international instruments, especially the Framework Convention as implemented under the leadership of key people like Rainer Hofmann. On the other hand, however, such a reduction of influence is depending on a partly obsolete approach by the international instruments to some key issues, including language identities and integration of societies13 and in some way on the very concept of minorities underpinned in most documents. 1.

The 1990s: Development of International Minority Law and Conditionality

The eruption of ethnic conflicts throughout the former Communist bloc and elsewhere after 1989 took the international community by surprise. The almost exclusive attention to individual rights paid since the end of the Second World War in the international arena, which proved successful under the cold war regime, failed in addressing the ethnic turmoil that followed the end of that regime, asking for the recognition of a broader (including collective) dimension of minority rights. The mass violations of human and minority rights and even more the immediate threats for state security and integrity associated with the post-1989 revolutions pushed the international community to work quickly towards new and more efffective instruments aimed at balancing the individual human rights dimension with rights of minorities and groups bearing therefore an (albeit indirect) collective dimension. International law quickly acknowledged that minority rights are an issue of international concern and do not fall exclusively in the domain of the states. Against this background, a tremendous amount of (soft and hard) law was produced,14 aimed 13

Other such issues are the insufficient and somewhat misleading attention paid to territorial autonomy as a means to reduce conflict potential (see on this Francesco Palermo, “When the Lund Recommendations are Ignored: Effective Participation of National Minorities through Territorial Autonomy”, in 16(4) International Journal on Minority & Group Rights (2009), 653-663) and double standards in the interpretation and implementation of certain minority rights (see Kristin Henrard (ed.), Double Standards Pertaining to Minority Protection: a critical and multi-dimensional re-appraisal (Brill, Leiden et al., 2010).

14

At universal level, see the UN Permanent Working Group on Minorities (1992–A/HRC/ Sub.1/58/19) and the 1992 Declaration on the Rights of Persons Belonging to National or

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at directly or indirectly protecting minority rights, and by this means preserving

Ethnic, Religious and Linguistic Minorities (Resolution No. 47/135). In 1993, the General Assembly created the post of the High Commissioner on Human Rights, and in 2005 the then Commission on Human Rights (subsequently replaced by the Human Rights Council, within which in 2008 a Forum on Minority Issues was established–HRC Resolution no. 6/15 of 28 September 2007) tasked the High Commissioner to appoint an Independent Expert on Minority Issues (Resolution 2005/79). In Europe, first action was taken by the then Conference on Security and Cooperation in Europe (CSCE): in 1991, the CSCE Group of Experts on National Minorities in its Geneva Document stated that “issues concerning national minorities, as well as compliance with international obligations and commitments concerning the rights of persons belonging to them, are matters of legitimate international concern and consequently do not constitute exclusively an internal affair of the respective State”. In 1992 HCNM was established and tasked to intervene diplomatically in order to prevent minority-related conflicts. Also the CoE developed important tools aimed at addressing minority issues in particular: besides the EChRML (1992) and the FCNM (1995), an important role has been played also by the Commission for Democracy through Law (Venice Commission). Also the Central European Initiative’s (CEI) Instrument for the Protection of Minority Rights (1994) is worth mentioning. While at a later stage, also the EU has played a role in developing the law on minorities. It did so first by including respect for and protection of minorities in the political criteria for accession as of 1993 (so called Copenhagen Criteria–for a critical appraisal, defining the EU approach towards minorities as “a product for export”, see Bruno de Witte, “Politics vs. Law in the EU’s Approach to Ethnic Minorities”, 4 EUI Working Paper/Robert Schumann Center (2000). As of the Amsterdam Treaty (1997), the EU provides for a general legal base against discrimination including on race, ethnic origin and religion (now Art. 19 of the Treaty on the Functioning of the European Union). The Charter of Fundamental Rights of the EU provides for a long list of non-discrimination factors including colour of the skin, ethnic or social origin, language, religion, belonging to a national minority (Art. 21) and obliges the Union to “respect cultural, religious and linguistic diversity” (Art. 22). Finally, the Lisbon Treaty declared in Art. 2 TEU the “respect for human rights, including the rights of persons belonging to minorities”, as one of the values on which the Union is based. An important role has been played also by the Court of Justice of the EU, especially in determining that domestic measures protecting national minorities are to be considered a legitimate aim and as such do not necessarily conflict with the enjoyment of the traditional EU freedoms. See Rainer Hofmann, “National Minorities and European Community Law”, in Ineta Ziemele (ed.), 2 Baltic Yearbook of International Law (2002), 159-174.

The Thematic Commentary on Language Rights

states’ security.15 The efffect of these developments produced a phenomenon that can be defijined as the “internationalization of constitutional law and constitutionalization of international law”, especially with regard to minority issues.16 In fact, on the one hand, international law has developed a body of law which, while not entirely prescriptive and very rarely justiciable,17 has become specifijic, legally or politically binding and is monitored by several bodies including some quasi-judicial ones, such as the Committees of Experts under the FCNM and the EChRML, which developed a “soft jurisprudence”,18 including by establishing important practices such as monitoring visits.19 On the other hand, the increasingly binding nature of international law has had an enormous influence on constitutional transitions and constitutional developments in various countries, deeply conditioning the constitutional choices with regard to the protection of minority rights. This interplay between internationalization of constitutions and constitutionalization of international norms, combined with the link between minority protection and security, the political and fijinancial assistance for minority protection and the unique political climate in the 1990s, proved very efffective in overcoming the emergency phase and in quickly developing

15

On the link between minority issues and security see, with critical accents, Paul Roe, “Securitization and Minority Rights: Conditions of Desecuritization”, in 35(3) Security Dialogue (2004), 279-294 and Will Kymlicka, Multicultural Odysseys: Navigating the New International Politics of Diversity (Oxford University Press, Oxford, 2007).

16

Francesco Palermo, “The Protection of Minorities in International Law: Recent Developments and Trends”, in Les minorités: un défi pour les États. Actes du colloque international (22 et 23 mai 2011) (Académie Royale de Belgique, Bruxelles, 2012), 165-185.

17

Important achievements have been reached however by some international courts in developing a consistent body of jurisprudence on relevant minority issues. This goes above all for the European Court of Human Rights (ECtHR). See, inter alia, Geoff Gilbert, “The Burgeoning Minority Rights Jurisprudence of the [ECtHR]”, in 24(3) Human Rights Quarterly (2002), 736-780, and Roberta Medda-Windischer, “The [ECtHR] and Minority Rights”, in 25(3) Journal of European Integration (2003), 249-271.

18

For the term “soft jurisprudence” see John Packer, “Situating the Framework Convention in a Wider Context: Achievements and Challenges”, in CoE (ed.), Filling the Frame. Five years of Monitoring the [FCNM]. Proceedings of the Conference held in Strasbourg, 30-31 October 2003 (CoE Publishing, Strasbourg, 2004), 43-51, at 45.

19

Rainer Hofmann has been vital in developing the practice of country visits under his first presidency in the early years of the activity of the Advisory Committee.

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an impressive body of international and domestic law on the protection of minority rights. 2.

Consolidation in the 2000s

The success of the measures taken during the 1990s by the international community brought (overall) peace throughout the wider European continent. But in some way, in the subsequent era of consolidation, the international instruments fell victim of their own success: after proving efffective in order to stop violence and to improve the international and domestic legal guarantees for minority rights to an extraordinary degree, they showed less efffectiveness in coping with the more subtle challenges of efffective implementation of minority rights. This was primarily due to changed external circumstances. One should consider, in particular, the overall and quick re-emergence of the role of States on the International and European scene, linked to factors such as the terrorist threat after the attacks of 11 September 2001 and the subsequent bombings in Europe and elsewhere, as well as, more recently, to the global fijinancial crisis. The security issue was channelled back in the hands of States and more generally the overall environment for minority groups became much less favourable, as they were increasingly seen as potentially disloyal groups and thus as a permanent potential threat for national security. Moreover, overall attention shifted from autochthonous national minorities to the new security priorities, including in particular the “new” minorities with immigrant backgrounds and religious diversity. The States became much less inclined to leave a broad leverage to international organizations in dealing with minority issues. Moreover, the recent fijinancial crisis also shifted a considerable amount of power back in the hands of States, with several countries adopting emergency economic measures. As a consequence, minorities were negatively afffected in a twofold way: on the one hand, because economic crises always hit fijirst the most vulnerable segments of the population, among which are often persons belonging to minorities; on the other hand, because the growth of public defijicits and the following dramatic cuts in public expenditure severely involved also the funds dedicated to efffectively implement minority rights. The combined outcome of these phenomena between 2000 and 2010 was the emergence of a new “statism”, which considerably reduced the role of the international community in this fijield, brought the minority issue primarily back into the domestic arena, limited the impact of conditionality and put the minority question overall much lower on the priority scale of both States and international community as compared to the previous decade. In the last eight years no new country

The Thematic Commentary on Language Rights

ratifijied the Framework Convention,20 very few ratifijied the EChRML21 and it seems unlikely that new ratifijications will come in the near future. As a consequence to this approach, the monitoring bodies under both the Framework Convention and the EChRML fijind themselves in the difffijicult situation of highlighting defijicits and shortcomings in the implementation of the respective treaty for the third time in a row,22 without having at their disposal instruments to enforce efffective measures to address the most problematic situations. 3.

Current Challenges and (Limited) Responses

Parallel to this phenomenon, a sort of “monitoring fatigue” is noticeable. Not only have times changed in international relations since the 1990s, but efffective implementation of minority rights proved more complex and difffijicult than drafting valuable legislation: some structural problems have not been resolved, States do not put the necessary efffort in implementing minority rights, funds are cut and full and effective implementation of minority rights becomes more difffijicult rather than easier. Despite increasing attention by recent documents to a more balanced approach, not only to rights but also to the duties of minorities23 and to the overall balance of soci20

The latest ratification of the Framework Convention to date was Georgia in 2005.

21

Bosnia and Herzegovina ratified the EChRML in 2010, due to strong international pressure. Poland ratified it in 2009 after completing a rather uncontroversial but yet technically complex process (signature was done in 2003). Italy announced ratification of the EChRML in March 2012, although as “a mere formal reception of its contents”, since the country considers to have implemented its obligations by adopting a national minority law in 1999. Many countries never signed the EChRML and so far only 25 have ratified it. Even more interestingly, eight countries have signed it between 1992 and 2001 but not yet ratified it.

22

Both the Framework Convention and the EChRML are currently undergoing their third

23

One may think of some of the most recent documents underlining that, while in principle

monitoring cycle. international law clearly provides for rights for minorities and respective duties for States, the protection and safeguard of other fundamental principles such as social cohesion, good neighbourly relations, effective integration and participation in societies require that minority protection be a two-way process, in which both minorities and majorities have rights and duties. While these elements have clearly been present including in the documents dating back to the 1990s (one may think of the rather disappointing provision of Art. 21 FCNM, which highlights in the context of minorities a principle that would

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ety as a whole,24 as well as to more participatory drafting of important documents, 25 the rather obsolete approach of international instruments tailored to the situation of the 1990s calls for a contextual, dynamic and progressive interpretation in order to make the standards living instruments.26 One of the most sophisticated instruments for dynamic evolution and interpretation of the standards are the Advisory Committee’s Commentaries. Commentaries pursue diffferent goals. First, they take stock of the results of the Committee’s monitoring, presenting them in a systematic and comparative way: this helps avoid inconsistencies or even accusations of applying double standards in addressing issues in diffferent countries and diffferent contexts. Secondly, they offfer both theoretical and practical guidance to all actors involved in the protection of minority rights, such as national, regional and local administrations, NGOs, minority organizations have been considered as implicit with regard to majorities: that “nothing in the present Framework Convention shall be interpreted as implying any right to engage in any activity or perform any act contrary to the fundamental principles of international law and in particular of the sovereign equality, territorial integrity and political independence of States”), the more recent standards reflect a more balanced approach. One may think of the Bolzano/Bozen Recommendations on “National Minorities in Inter-State Relations” issued by the HCNM in 2008, where on the one hand the aspect of integration of societies comes to the fore (see Recommendation No. 7: “Integration can only be achieved if persons belonging to national minorities, in turn, participate in all aspects of public life and respect the rules and regulations of the country they reside in”) and on the other hand the limits of States’ action with regard to support for kin-minorities abroad are analyzed in the perspective of multilateral security. See further Francesco Palermo and Natalie Sabanadze (eds.), National Minorities in Inter-State Relations (Brill, Leiden/Boston, 2011). 24

See in particular HCNM, The Ljubljana Guidelines on the Integration of Diverse Societies, OSCE, dated November 2012.

25

See for instance the UN Recommendations drafted within the framework of the Forum on Minority Issues on “Minorities and the Right to Effective Political Participation” (2009) and on “Minorities and the Right to Education” (2008). See Ilona Klímová-Alexander, “Effective Participation of Minorities: United Nations standards and practice”, in Weller, op. cit. note 9, 286-307. Other extremely relevant examples are the second and the third thematic Commentaries of the ACFC, op. cit. note 8. On the overall link between civil society and the work of international organizations, as well as the development of international minority law, see special issue 18(2) International Journal on Minority and Group Rights (2011).

26

Rainer Hofmann, “Implementation of the FCNM: Substantive Challenges”, op. cit. note 12.

The Thematic Commentary on Language Rights

and academia. Third, they help the Framework Convention to really be a living instrument, adapting its interpretation to contemporary challenges. While they do not aim to create new law or doctrine, the Commentaries are more than just a mere compilation of the work of the Advisory Committee on one particular subject. By ratifying the FCNM, State Parties bind themselves to its principles, and these include the acceptance of the (non-binding) Opinions of the Advisory Committee; moreover, the Opinions of the Advisory Committee establish an acquis that becomes de facto binding to new State Parties, because they ratify the Convention aware of the interpretation given to it by the monitoring body. Not least, it must be noted that in a few cases the non-binding interpretations given by the Advisory Committee become normative because of their inclusion in decisions by national or international courts.27 Against this background, the Commentaries, like all other soft law mechanisms, try to [g]ive substance to the provisions in international law and to facilitate at the national level the practical implementation of the international commitments, so making it possible to fijind the appropriate balance between the legitimate concerns of the State and the majority on the one hand and the concerns and requirements of the minority on the other.28 27

See, for example, the ruling by the Romanian Constitutional Court on 9 April 2001, no. 112/2001, in which the Court directly applied Art. 10.2. FCNM, affirming that “the law of local public administration merely states and fixes the details of the enforcement of the provisions in Art. 10.2 of the [FCNM], which, according to Arts. 11.2 and 20.2 of the Constitution, may be directly enforced”. An example of direct reference to the Opinion of the Advisory Committee by the ECtHR is found in ECHR, Grand Chamber Decision No. 57325/00, D.H. and others v. Czech Republic, views of 13 November 2007, when the Court quoted an extensive paragraph of the Advisory Committee’s Opinion on the Czech Republic to construct its reasoning. For further on this see Francesco Palermo, “Domestic Enforcement and Direct Effect of the [FCNM]: On the Judicial Implementation of the (Soft?) Law of Integration”, in Verstichel, et al., op. cit. note 12, 187-214 and Rainer Hofmann, “Nationale Minderheiten und der Europäische Gerichtshof für Menschenrechte“, in Jürgen Bröhmer et. al. (eds.), Internationale Gemeinschaft und Menschenrechte: Festschrift für Georg Ress (Carl Heymanns, Köln, 2005), 1011-1026.

28

Asbjørn Eide, “The Oslo Recommendations Regarding the Linguistic Rights of National Minorities: An Overview”, 6(3) International Journal on Minority and Groups Rights (1999), 319-328, at 325.

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In pursuing these functions, the Commentaries are key instruments to keep the interpretation of the Framework Convention in line with the new challenges and to avoid it becoming over time less efffective as a human rights instrument. It can be said, in other words, that the Commentaries are fundamental instruments for the “maintenance” of the Framework Convention. They are a medicine against aging—if not obsolescence—of the Framework Convention in times of quick and challenging changes. III.

The Commentary on Language and its Main Goals

A.

Updating the Identity Paradigm

It is only against this background that the provisions of and the very philosophy underlying the Commentary on Language can be fully understood. Over time, subsequent Opinions29 of the Advisory Committee reflected the evolving situation in most State Parties: from an initial (and in many countries post-conflict) phase when the pressing priority was the adoption of legal safeguards for persons belonging to minorities in the enjoyment of their rights, to the more recent challenges. In more peaceful environments, where minority rights are largely established at least on paper, many States have turned their attention to issues such as societal integration and social cohesion. However in doing so, they have often (deliberately or involuntarily) reduced the factual scope of minority rights by, for example, increasingly demanding “loyalty” from minorities, placing additional requirements on the knowledge of State languages, promoting a national “leading” culture and putting emphasis on avoiding the development of parallel societies and segregation. The problem lays also, to a large extent, in the wrong perception of what minority rights are about. In fact, in the practice of States there is still a predominant perception of minority issues as something involving homogeneous groups that sometimes clash with other homogeneous groups, trying to look for solutions on how to accommodate groups’ demands by granting rights to individuals. Based on this assumption, international minority law also often aims at accommodating majority and minority homogeneous groups. To belong to a minority, in the prevailing perspective, is a sort of all-encompassing issue, and the divide between belonging or not belonging to a minority is supposed to be always clear for each and every person. However, such homogeneity, if it ever existed, is now far from mirroring re29

At the time of the adoption of the Commentary on Language some 75 Opinions had been adopted by the Advisory Committee.

The Thematic Commentary on Language Rights

ality, and minorities of whatever kind are now much less homogeneous than ever in the past: diversities are increasingly present within each group and the factors for diffferentiation are potentially countless. Migrants, people belonging to more than one culture, multilingualism, shifting identities, mobility and less compactness in social structures are all issues that are not, or at least not sufffijiciently, dealt with by national nor by international minority law, thus creating some confusion when implementing minority rights and allowing for political misuse (and sometimes abuse) of the legitimate aim to establish an integrated society, which often turns into a subtle limitation of minority rights.30 In its monitoring work, the Advisory Committee has come to the conclusion that the right balance between the protection of linguistic rights of persons belonging to minorities and the development of an integrated society can hardly be achieved if identities (both majority and minority identity) are portrayed (in law and in society) as something set in stone. This goes also for supposedly objective criteria such as language. Linguistic identity might well be clearly defijined for some, but for (many) others, especially for persons belonging to minorities, such identity might be shifting, complex, plural and nevertheless still be one of the main factors of their identity and identifijication.31 Language, like identity, is not static but evolves throughout a person’s life. Linguistic identities are often multiple, and their relations change depending on a number of factors, including societal ones such as hierarchy or diffferent prestige among languages or just their diffferent instrumental position in diffferent contexts.32 The full and efffective guarantee of the right to use one’s (minority) language(s) implies that instruments must allow free identifijication 30

Antoni Milian i Massana, Globalización y requisitos lingüisticos: una perspectiva jurídica. Supraestatualidad, libre circulación, immigración y requisitos lingüisticos (Atelier, Barcelona, 2008). See also Giovanni Poggeschi, I diritti linguistici. Un’analisi comparata (Carocci, Roma, 2010).

31

For a philosophical reading of (individual and collective) linguistic diversity see Philippe van Parijs, “Linguistic Diversity as Curse and as By-Product”, in Xabier Arzoz (ed.), Respecting Linguistic Diversity in the European Union (John Benjamins, Amsterdam/Philadelphia, 2008), 17-46.

32

Examples are countless. Issues of different social prestige are common, inter alia, with regard to the use of Romani language, which in practice is much less used even when the legal conditions are in place. As to circumstantial use of languages, even besides prestige one may think, for instance, of the very limited use of Hungarian in courts in Vojvodina, due to a number of issues that do not have to do with lack of prestige of the minority language.

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of persons through language, and abstain from constraining personal identities into rigid (and often hierarchical) language categories. Following the “multicultural” approach underpinned by the Framework Convention, the Commentary spells out the issue of multiple and contextual identities and even of hierarchical structures in societies in a way that allows focussing on the current challenges much more effectively, as if identities were seen as something permanent, immutable and static. Examples can be found in several paragraphs of the Commentary. Paragraph 18 directly addresses the issue of multiple afffijiliation,33 Paragraph 8 suggests that diffferent hierarchical relations among languages should be taken into account in drafting and implementing language-related provisions,34 Paragraph 13 makes explicit the consequences of multiple afffijiliations with regard to the scope of application of the Framework Convention35 and more generally the substantial provisions of the 33

Para. 18 Commentary on Language states: “a person might wish to identify herself or himself with several groups. The phenomenon of multiple affiliation is in fact quite common, due to mixed marriages, for instance, or cases of state succession. A person may also identify himself or herself in different ways for different purposes, depending on the relevance of identification for him or for her in a particular situation. The Advisory Committee considers that the principle of self-identification, as contained in Article 3 of the Framework Convention, also guarantees the possibility of multiple affiliation. This implies that, in principle, a person may claim linguistic rights with regard to several minority languages, as long as the relevant conditions, such as demand and/or traditional residence, contained in the respective articles of the Framework Convention are fulfilled.”

34

Para. 8 Commentary on Language states: “While states continue to play an essential role in defining the legal regime governing the use of languages, other entities are gaining momentum, such as local, regional or transnational bodies in which the functionality and prestige of languages are influenced by different actors. Unequal power relations between different groups of speakers may lead to social hierarchies that can also be reflected in language practices and political discourse on languages. This influences the way in which speakers of certain languages are perceived by others and, to some extent, perceive themselves. Language policies aiming at valuing linguistic resources at the individual and social level therefore also have to address the question of hierarchy in language and society, and the issue of unequal access to full participation in society.”

35

Para 13 Commentary on Language states: “Language is an essential component of individual and collective identity. For many persons belonging to national minorities, language is one of the main factors of their minority identity and identification. However, language, like identity, is not static but evolves throughout a person’s life. The full and effective guarantee of the right to use one’s (minority) language(s) implies that authori-

The Thematic Commentary on Language Rights

Commentary are inspired by a reading of language identities and rights that takes into account the developments these issues have faced in the course of the last two decades. B.

Old and New Challenges for Linguistic Rights

Against this background, the Commentary addresses all the main issues related to the enjoyment of linguistic rights that have emerged in the course of 15 years of monitoring. At the same time, it underlines the interlinks existing between language rights and all other rights laid down in the Convention,36 in the awareness that language rights are essential for the enjoyment of other rights, but also possible instruments for exclusion from the benefijit of such rights. For this reason the Commentary is structured in six main parts, reflecting the main interlinks between language rights and other rights provided for by the Convention: “Language Rights and Identities” (reflecting essentially Articles 3 and 5 FCNM), “Language Rights and Equality” (Articles 4 and 6 FCNM), “Language Rights and Media” (Article 9 FCNM), “Public and Private Use of Minority Languages” (Articles 10-11 FCNM), “Language Rights and Education” (Articles 12-14 FCNM) and “Language Rights and Participation” (Articles 15 and 16 FCNM). In each section, both the traditional and the most recent challenges facing the efffective enjoyment of language rights by persons belonging to minorities are dealt with, and the consolidated interpretation of the Advisory Committee, including practical guidance, is given. Inspiration for both the monitoring and the thematic work of the Committee is drawn from other international documents on language rights. These include, in particular, the case law of the European Court of Human Rights (ECtHR), the European Social Charter, the OSCE HCNM’s Recommendations, the UN documents, and, of course, the EChRML.37 More “traditional” language-related issues are those that recur from the very beginning in the monitoring of the Framework Convention in a wide number of countries. One may think, among many others, of questions regarding the scope of appli-

ties allow free identification of persons through language, and abstain from constraining personal identities into rigid language categories. The choice of each person belonging to a national minority to choose freely to be treated or not to be treated as such, must be respected in line with Article 3.1 of the Framework Convention. 36 37

See para. 3 Commentary on Language. See paras. 10-11 Commentary on Language, and the documents previously mentioned, note 7.

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cation of language rights,38 census and collection of data on linguistic afffijiliation,39 language quotas in the media40 (both public and private) and in the fijilm industry, 41 training and recruitment of journalists able to work in minority languages, 42 access to education for, in and on minority languages, 43 linguistic requirements for the enjoyment of language rights such as thresholds, 44 territorial and cultural autonomy arrangements, 45 and language requirements in electoral provisions46 and in judicial proceedings. 47 Among the more recent issues, the Commentary tackles complex and even more subtle, nuanced questions mostly arisen after the legislation on minority rights has largely been established. These issues include: how to combine multiple identities with participation in cultural, social and economic life and in public afffairs, 48 the balance between freedom of the media and promotion of minority rights in the media, 49 the rights of “minorities in the minority” but also of “majorities in the minorities”,50 the linguistic duties of persons belonging to majorities, especially in areas inhabited by minorities in large numbers,51 the difffijicult and not always straightforward distinction between public and private use of languages,52 the balance between promotion of the State language(s) and protection of minority languages in diffferent fijields,53 and the balance between the right to separate education for persons belonging to minorities and the interest of the society to avoid par38

See paras. 14-17 Commentary on Language.

39

See paras. 14-21 Commentary on Language.

40

See para. 43 Commentary on Language.

41

See para. 50 Commentary on Language.

42

See para. 41 Commentary on Language.

43

See paras. 68-69 Commentary on Language.

44

See paras. 56-57 Commentary on Language.

45

See paras. 90-91 Commentary on Language.

46

See paras. 92-93 Commentary on Language.

47

See para. 59 Commentary on Language.

48

See, inter alia, paras. 84, 85, 86, 87, 92 and, 93 Commentary on Language.

49

See e.g. paras. 42, 45 and 47 Commentary on Language.

50

See para. 91 Commentary on Language.

51

See e.g. para. 79 Commentary on Language.

52

For instance, information visible to the public on private grounds or buildings, possible limitations to the use of minority languages for consumers’ protection, language regulation in new media, etc. See paras. 64-67 Commentary on Language.

53

See paras. 52-54 Commentary on Language.

The Thematic Commentary on Language Rights

allel development of its communities,54 including by promoting linguistic diversity and intercultural education.55 On all these and other issues the Commentary tries to give both the systematic interpretation of the relevant provision in the Framework Convention and some practical guidance on to how to possibly resolve problems, based on recommendations that have been elaborated in the course of the monitoring. While the selection of the issues dealt with by the Commentary naturally emerges from the systematic reading of the Opinions, the refijinement of the interpretation, the exemplifijication of problems and the logical order followed in presenting the relevant issues are also the product of the open and participatory process that has guided the elaboration of the document. Following the practice inaugurated with the second Thematic Commentary on Efffective Participation (2008),56 largely invented and strongly supported by Rainer Hofmann, the Commentary on Language has also been drafted in consultation with both all relevant Council of Europe (CoE) and other international bodies dealing with minority issues, and key stakeholders, in particular civil society and minority representatives. A pre-fijinal text was thoroughly discussed in a consultation conference where minority representatives, national and local authorities, NGOs, international bodies and individual experts made their comments and practical suggestions on how to possibly improve the document. IV.

Beyond Trilogy. Concluding Remarks on Present Responses and Future Challenges

In sum, the Commentary on Language as the latest Thematic Commentary, and thus based on the largest number of country Opinions and international documents, completes what could be called the fijirst “thematic trilogy” of the Advisory Committee. The fijirst three Commentaries no doubt deal with three of the most signifijicant, complex and challenging sets of minority rights, which are now presented in light of the systematic work of the Advisory Committee. It is no coincidence that the adoption of the Commentary on Language was the last milestone set by Rainer Hofmann as the founding father of the Framework Convention and the longest serving President of the Advisory Committee. Among Hofmann’s countless merits in the drafting, the establishment and the interpretation of the Convention, the “invention” of the thematic work of the Advisory Committee has a special place. As 54

See paras. 70-75 Commentary on Language.

55

See paras. 82-83 Commentary on Language.

56

On this practice and its meaning see Palermo, op. cit. note 9.

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contended in this chapter, Thematic Commentaries are the most efffective tool to make the Framework Convention a living instrument. It could be said that while the Opinions are “fijilling the frame”,57 the Thematic Commentaries are the 3-D glasses that allow seeing and comprehensively understanding the picture resulting from a fijilled frame. Hoping that the Commentary on Language will prove to be an efffective tool for enhancing the work of the Advisory Committee like, and possibly even more than, the previous Commentaries on education and participation, i.e. being widely quoted as a reference, used as a source of inspiration of domestic policies and advancing the international debate on language rights of persons belonging to minorities. The question for the time to come is: what’s after the trilogy? In particular, is the thematic work enough to keep the Framework Convention a living instrument? And if so, what are the next areas that more urgently require comparative systematization through thematic work? First, it is important to see the Commentaries in the context of all the instruments that are part of the “toolkit” of the Advisory Committee besides the Opinions. While Commentaries are the most visible and one of the more signifijicant of such instruments, the importance of other tools for a balanced development of the Framework Convention and for the achievement of its goals should not be underestimated. The Convention lives foremost through implementation by State Parties; monitoring is just a stage in a much more complex process. Therefore, all the activities that make the Convention alive in the legislation, administration, policy and practice of State Parties are essential tools for making it a living instrument. Such activities include follow-up seminars, permanent and inclusive discussion of issues pertaining to the protection of minorities, participatory drafting of State Reports, wider academic debate on the situation of minorities in the diffferent countries, etc.58 Furthermore, while the efffectiveness of human rights instruments is not easy to measure, there are criteria that can help to assess the achievements;59 should it be 57

Quoting the title of the conference (and subsequent book) celebrating the fifth anniversary of the work of the Advisory Committee: Filling the Frame, op. cit. note 18.

58

It is worth recalling that most of such activities were not explicitly foreseen as working methods of the Advisory Committee, while at the same time also not prohibited. Their development and establishment was possible due to the active engagement and brilliant holistic vision of Rainer Hofmann, who understood the importance of complementing the “mere” monitoring (especially if based just on information provided by the States) by a more elaborated and comprehensive working method.

59

See DH-MIN, The Impact of International Norms on the Protection of National Minorities in Europe: The Added Value and Essential Role of the [FCNM]−Report Prepared by

The Thematic Commentary on Language Rights

demonstrated that the impact of the Framework Convention has increased at least in some areas after the adoption of the Commentary on Language, its importance would become more evident. Thus, while it is clear that Commentaries alone are not sufffijicient for making the Convention a living instrument, they can play a key role in this respect. Therefore, it seems essential that the practice of drafting thematic Commentaries when the systematic elaboration of specifijic issues has sufffijiciently ripened in the course of the work of the Advisory Committee will continue. Secondly, to keep a delicate instrument like the Framework Convention a living one, in line with the changing developments of minority protection, it is essential that the Advisory Committee does not shy away from the most challenging and complex questions posed by the implementation of the Convention’s provisions in wider Europe. Put diffferently, future Commentaries should cover issues that are even more controversial in the implementation of the Framework Convention, also given the fact that the critical mass of the Committee increases with the growing number of Opinions. Like in the case of the Commentary on Language, future thematic work should therefore not only focus on topical issues, but also reflect the evolution of the problems and the consolidated wisdom of the Advisory Committee in providing interpretative answers to such issues. Having in mind the most recurrent of such open questions, it is not particularly difffijicult to imagine that future thematic work could focus on issues such as the scope of application of the Framework Convention (Article 3), the relationship between minority rights and non-discrimination (i.e. in particular between the provisions applying just to some and those applying to all, such as in particular Article 6), integration of diverse societies and the measures necessary to pursue this aim (especially Articles 4 and 5) and a more modern reading of the link between minorities and territory. This last topic, being dealt with in Articles 15 and 16 of the Convention and thus partly covered by the second Thematic Commentary as part of the broader fijield of the right to efffective participation, may require further reflection on the future of the existing Commentaries. Should they themselves be amended or updated in light of further developments, or is it advisable (as it seems preferable) to further develop on issues already dealt with by existing Commentaries when circumstances so require? Rainer Hofmann, DH-MIN(2006)018, dated 5 December 2006, at ; and Tove Malloy et. al., Indicators for Assessing the Impact of the FCNM in its State Parties (EURAC, Bolzano/Bozen, 2009), at .

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In fact, if the underlying assumption of the Commentary on Language (and of this chapter) holds true, i.e. if minority issues are deemed to become increasingly a question of nuances rather than either-or and of changing rather than clear-cut identities, many of the pillars on which the Framework Convention is based will need updated reading in the near future. Furthermore, especially as monitoring goes on and some issues are not resolved, the efffectiveness of the Convention will necessarily be increasingly measured against the non-monitoring related activities, among which the thematic work plays a critical role. Moving from a black-and-white approach to identity factors, from homogeneity to multiculturalism, from protection to integration, from a dogmatic to a functional approach to territorial issues would help not only the international community re-gain its role, but also, and more importantly, minority issues to be properly addressed. It is hoped that the wisdom of Rainer Hofmann will provide inputs and both practical and theoretical suggestions on how to tackle these challenges in the years to come.

Chapter Seven The Political Process of Monitoring the FCNM Tove H. Malloy

I.

Introduction

The fact that the ultimate responsible for monitoring the Framework Convention for the Protection of National Minorities (hereinafter “Framework Convention” or FCNM) is the Committee of Ministers (CM) has introduced some tensions into the monitoring process. The CM represents the political part of the process which brings the monitoring to its fijinal stage. The offfijicial monitoring process has thus both a technical and a political element. While the technical side of the monitoring is entrusted to the Advisory Committee on the FCNM (ACFC), the political side is allocated to the most powerful body of the Council of Europe (CoE), the CM.1 In fact, the ACFC is seen as assisting the CM in its mandate.2 In practice, the CM relies almost entirely on the texts of the Opinions of the ACFC when drafting its Resolutions. Until recently the ACFC Opinions were often passed on to the States with little editing. Unfortunately, the second decade of the life of the FCNM has experienced a different reality. An increasing diplomatic activity during the process of drafting the CM Resolutions has emerged, often of a bilateral nature. Home-states and kin-states have clashed in the sub-committee of the CM entrusted with the drafting of the CM Resolutions, the Rapporteur Group on Human Rights (GR-H). This has slowed the 1

Art. 24(1), Framework Convention for the Protection of National Minorities and Explanatory Report, H(1995)010, dated February 1995, at .

2

Art. 26, FCNM, adopted 1 February 1995, entered into force on 1 February 1998, ETS No. 157, at .

Tove H. Malloy and Ugo Caruso (eds.), Essays in Honour of Rainer Hofmann Copyright 2013 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-21441-5 pp. 141-166

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monitoring process and given rise to concern that the FCNM is not enjoying the support it did initially. In some cases, the drafting of Resolutions remains stalled in the GR-H, in other cases it looks like there will not be a Resolution. This is potentially dangerous for the aim of the FCNM because (1) Resolutions risk becoming outdated by the time they are passed, and (2) if Resolutions are not passed, the instrument is likely to lose leverage in European minority protection and politics. It is no coincidence that the drafters made sure that the strongest and highest ranking body of the Council of Europe was tasked with the intergovernmental function of informing and directing contracting States toward compliance with the provisions of the FCNM. It is the only non-judicial body within the CoE that holds leverage with the States. The problem is that the CM Members represent both the law makers and the law executors. Unlike a court which is stafffed with independent experts, i.e. judges who usually take an oath of impartiality, the CM consists of government agents, who are answerable to their governments. At the same time, governments are the agencies that are supposed to implement the provisions of the FCNM at the domestic level. Thus, although the Members of the CM represent the interest of a government, they are supposed to neglect these interests when preparing recommendations on how to implement the FCNM. The conflicts of interest that arise are thus likely to appear as lack of respect for the FCNM even though the countries that are represented in the CM have agreed to the moral aim of the FCNM by signing up to it and ratifying it. The political side of the monitoring process of the FCNM is the focus of this chapter. Specifijically, it seeks to investigate the process in the GR-H in terms of issues that have become controversial and resulted in slowing the monitoring process. It will also include a brief discussion on the role of the Parliamentary Assembly of the Council of Europe (PACE). The focus is on both issues and actors. What are the issues raised? Which countries are involved in the individual cases? Why are issues being raised now that were not raised in the fijirst years of the monitoring? The aim of the chapter is to establish the motivations of actors and the nature of the issues at stake in order to assess whether there is a legitimate concern about the waning moral support for the FCNM. The analysis is divided into procedural aspects and substantive issues. In order to put the analysis in perspective, a description of the monitoring process and its actors is offfered fijirst. Next, six case studies are surveyed very briefly in order to put the problem of bargaining in perspective. The chapter concludes with a summary of the case studies and a few concluding remarks. The chapter is based on public sources only, but the issue at stake, the delayed adoption by the CM of Country Resolutions, was brought to the author’s attention by Rainer Hofmann. He has voiced on a few occasions his concerns about this seem-

The Political Process of Monitoring the FCNM

ingly new development, which had arisen between his fijirst and second tenure as President of the ACFC. As President he had the task of presenting the ACFC Opinions to the Members of the GR-H. While this is of course a formal function given that there is a clear division of labour between the CM and the ACFC, the delay in adoption of Resolutions nevertheless influences the work of the ACFC and its President. It especially poses obstacles for the President, who is responsible for the work plan of the ACFC, and delayed Resolutions can mean changes to the work plan and, in particular, to the organization of the country visits, which are an essential part of the monitoring process. But the responsiblity of the ACFC President ends with the presentation of Opinions to the GR-H; he/she does not participate in any of the deliberations in the GR-H. For this reason, the conclusions made in this chapter are entirely based on the author’s views as an observer. II.

The Changing Developments in the Established Norm

During the fijirst ten years of the FCNM being in force, the norm for the time that it took for an ACFC Opinion to become a CM Resolution was around 12 months. Thus, for the fijirst countries to be monitored in the fijirst cycle of monitoring, which began in 1999, the majority followed a consistent pattern of Opinion-to-Resolution in 12 months. State Reports submitted in 2000 followed the same pattern with the exception of Slovenia. Of the countries submitting in 2001, only Albania stood out with an Opinion-to-Resolution period of two and a half year. States submitting in 2002 and 2003 went through within 12 months, with the exception of Bulgaria which lasted two years. For State Reports submitted in 2004, some of which were second cycle reports, only Malta deviated from the norm by two months. Of the reports submitted in 2005, the Romania process exceeded the Opinion-to-Resolution norm by six months. With 2006, the norm began to weaken. The Opinion-to-Resolution period for Latvia lasted a year and a half, while a Resolution on Lithuania has yet to be adopted. The Opinion-to-Resolution period for the Ukraine, which submitted a State Report in 2006, lasted almost three years. The cases of Latvia, Lithuania and the Ukraine are discussed below. The submission in 2007 by Bulgaria stalled in the GR-H process for almost two years until the CM adopted the Resolution on 1 February 2012. However, Bulgaria is omitted in this chapter due to lack of open access to documentation. Also in 2007, Georgia submitted its fijirst State Report, while Poland submitted its second State Report. These two processes remain unresolved, stalled in the GR-H. Both Georgia and Poland are discussed below.

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In 2008, the Netherlands submitted a State Report where the Opinion-toResolution period lasted a year and a half, while the period for the Serbian Report lasted two years. A discussion of Serbia is included below. The Progress Report for Kosovo was also delayed by six months but will not be discussed here due to its unique character.3 Of the Reports received in 2009 as part of the third cycle of monitoring, CM Resolutions for Armenia and Italy were published in 2012, while Malta only submitted a State Report in January of 2012. 4 The Ukraine submitted a Report in 2009 which received the ACFC Opinion in March 2012 but is awaiting a Resolution. These processes are not considered in this chapter due to the late arrivals of Resolutions or restricted access to the documents. III.

The Role of the Committee of Ministers (CM)

The CM has the fijinal responsibility in the monitoring of the FCNM as per Article 24 of the instrument. The CM comprises the Ministers for Foreign Afffairs of all the Member States, or their permanent diplomatic representatives in Strasbourg, called the Deputies.5 It is both a governmental body, where national approaches to problems facing European society can be discussed on an equal footing, and a collective forum, where Europe-wide responses to such challenges are formulated. In collaboration with PACE, it is the guardian of the Council of Europe’s (CoE’s) fundamental values. It monitors Member States’ compliance with their undertakings. In May 1951 the CM invited each Member State to appoint a Permanent Representative who would be in constant touch with the organization. All Permanent Representatives reside in Strasbourg. They are usually senior diplomats with ambassadorial rank, 3

Under the FCNM an agreement between the CoE and the United Nations Interim Administration Mission in Kosovo (UNMIK), signed on 23 August 2004, provided for monitoring even though Kosovo at the time was not a sovereign state. See the chapter by Ugo Caruso.

4

The omission by States to submit State Reports on time has been addressed by the ACFC and the CM with regard to Bosnia and Herzegovina, Cyprus and the United Kingdom. See “[FCNM]–Proposal regarding the Commencement of the Monitoring of the Framework Convention without a State Report”, in CM, 850 Meeting of the Ministers’ Deputies, CM/Del/OJ(2003)850, dated 3 September 2003, at , and CM, [FCNM]-Proposal Regarding the Commencement of the Monitoring of the Framework Convention without a State Report Decision, CM/Del/Dec(2003)832/4.2 (974th Meeting), dated 27 and 28 September 2006.

5

See .

The Political Process of Monitoring the FCNM

occasionally chargés d’afffaires. In 1952 the CM decided that each Minister could appoint a Deputy. The Deputies have the same decision-making powers as the Ministers. A Deputy is usually also the Permanent Representative of the Member State. The CM also determines a number of procedural rules relating to the monitoring of the FCNM. Among these are Resolution (97) 10 and Resolution CM/Res(2009)3, which have paved the way for the functioning of the monitoring.6 The country resolutions are by and large based on the ACFC’s Opinions. The complementarity between the two bodies is therefore essential for the monitoring exercise. Moreover, during the preparation of a resolution, other states and non-state parties have an opportunity to express views with regard to the situation in the State concerned. This part of the process takes place in the GR-H,7 which is thus the arena where the intensive deliberation takes place. IV.

The Rapporteur Group on Human Rights (GR-H)

The GR-H is the subsidiary group of the CM dealing with human rights.8 Subsidiary groups have considerable power in the Council of Europe system. Each Rapporteur Group deals with matters falling within its fijield of activity in close contact with the Secretary General. As such, it plays a part in the supervision of progress and results of the major projects and programme. Rapporteur Groups engage in general policy discussions of relevance to their sectors of activity. They develop their activities in contact with the PACE, its committees, their Chairs and Rapporteurs, with the Congress of Local and Regional Authorities of the CoE and its bodies, as well as with Steering Committees, their Bureaux and Chairs, and conferences of specialized Ministers and their preparatory committees. Rapporteur Groups are responsible for maintaining dialogue with the steering committees and partial agreements (working in their respective sector of activities). This includes the holding of hearings. Rapporteur Groups may appoint Working Parties or Thematic Coordinators for a fijixed time to consider specifijic issues within the Group’s fijield of competence. Rapporteur Groups have no decision-making power. However, they are important 6

Resolution (97) 10: Rules Adopted by the [CM] on the Monitoring Arrangements under Articles 24 to 26 of the [FCNM], Resolution(1997)010, adopted by the CM on 17 September 1997 at the 601st Meeting of the Ministers’ Deputies.

7

CM, [FCNM] General Issues Related to the Monitoring of the Framework Convention, GRH(2001)7, 12, CB6 and CB8 (756th Meeting ), 12-14 June 2001.

8

See .

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in drawing up draft Decisions ready for adoption as they stand by the Ministers’ Deputies. These draft Decisions will be included in the Notes on the Agenda with a comment to the efffect that they have been prepared and, if appropriate, agreed to by a Rapporteur Group or Working Party. Wherever possible, they may be proposed for adoption without debate at the start of the Deputies’ plenary meeting.9 In June 1985, the Deputies of the CM set up nine Rapporteur Groups covering the various fijields of the CoE’s activities. Their main function was to prepare the Deputies’ debates on certain particularly important topics. As recommended subsequently by the Committee of Wise Persons (GT-Sages),10 the Ministers’ Deputies decided to restrict the number of Rapporteur Groups to the ones already in existence and to entrust other matters to individual Rapporteurs who would be free to decide their own working methods, under the motto “individual work – collective decision”.11 The distinctive feature of the Rapporteur Groups is their informality: they are not subject to the rule of quorum and have no decision-making power; they recommend action to be taken by the Deputies. Since January 1994,12 Rapporteur 9

CM, Working Methods of The Ministers’ Deputies, CM/Del/Dec(94)506/ADM3 (506th Meeting), January 1994, at .

10

At its 613th meeting on 18, 19 and 23 December 1997, the CM decided to set up a Committee of Wise Persons composed of Mario Soares as Chairman (former President of Portugal) with Gret Haller (Ombudsperson for Bosnia and Herzegovina, Switzerland), Tarja Halonen (Minister for Foreign Affairs, Finland), Laszlo Kovacs (Minister for Foreign Affairs, Hungary) and Vladimir Schustov (Ambassador at large, Russia). The Committee, known as the GT-Sages, was entrusted with the task to propose reforms to the CoE structure and work in light of the rapid expansion of membership. Involved in the GT-Sages’ work were also the President of the PA, the President of the Venice Commission, a representative of the EU Presidency, a representative of the OSCE Chairmanship-in-Office and a representative of the host country’s authorities. See CM, 609th bis Meeting 26 November 1997, CM/Del/Dec(97)609bis/1.4, dated 26 November 1997; and Committee of Wise Persons Composition, Chairmanship and Terms of Reference, GT-SUIVI(97)2 and 3 rev (613th Meeting), 18, 19 and 23 December 1997.

11

CM, 1.4 Ministers’ Deputies’ Rapporteur Groups, Rapporteurs and Working Parties-Procedure, CM(99)155 (686th Meeting), 27-28 October 1999, at .

12

CM/Del/Dec(94)506/ADM3, op. cit. note 9.

The Political Process of Monitoring the FCNM

Groups are open to all delegations wishing to take part in the activities, including States enjoying observer status with the CM. Their Members shall be Permanent Representatives or their Deputies. Chairs of Rapporteur Groups are appointed from among Permanent Representatives. When the Chair of a Rapporteur Group becomes vacant, the Chair of the Ministers’ Deputies notify the Deputies and any candidate interested in the position can notify the Chair of the Ministers’ Deputies accordingly. The Deputies’ Bureau selects Chairs of Rapporteur Groups in accordance with a number of criteria, such as seniority, qualifijications, availability and stated interest in the fijield of activities. Gender balance is also taken into consideration. The outgoing Chair of the Ministers’ Deputies may be offfered the chairmanship of a group, regardless of his/her seniority. The Bureau of the CM submits Recommendations to the Ministers’ Deputies who take a decision. The Bureau seeks to make a Recommendation by consensus, in principle within two meetings. When there is more than one candidate, the Chair will carry out consultations with the candidates, in order to identify a consensual solution to be presented to the CM. If the Bureau does not reach consensus, the full list of candidates is submitted for a decision by the CM. The list will contain the candidates who have expressed to the Chair the wish to maintain their candidature. If the Bureau makes a recommendation, but another candidate maintains his/her candidature, then the list of candidates will be submitted for a decision by the CM. The term of offfijice of Chairs of Rapporteur Groups is two years, in principle non-renewable, from the date of his/her nomination by the Deputies. This period may, however, be extended by the Ministers’ Deputies in exceptional cases, where continuity in the activities embarked upon by a particular Group is required. Within each Rapporteur Group, the Chair has an instigating and guiding role in the Group’s sphere of work. He or she reports to the Ministers’ Deputies on the Group’s work when the items that the Group has prepared come up for discussion. The Chairperson ensures that in principle the Group meets regularly according to an agreed timetable, that the agenda justifijies convening a meeting, including items that are relevant to the majority of delegations and that documents are distributed on time.13 The Chair of each Rapporteur Group and the Group itself may also make contact outside the Council of Europe. Such contacts are made after consulting the Chair of the Ministers’ Deputies, who may decide to refer the matter to the Bureau and, 13

CM, 1.6 Revised Guidelines for the Reform and Modernisation of the Committee’s Working Methods”, CM(2010)154 final (1098 Meeting), 17 November 2010. Also see CM(99)155, op. cit. note 11.

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if necessary, the Ministers’ Deputies. These contacts should not interfere with the statutory role of the Secretary General when representing the Council. Invitations to attend a Rapporteur Group meeting must be addressed to a specifijic personality, and delegations must be informed ahead of the participation in Group meetings.14 A Vice Chair can be appointed to stand in for the Chair in case of absence. Any appointment is made in close consultation with the Chair of the Ministers’ Deputies. If both the Chair and Vice Chair of a Rapporteur Group are absent or unavailable, a replacement is appointed on an ad hoc basis. The aim of Rapporteur Groups is to function as forums for information exchange and identifying problems in preparation of Ministers’ Deputies’ discussions. Ideally, Rapporteur Groups draw up draft Decisions to be presented to the Ministers’ Deputies for adoption without debate. Rapporteur Groups also prepare the general exchanges of views held by the Deputies on the work done in each sector of the programme of activities. The Groups have no Rules of Procedure and in particular no rule on quorums. If a delegation considers it necessary, after the Rapporteur Group meeting, to continue discussion on an item at plenary level, the Chair of the Ministers’ Deputies and the Chair of the Group are informed accordingly, and it is noted in the synopsis of the meeting. If Rapporteur Groups are unable to arrive at consensus, the matter is transferred to the Ministers’ Deputies who adopt Decisions as well as discuss general policy matters and rule on questions not resolved within the Rapporteur Groups. Rapporteur Groups meet at diffferent intervals. The GR-H meets generally every six weeks. Meetings are held without interpretation. Rapporteur Groups’ agendas are in principle drawn up at the instigation of the Ministers’ Deputies or the Deputies’ Bureau. Within their particular spheres of activity, the Chair of each Rapporteur Group and the Group itself has room for initiative. In the interest of consistency, they keep the Chair of the Ministers’ Deputies informed of their draft agendas and the Groups’ programmes of activities. The Chair of the CM may decide to consult the Bureau and, if necessary, the Ministers’ Deputies. Meetings are announced in advance in order to provide knowledge of items for the agenda, planned timetable and timely distribution of documents. Documents for discussion are distributed 15 workings days in advance, and delegations must present proposed amendments in writing three to fijive working days before the date of the meeting. At the start of a discussion on a substantive point, the Chair gives a short introduction and indicates to delegations the maximum length of time avail14

CM, Meeting Report 21 April 2008, CM/Bur/Del(2008)6, dated 22 April 2008. Also see CM/ Del/Dec(94)506/ADM3, op. cit. note 9.

The Political Process of Monitoring the FCNM

able and of interventions. The Chair will announce the number of delegations asking for the floor and give the names of the next two on the list. Delegations have three minutes speaking time to their intervention depending on the agenda item, on the understanding that the Chair will use flexibility. When formal statements of some length have to be made, they are summarized briefly drawing attention to highlights and conclusions, and a full written text will be distributed separately and included in the records of the meeting. For exchange of views, delegations are encouraged to submit questions in writing in advance, which will enable the diffferent personalities to answer them in their introductory comments. The Chair guides the discussions towards an operational result, in particular by requesting delegations to react to compromise texts or specifijic proposals. When it appears that a consensus is emerging, the Chair may ask if there are any delegations that do not share the same position, with a view to conclude the discussion. In the event that consensus is not arising, the Chair has alternative informal measures that can be used. These include informal consultations, open-ended consultations and face-to-face consultations. Over the period researched for this chapter, the GR-H has had general discussions about the informal meetings of the Group.15 In particular, possible means whereby delegations unable to attend informal consultations might be informed were discussed. It was perceived necessary not only for their own benefijit, but also in case their capitals needed to be informed about the negotiating positions taken up by the protagonists and the progress achieved. While a need for transparency has been emphasized, the informal character of such consultations is considered important in the interest in particular of the necessary freedom of debate. Generally, the Chairs of the GR-H considered that the best way to be informed was to be present, but endeavoured when introducing an item which had been the object of informal consultations, to give a brief summary of the proceedings. It is open to States to issue statements of their positions, if they so wish, and they are encouraged to do so by the Chairs. It has also been suggested that the question might be discussed in connection with the Deputies’ working methods. Another procedural topic which has been raised is the desirability of voting. Several delegations have voiced the opinion that that a text adopted by a majority was less authentic than one adopted by consensus, and that the dialogue which took 15

GR-H, Synopsis Meeting of 3 February 2011, GR-H(2011)CB2, dated 9 February 2011, at .

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place in the CM was as important a part of the monitoring process as the analysis performed by the ACFC. To this point, Chairs have had to point out that, for the monitoring mechanism to function properly, consultations and discussions needed to be completed within a reasonable time, and voting could conceivably be the only means of resolving cases in which irreconcilable diffferences exist.16 When summing up at the end of GR-H meetings, Chairs indicate those items that are to be transferred to the CM Deputies for adoption. This is also indicated in the synopsis of the meetings. GR-H synopses are distributed no later than four working days after the meeting.17 In the event that there is not a consensus in the GR-H on a Resolution, the Chair of the GR-H has the option to transfer draft Resolutions for adoption anyway. In that case, the fijinal discussion and negotiation may take place in the CM. V.

The Process of CM Decisions

A Resolution adopted by the GR-H through consensus, occasionally by majority vote, is forwarded to the CM Bureau, which prepares the meetings of the CM Deputies. Usually Resolutions are adopted immediately. A so-called “cut-and-paste” process is followed whereby the essential wording of the ACFC Opinion is lifted and inserted in the draft CM Resolution text. While the CM Deputies have been efffijicient in processing Resolutions quite swiftly since the FCNM came into efffect, the CM and the Deputies are nevertheless the last leg of the political process of the monitoring of the FCNM. Discussion and debate of individual Resolutions is, therefore, to be expected. Once adopted, CM Resolutions are made public by the Bureau.

16

Ibid.

17

Convocations and synopsis of the meetings of the Rapporteur Groups are issued under the responsibility of each Group’s Chair. Copies thereof are sent to all delegations and, where appropriate, to observers, in order to ensure that they are kept regularly informed of the work in progress in the different Groups. At their meetings, Rapporteur Groups endeavour to make use of annotated agendas and Chairs of the Rapporteur Groups seek to comply with a deadline for circulation of working papers for their Groups (in principle documents for discussion should be distributed 15 workings days in advance). The deadline may nonetheless be applied more flexibly according to the urgency of the subject to be discussed. Meeting synopsis should provide a succinct record of the content of the debates without, as far as possible, identifying the delegations concerned (synopses should be distributed no later than 4 working days after the meeting).

The Political Process of Monitoring the FCNM

However, there have been instances where a Resolution was not adopted when submitted to the CM Deputies. Of the case studies included in this chapter, the Ukraine draft Resolution was not adopted at the fijirst try. This led the Chair of the CM Deputies to request that the Secretariat draw up a legal Opinion on the repercussions of the failure to adopt a Resolution within a Convention control procedure.18 It was thus decided in the Bureau’s 22 February 2010 meeting to pursue this issue, and a request was sent to the Chair of the GR-H.19 On 5 March 2010, the Secretariat distributed the legal Opinion requested by the Deputies. The GR-H was invited to consider the issue with a view to fijinding a solution to ensure that the CM would fulfijil its obligation to monitor the implementation of the FCNM. During its meeting of 23 March 2010, the Chair informed the Group that his intention in placing the item on the agenda was not to have a debate of substance but simply to indicate that he would be proposing the resumption of the question in due course once he had consulted the delegations concerned. Several delegations intervened to support this approach. On 14 June 2010, the FCNM Secretariat, in cooperation with the Directorate of Monitoring, submitted a draft text to the GR-H for its discussions during its meeting on 15 June 2010.20 The text proposed a so-called “fall-back” Resolution procedure for situations where the CM Deputies were not able to reach consensus on a draft Resolution. Basically, the proposal suggests allowing the CM Deputies an opt-out from the standard procedure by simply passing on the ACFC Opinion as issued to the Member States. Standard procedure is seen as taking the conclusions of the ACFC and either making them the CM Deputies’ own or adapting them according to the Deputies’ vision. This provides the CM Deputies with a fall-back position. 18

Ministers’ Deputies Decisions, 1067th Meeting 7 October 2009 Chair’s summing-up, CM/ Del/Dec(2009)1067 Addendum, dated 9 October 2009, at .

19

Ministers’ Deputies/Bureau Information Documents, Meeting Report 22 February 2010, CM/Bur/Del(2010)6, dated 23 February 2010, at .

20

GR-H, [FCNM]–Format of Draft Resolutions on the Implementation of the Convention by Member States: Suggestion for a “Fall-back” Format for Situations in which Consensus is Impossible. Note Prepared by the Secretariat of the Framework Convention, Directorate of Monitoring, GR-H(2010)8, dated 14 June 2010, at .

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During the GR-H meeting on 15 June 2010, the Secretariat (Director of Monitoring) explained the thinking behind the proposal. He concentrated in particular on the evident difffijiculty that the CM had had in accomplishing its supervisory duty under the FCNM when intractable diffferences between delegations result in the impossibility to arrive at a consensus and when, moreover, there is insufffijicient will within the CM to express a clear view leading to the possibility of resolving such issues by vote. Next, the Chair set the stage for the debate by recalling that the procedure proposed should only be regarded as an absolute last resort and that it could not be applicable to any Resolution currently pending before the GR-H. He noted, however, that the pertinence of the proposal was reinforced by the fact that, of fijive drafts submitted at the time, only one had been adopted. A heated and extensive debate ensued. Many delegations expressed their views apparently—according to the minutes of the meeting—without instructions from capitals. The comments were summarized in the minutes as follows: – some delegations considered that the proposed procedure was contrary to the letter and spirit of the Framework Convention and Resolution (1997)010 and should not be entertained; – many delegations, while appreciating the logic of the proposal, saw it as an “easy way out” and as such too potentially attractive: so much so, in fact, that it could supplant the usual style of resolution to the detriment of the Committee’s supervisory role and thus of the efffectiveness of the Convention mechanism; – others, some of whom agreed with this assessment, underlined that more work was needed to defijine the terms used in the text, to determine with precision the circumstances in which the fall-back procedure would be invoked so as to eliminate subjectivity as far as possible, and to assess the consequences of the measure not only for the Framework Convention but for other instruments as well; – in addition some delegations considered that it would be more profijitable if, instead of devoting attention to emergency solutions applicable in cases of failure, more thought were given to ways in which such failure could be avoided in the fijirst place.21

21

GR-H, Synopsis Meeting of 15 June 2010, GR-H(2010)CB7, dated 21 June 2010, at .

The Political Process of Monitoring the FCNM

In response to the comments, the Secretariat expressed satisfaction at the apparently unanimous will to preserve the CM’s collective responsibility under the FCNM, but added that measures would nevertheless be needed to reconcile this will with the manifest impossibility of reaching consensus in some cases. Specifijically, the Director of Monitoring asserted that the choice did not lie between the “classic” and the “fall-back” Resolution, but between the latter and no Resolution at all. He mentioned in this context that one State had already submitted its third-cycle State Report whilst the second-cycle Resolution had not yet been adopted. Closing the debate, the Chair, reiterating the emergency nature of the proposed procedure, suggested that the matter was taken up again at the next meeting, if appropriate in the light of refijined proposals by the Secretariat following the debate. However, the following meeting on 30 September 2010 did not include a discussion of the “fall-back” Resolution issue nor did any of the remainder of the meetings during 2010. Instead, the November and December meetings of the GR-H included a debate on PACE Recommendation 1904 (2010) on “[m]inority protection in Europe: best practices and defijiciencies in implementation of common standards.”22 This Recommendation was submitted to the GR-H for a reply as part of the monitoring procedure, since the CM is answerable to the PACE as part of the power structure of the Council of Europe. VI.

The role of the Parliamentary Assembly (PACE)

The PA Recommendation 1904 (2010) on “[m]inority protection in Europe: best practices and defijiciencies in implementation of common standards” is an example of the tools that the PA has at its disposal to fulfijil its role of oversight. Recommendation 1904 is actually very short and consists of recommendations to the Members of the CM. It addresses the implementation of several CoE instruments, including the FCNM. Specifijically, with regard to the FCNM, it highlights the principles and the tenet of Article 2 of the instrument, which holds that “[t]he provisions of this Framework Convention shall be applied in good faith, in a spirit of understanding

22

Recommendation 1904 (2010) Minority Protection in Europe: Best Practices and Deficiencies in Implementation of Common Standards, PA REC_1904, adopted by the Standing Committee acting on behalf of the Assembly on 12 March 2010; listed first in the GR-H Annotated Agenda dated 22 October 2010 for the GR-H meeting on 2 November 2010.

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and tolerance and in conformity with the principles of good neighbourliness, friendly relations and co-operation between States.”23 During the 2 November 2010 meeting, the GR-H debated a reply to the PACE, the text of which would have to be submitted to the CM for approval. It was thus not the text of the PACE Recommendation that was up for debate, but the GR-H’s proposal to the CM for a reply to PACE. A draft text prepared by the Secretariat functioned as the starting point for the discussion in the GR-H. This text and subsequent texts submitted to the GR-H for discussion is not publicly available. The point of the PACE’s power as overseer of the monitoring processes is therefore not readily available for analysis. However, the role of preparing the CM’s reply to the PACE in the GR-H is worth examining. According to the minutes of that meeting, two proposed amendments had been communicated to the GR-H.24 One proposal by the Russian delegation proposed to delete the last sentence of Paragraph 1, and one by the Latvian delegation proposed to delete that whole Paragraph. In response to the Russian proposal, the French delegation proposed to replace the deleted sentence with another sentence: “However, it has to be admitted that some states encounter specifijic difffijiculties in this regard taking into account their legal order or their national practices.” It is, of course, not possible to fully assess the extent to these amendments and the substantive issues at stake. However, the Representative of the Russian Federation indicated during the meeting that her authorities could accept this wording provided that the main verb “admitted” was replaced by “noted”. The Chair noted that this seemed to be generally acceptable, although the Representative of Greece considered that the reference to “constitutional order” in the original text was useful, and would need to have instruction in order to accept the amended wording. With regard to the Latvian proposal, the Representative of Latvia explained that the two normative instruments mentioned in Paragraph 2 were extraneous to the subject of the recommendation, which was the FCNM. The Representative of the Russian Federation recalled that the two instruments in question had nonetheless been addressed in the PACE’s text and suggested that the Paragraph might be retained with a change to the main verb. The Chair indicated that there was agreement to replacing “echoed” with “took note of” and to retaining the Paragraph as 23

FCNM, op. cit. note 2.

24

GR-H, Synopsis Meeting of 2 November 2010, GR-H(2010)CB10, dated 8 November 2010, at .

The Political Process of Monitoring the FCNM

thus amended. On this basis, the Chair said that a “prov2” version of the text would be issued to all delegations shortly and he hoped that it would be possible to conclude the debate rapidly on the basis of the revised draft.25 A third proposal for changes did arrive after the 2 November 2010 meeting.26 The GR-H’s proposal for a CM reply to the PACE Recommendation 1904 was therefore debated again at the GR-H’s meeting on 7 December 2011. With the exception of one delegation that would have preferred to undo the amendment proposed at the last meeting to replace the term “echoes” in the fijirst line of the second paragraph and another delegation which made a statement to the efffect that in the vocabulary of multilateral diplomacy, the term “to take note” is strictly neutral, the Chair was able to conclude that there was consensus to send the draft reply to the CM for adoption during its next meeting on 12 January 2011.27 In other words, the PA’s Recommendations do hold some sway in the monitoring process and can, as shown here, get the political tit-for-tat into play. VII.

Case Studies

Of the 39 Member States that have signed and ratifijied the FCNM, the six that were identifijied for this chapter were selected because the political process following the technical monitoring process had turned out to be considerably longer than the norm of around 12 months. Five out of the six have seen a fijinalization of the political process with the adoption of a CM Resolution. Thus, after more than three years, the CM Resolution on Georgia has not been adopted. Poland and Lithuania took more than three and four years, respectively. The processes on Latvia, Serbia and the Ukraine were resolved and fijinalized by the CM adoption of a Resolution. Except for Georgia and Latvia, all examinations relate to second cycle of monitoring. In this section, the country case conclusions of the monitoring processes from Opinion-toResolution are presented in abbreviated form based on previous research published in April 2012.28 25 26

Restricted document. GR-H, Annotated Agenda Meeting of 7 December 2010, GR-H(2010)12, dated 29 November 2010, at .

27 28

Ibid. Full and detailed descriptions and in-depth analysis can be found in Tove H. Malloy, “The re-politicization of European minority protection: six cases from the FCNM monitor-

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A.

Georgia

Georgia joined the Council of Europe on 27 April 1999 and signed the FCNM on 21 January 2000. With ratifijication on 22 December 2005, the FCNM went into force on 1 April 2006. The fijirst cycle of monitoring began on 16 July 2007 when Georgia submitted its fijirst State Report.29 Based on a country visit by a delegation from the ACFC from 8-12 December 2008, the ACFC issued its fijirst Opinion on Georgia on 19 March 2009.30 The Government of Georgia submitted Comments to the Opinion six months later on 16 September 2009.31 To date there has been no CM Resolution issued. The second cycle of monitoring began on 1 April 2012. The substantive issues stalling the process of drafting the CM Resolution on Georgia relate fijirst and foremost to the divergent views of the 2008 conflict between Georgia and the Russian Federation. In addition, the issue of the repatriation of Meskhetian Turks played a secondary role which was, however, resolved in 2010. The reasons for the lack of resolve of the fijirst issue in 2011 are not publicly available. The case of Georgia is perhaps special due to the 2008 conflict. However, the case of Georgia illustrates well the nuts and bolts of the political process in terms of both procedure and substance. It shows that the procedure was extremely difffijicult for the GR-H Chair to steer and that objections and amendments seem to be the accepted behaviour. With regard to substance, it shows that interstate relations on issues which do not actually pertain to the implementation of the legal provisions in the instrument can halt a process for considerable time, perhaps for good.

ing process”, ECMI Study No. 7, April 2012, at . 29

Report Submitted by Georgia Pursuant to Article 25, Paragraph 1 of the [FCNM] (received on 16 July 2007), ACFC/SR(2007)001, dated 16 July 2007, at .

30

ACFC, Opinion on Georgia, Adopted on 19 March 2009, ACFC/OP/I(2009)001, dated 10 October 2009, at .

31

ACFC, Comments of the Government of Georgia on the First Opinion of the [ACFC] by Georgia (received on 16 September 2009), GVT/COM/I(2009)002, dated 10 October 2009, at .

The Political Process of Monitoring the FCNM

B.

Latvia

Latvia joined the Council of Europe on 10 February 1995 and signed the FCNM on 11 May 1995. With ratifijication on 6 June 2005, the FCNM went into force on 1 October 2006. The fijirst cycle of monitoring began on 11 October 2006 when Latvia submitted its fijirst State Report.32 On 9 October 2008, the ACFC issued its fijirst Opinion on Latvia.33 The Government of Latvia submitted Comments to the Opinion seven months later on 18 May 2009.34 The CM Resolution was issued two years later on 30 March 2011. The second cycle of monitoring was set to begin on 1 October 2011. The substantive issue that upheld the drafting process toward a CM Resolution was the citizenship and naturalization policy adopted by the Latvian government with regard to the Russian-speaking population. The political process on the Latvian Resolution indicates again that interstate relations seem to be the problem upholding the process. This time, however, it could be argued that the interstate relations pertain directly to the implementation of the FCNM provisions by the Latvian government. The interstate issues between Latvia and the Russian Federation with regard to the naturalization and citizenship of the Russian-speaking minority are therefore—unlike the case of Georgia, where the disagreement pertained to the views on the 2008 conflict—directly related to the kin-state relationship between Russia and the Russian minority in Latvia. As it turns out, the substantive issue was in fact language training because the fijinal text of the Resolution included a specifijic reference to language training for the purpose of naturalization, i.e. language training in the Latvian language. This seems to indicate that Latvia might have succeeded in having this inserted since Latvian language training is considered necessary in order to obtain citizenship in Latvia. On the procedural side, it is interesting to note that between 7 December 2010, when the Chair reported that no progress had been recorded since informal consultations between Latvia and the Russian Federation in October of 2010, and March 32

Report Submitted by Latvia Pursuant to Article 25, Paragraph 1 of the [FCNM] (received on 11 October 2006)”, ACFC/SR(2006)001, dated 11 October 2006, at .

33

ACFC, Opinion on Latvia Adopted on 9 October 2008”, OP/I(2008)002, dated 30 March 2011, at .

34

ACFC, Comments of the Government of Latvia on the First Opinion of the [ACFC] by Latvia (received on 18 May 2009), GVT/COM/I(2009)001, at .

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2011, a draft Resolution text was agreed upon and eventually adopted. There are no records of informal meetings taking place during this October 2010-March 2011 period. We do know that a text was submitted to the central governments of Latvia and the Russian Federation in November 2010. These might have produced the agreement. Nevertheless, the Latvian process seems to indicate that kin-state relations are clearly an obstacle in a multilateral cooperation that is supposed to be based on deference to higher moral standards. C.

Lithuania

Lithuania joined the Council of Europe on 14 May 1993 and signed the FCNM on 1 February 1995. With ratifijication on 23 March 2000, the FCNM went into force on 1 July 2000. The fijirst cycle of monitoring saw a very swift process with submission of fijirst State Report on 31 October 2001 and adoption of the CM Resolution on 10 December 2003. The political process from Opinion-to-Resolution took ten months. The monitoring under the second cycle began on 3 November 2006 when Lithuania submitted its second State Report.35 On 28 February 2008, the ACFC issued its second Opinion on Lithuania.36 The Government of Lithuania submitted Comments to the Opinion eight months later on 20 October 2008.37 The CM Resolution was issued fijinally on 28 November 2012. The third cycle of monitoring began a year before the CM Resolution was issued on 21 September 2011 with the arrival of the third State Report. The substantive issues holding up the fijinalization of the CM Resolution on Lithuania are yet again kin-state related. This is clear from the declaration offfered by the Polish delegation in connection with the presentation of the ACFC Opinion in the GR-H on 28 October 2008. Issues pertaining to a number of areas of concern to 35

Second Report Submitted by Lithuania Pursuant to Article 25, Paragraph 2 of the [FCNM] (received on 3 November 2006), ACFC/SR/II(2006)007, dated 3 November 2006, at .

36

ACFC, Second Opinion on Lithuania Adopted on 28 February 2008, ACFC/OP/II(2008)001, dated 4 July 2001, at .

37

ACFC, Comments of the Government of Lithuania on the Second Opinion of the [ACFC] by Lithuania (received on 20 October 2008), GVT/COM/II(2008)004, dated 4 July 2011, at .

The Political Process of Monitoring the FCNM

Poland were raised, including language and name use in the public sphere, as well as census issues. In particular, the legal protection in these areas was highlighted. The pattern of kin-state issues dominating the political process is now becoming clearer. This time the kin-state actions of Poland were so explicit that other delegations seem to have become uncomfortable. The fact that the Polish proposal for amendments apparently enumerated specifijic draft laws and made a direct plea to the Lithuanian Parliament to adopt laws on national minorities was a step too far for the Members of the GR-H and the language was softened accordingly. Notwithstanding that the issue at stake in Lithuania may be minority legislation and that the Lithuanian declaration made during the fijirst meeting when the President of the ACFC presented the Opinion on Lithuania did not refer to any legal matters, the Polish behaviour in this process clearly went beyond the principles of state sovereignty and non-interference in international law. D.

Poland

Poland joined the Council of Europe on 26 November 1991 and signed the FCNM on 1 February 1995. With ratifijication on 20 December 2000, the FCNM went into force on 1 April 2001. The fijirst cycle of monitoring saw a very swift process with submission of fijirst State Report on 10 July 2002 and adoption of the CM Resolution on 30 September 2004. The political process from Opinion-to-Resolution took ten months. The monitoring under the second cycle began on 8 November 2007 when Poland submitted its second State Report.38 On 20 March 2009, the ACFC issued its second Opinion on Poland.39 The Government of Poland submitted Comments to the Opinion 11 months later on 7 December 2009. 40 The CM Resolution was issued on 28 November 2012. The third cycle of monitoring began on 1 April 2012. 38

Second Report Submitted by Poland Pursuant to Article 25, Paragraph 2 of the [FCNM] Received on 14 January 2009, ACFC/SR/II(2007)006, dated 8 November 2007, at .

39

ACFC, Second Opinion on Poland Adopted on 20 March 2009, ACFC/OP/II(2009)002, dated 7 December 2009, at .

40

ACFC, Comments of the Government of Poland on the Second Opinion of the [ACFC] by Poland (received on 7 December 2009), GVT/COM/II(2009)003, dated 7 December 2009, at .

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It is not possible to identify substantive issues that have stalled the process on the Resolution on Poland. It is known that statements and proposals by the Polish and the Lithuanian delegations have been made. These have not, however, been made public yet. The ACFC Opinion on Poland presented to the GR-H by the President of the ACFC at the Group’s meeting on 2 February 2010 contained a number of recommendations on various issues, such as racially-motivated offfences, census issues, intolerance and xenophobia, Roma discrimination and dialogue issues. 41 The Opinion does not address any explicit kin-state issues, except for one reference to reciprocity. Although interstate relations are not confijirmed in the case of the Resolution on Poland due to the lack of public documents, the available texts do hint at the interstate approach on the notion of kin-state issues, as in the case of Latvia and Lithuania. The substantive issue here is odd in that it focuses on reciprocity. However, the reference is to bordering countries in plural thus leaving some doubt about recurrent bilateralism. Nevertheless, the procedural part of the process clearly indicates that intense consultations have taken place, albeit not clear as to the extent of lateralism. It should be noted that the general debate on the so-called “fall-back” Resolution took place during the fijirst months of 2011 during the same time as the Chair was seeking to fijind a resolve to the draft Resolution on Poland. Moreover, the draft resolutions on Poland and Lithuania were discussed in tandem, perhaps creating some influence on the resolve of either case. E.

Serbia

Serbia joined the Council of Europe on 3 April 2003 but had acceded to the FCNM already on 11 May 2001 before becoming a Member. The FCNM thus went into force on 1 September 2001. The fijirst cycle of monitoring saw a very swift process with submission of fijirst State Report on 16 October 2002 and adoption of the CM Resolution on 17 November 2004. The political process from Opinion-to-Resolution took twelve months. The monitoring under the second cycle began on 4 March 2008 when Serbia submitted its second State Report. 42 On 19 March 2009, the ACFC issued its second

41

See note 39.

42

Second Report Submitted by Serbia Pursuant to Article 25, Paragraph 2 of the [FCNM] Received on 4 March 2008, ACFC/SR/II(2008)001, dated 4 March 2008, at .

The Political Process of Monitoring the FCNM

Opinion on Serbia. 43 The Government of Serbia submitted comments to the Opinion seven months later on 26 October 2009. 44 The CM Resolution was adopted on 30 March 2011, two years after the ACFC Opinion. The third cycle of monitoring began on 1 September 2012. The substantive issues that upheld the process on the draft resolution on Serbia are not known, except for the discussion in the meeting of 7 December 2010 with the Romanian delegation regarding the binding force of PACE Resolution 1632 (2008). Resolution 1632 pertains to Serbia and the issue of Romanian minority councils in Vojvodina and Serbia proper. Thus, the political process in the case of the CM Resolution on Serbia’s implementation of the FCNM seems to centre on the issue of minority councils. While Serbia had managed to adopt the Law on the National Councils of National Minorities, it would appear that the further implementation of the law was an issue. Whether this issue was in fact an interstate issue between Romania and Serbia is not clear. However, the debate on the PA Resolution 1632 (2008) on Romanian minority councils in Vojvodina seems to indicate that also in the case of the Serbian Resolution, the GR-H became the arena for interstate negotiations on the basis of kin-state grievances. F.

The Ukraine

The Ukraine joined the Council of Europe on 9 November 1995 but had signed the FCNM already on 15 September 1995 before becoming a Member. The FCNM was ratifijied on 26 January 1998 and came into force 1 May 1998. The fijirst cycle of monitoring saw a normal process with submission of fijirst State Report on 2 November 1999 and adoption of the CM Resolution on 5 February 2003 with the political process from Opinion-to-Resolution taking 11 months. The monitoring under the second cycle began on 8 June 2006 when the Ukraine submitted its second State Report. 45 On 30 43

ACFC, Second Opinion on Serbia Adopted on 19 March 2009, ACFC/OP/II(2009)001, dated 25 June 2009, at .

44

ACFC, Comments of the Government of Serbia on the Second Opinion of the [ACFC] by Serbia (received on 30 September 2009), GVT/COM/II(2009)002, dated 26 October 2009, at .

45

Second Report Submitted by the Ukraine Pursuant to Article 25, Paragraph 2 of the [FCNM] Received on 8 June 2006, ACFC/SR/II(2006)003, dated 8 June 2006, at .

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May 2008, the ACFC issued its second Opinion on the Ukraine. 46 The Government of the Ukraine submitted Comments to the Opinion six months later on 19 November 2008. 47 The CM Resolution was adopted on 30 March 2011, almost three years after the ACFC Opinion. The third cycle of monitoring started on 7 May 2009 with submission of the State Report. The visit by the ACFC delegation to the Ukraine took place in early 2012, thus rendering the third cycle monitoring outside the norm also. 48 It would appear that the main substantive issue identifijied in the case of the draft Resolution on the Ukraine’s implementation of the FCNM was related to minority language use and education. The political process on the drafting of the Resolution follows the pattern of the other cases analyzed in this chapter. Interstate relations again dominate the process, in this case kin-state issues pertaining to minority language use, including in the media, and language learning by the Russianspeaking minority in the Ukraine. The substantive side of the negotiations were thus highly relevant for the implementation of the FCNM. The procedural aspect of the process was unique in that it included involving the CM at a stage when the text was not acceptable to the Members of the CM. Hence, the draft Resolution was sent back to the GR-H for further consultations and negotiations. G.

Summary of Cases

The substantive analysis of the processes reveals—with the caveat that only open sources were used—what and who upheld progress in the GR-H. All six processes heard arguments and grievances on kin-state issues. In the case of the Resolution on Lithuania perhaps some of the strongest rhetoric was heard from the Polish delegation, whereas in the case of the Resolution on Serbia a vague voice was heard from the Romanian delegation. The case of the process of the Resolution on Poland remains unclear as to the kin-states in action. One can, nevertheless, conclude tenuously that the monitoring processes were upheld by bilateral relations between 46

ACFC, Second Opinion on Ukraine Adopted on 30 May 2008, ACFC/OP/II(2008)004, dated 30 March 2001, at .

47

ACFC, Comments of the Government of Ukraine on the Second Opinion of the [ACFC] by Ukraine (received on 19 November 2008), GVT/COM/II(2008)006, dated 30 March 2011, at .

48

CoE Press Release, “Ukraine: visit of the [ACFC]”, CoE, 23 January 2012, at .

The Political Process of Monitoring the FCNM

Member States, usually neighbouring states seeking to represent kin-state minorities. Moreover, with the exception of the Resolution on Georgia, all kin-state issues pertained to the implementation of the FCNM. The process on Georgia, on the other hand, appears to be stranded on the issue of whether the 2008 conflict between Georgia and the Russian Federation should be mentioned in the CM Resolution on Georgia, with Russia insisting on including such a reference. Another aspect of the processes is timing within the GR-H process, as well as in relation to external events. With regard to the latter, we know that the Georgia process took place in the GR-H after the August 2008 conflict between Georgia and the Russian Federation. As to the remaining fijive cases, external events, such as local political processes in society, as well as in relevant institutions such as parliaments, would be of relevance in order to fully analyze the GR-H processes. Timing within the GR-H process is relevant with regard to kin-state behaviour both in terms of consultations under the auspices of the Chairmanship of the GR-H and in terms of bargaining. Thus, in the case of Georgia whose monitoring process started in 2009, we can establish that the monitoring process of the Russian Federation did not overlap initially. However, the third cycle monitoring of Russia’s implementation of the FCNM began in 2011, and is ongoing. With the process on Georgia still unresolved, this means that the two Resolutions are being processed simultaneously in the GRH. It is, therefore, feasible to ask what has happened during consultations, and are there any ongoing bilateral consultations? Similar circumstances were seen in the case of Lithuania, whose the kin-state issues were raised by the Polish delegation. Here we see overlap in the process on the Resolution on Poland, which began about 13 months after the process on the Resolution on Lithuania was started. This leaves the process open for government bargaining beyond the normal process of making comments to draft texts. When processes run simultaneously, governments may be more motivated towards bilateralism. The Resolutions on Lithuania and Poland were adopted, however, shortly after a change-over in the Lituanian government in 2012. In the case of Latvia, there was no overlap between the processes on Latvia and the Russian Federation. While the delegation of the Russian Federation made a statement on the Latvian draft text during consultations, it is not possible to see any indications of bargaining. Similar, in the case of the Resolution on Serbia, where we identifijied a mild kin-state issue, there is no overlap at all. Finally, in the case of the Resolution on the Ukraine, where the Russian Federation is the kin-state having made statements, there is no overlap, but we know that consultations have taken place.

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VIII.

Conclusions

The aim of this chapter was to begin questioning whether the slowed monitoring process may mean that the FCNM is not enjoying the same level of support that initially it did. This would be done through an examination of actor behaviour and issues in the political process in the GR-H using open sources. It was clear from the beginning that a sampling of six Opinion-to-Resolution processes that have experienced delay in the political process in the GR-H (out of 39 processes), may not in itself be a representative illustration. They represent 15% of the States party to the FCNM. However, 15% is relevant if put in perspective of fijirst and second cycle monitoring, especially if second cycle monitoring follows a fijirst cycle monitoring that adhered to the geneal norm of 12 months. Of the six cases analyzed in this chapter, four had experienced a fijirst cycle political process that followed the norm. Upholding monitoring of international treaties on the basis of bilateral issues clearly goes against the tenets and values of the FCNM instrument and violates international law according to the principles set out in the Vienna Convention on the Law of Treaties (1969). According to the Vienna Convention, parties to international treaties are obliged to refrain from actions that defeat the object and purpose of a treaty. 49 In the case of the FCNM, the object and the purpose of the treaty is to take minority issues out of the state setting of minority-majority relations and elevate them to the international level in order to avoid unilateral and bilateral actions against weak and vulnerable minority groups. With regard to the actors pursuing these political strategies, the apparent agents are the delegations representing Member States in the GR-H. However, as we have noted in the beginning, delegations usually act upon instructions from governments at the central level of the State. This is because the ultimate responsibility of the parties to the FCNM lies with the sovereign State that has signed and ratifijied the instrument. The perpetrators are, therefore, States which have acceded to the FCNM in supposedly good faith. That the political process is not in a sound state of being could perhaps be surmised by the debate in the CM in 2010 on the so-called “fall-back” position and a request to the Secretariat to draw up a legal Opinion on the repercussions of the failure of the CM to adopt a Resolution within a convention control procedure. To recall, the “fall-back” option would allow the CM to pass on an ACFC Opinion to a Member State without comments in the event no draft Resolution could be agreed upon. It is not clear from the open sources what was eventually decided by the CM 49

Preamble and Art. 26, Art. 27 and Art. 31, Vienna Convention on the Law of Treaties, entered into force 27 January 1980, UN, Treaty Series, vol. 1155, 331.

The Political Process of Monitoring the FCNM

and whether a legal Opinion on the repercussions of failure to adopt a Resolution were taken further into consideration. Nevertheless, one could argue that the year 2010 was perhaps a year when the self-confijidence of the GR-H and the CM Deputies was at a rather low level. Finally, the geographic scope of the six cases surveyed suggests some additional points. Firstly, all six cases pertain to Eastern Europe and to kin-state issues in Eastern Europe. Does this imply that kin-state issues are higher on the political agenda in these States? Secondly, three of the cases, Georgia, Latvia and the Ukraine, demonstrated kin-state issues with the Russian Federation, which is a neighbouring State to these Members, and together with Lithuania these States have in common that they were all part of the Soviet Union. Does this imply anything about kin-state issues in Russian politics? Thirdly, all six States under study are among the new Member States of the Council of Europe. To recall, the Council of Europe established the GT-Sages in 1997 with the view to prepare the institution for the influx of new Members and the pressure that this would create on the functioning of the Council of Europe. Does this suggest that the approach to international treaty monitoring difffers from Eastern Europe to Western Europe, from new Member States to old Member states? On the other hand, there is the argument that with the setting of the instrument in an intergovernmental forum, this is to be expected, especially because the FCNM is a framework type instrument and it lacks the leverage of sanctions through a court. Thus, the monitoring process invites to dialogue not only at the technical level, but also at the political level. It is beyond this chapter to settle this debate. Sufffijice it to note that without the full power of positive law behind it, the FCNM remains a “negotiable” instrument. The question is what is seen as negotiable, the provisions or the process?

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Part III Working the Mandate

Chapter Eight The Secretariat and Servicing the Presidents of the Advisory Committee Alain Chablais

I.

Introduction

This contribution intends to address the status and role of the Secretariat of the Framework Convention for the Protection of National Minorities (hereinafter “Framework Convention” or FCNM) in relation to the Presidents of the Advisory Committee on the Framework Convention (hereinafter “Advisory Committee” or ACFC). A meaningful description and analysis of this topic requires a general presentation of the FCNM monitoring mechanism, the Secretariat and the Presidents of the ACFC drawing on the legal framework and mandate (Part II). The establishment and main phases of development of the Secretariat will then be addressed with a view to gaining a fuller picture of the existing human and organizational structure behind the somewhat bureaucratic expression “Secretariat” (Part III). Finally, the work of the Secretariat will be presented in detail on the basis of categories that may sometimes appear rigid as they are not so clearly divided in practice (Part IV). The topic presented in this contribution is original in that the relationship between the Secretariat and the Presidents does not seem to have been commented on yet in scientifijic literature. This is not surprising as the FCNM monitoring mechanism and its implementing regulations are largely silent on this relationship and the Secretariat is hardly visible in the distribution of competences between the monitoring bodies. In practice, however, the way in which this relationship is given life by those concerned is of crucial importance for the smooth functioning of the FCNM machinery.

Tove H. Malloy and Ugo Caruso (eds.), Essays in Honour of Rainer Hofmann Copyright 2013 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-21441-5 pp. 169-180

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II.

Legal Framework and Mandate

A.

The FCNM Monitoring Mechanism

Before setting out the main legal features providing for the work of the Secretariat and the Presidents of the ACFC, it is necessary to put the question into wider perspective, namely that of the FCNM monitoring mechanism as a whole. Articles 2426 FCNM provide for the setting up of a monitoring mechanism that is based on the transmission of periodical State Reports to the Secretary General of the Council of Europe (CoE). The CoE Committee of Ministers (CM) has to evaluate the adequacy of the measures taken by the State Parties and shall be assisted in this task by an advisory committee (the ACFC). The FCNM is therefore characterized by a somewhat peculiar combination, namely a political body (the CM) entrusted with the fijinal responsibility to monitor the implementation of a treaty with the assistance of a non-political body (the ACFC) characterized by its recognized expertise in the fijield of the protection of national minorities. Although not unique,1 this combination is at least unusual with respect to human rights mechanisms both within and outside the CoE. It has some implications concerning, inter alia, the tasks of the Secretariat, which is intended to serve both the ACFC and the CM in order to ensure complementarity and coordination in their monitoring work. B.

The Secretariat

The Secretariat of the FCNM is part and parcel of the Secretariat General of the CoE, as provided for in Chapter VI (Articles 36-37) of the CoE Statute. As a consequence, stafff members working within the Secretariat of the FCNM, including the Executive Secretary, are appointed by and placed under the authority of the Secretary General.2 These arrangements do not guarantee that the ACFC has a say regarding the appointment of the Secretariat, as opposed to the situation for the

1

For example, the European Charter for Regional or Minority Languages (EChRML), which is formally-speaking not a human rights treaty, is organized through a rather similar system and the monitoring of the European Social Charter is based on the work of an expert committee as well as an intergovernmental committee.

2

Statute of the Council of Europe, adopted by the CM on 2 August 1951, ETA No. 1, Art. 36(c) and 37.

The Secretariat and Servicing the Presidents of the Advisory Committee

European Court of Human Rights (ECtHR)3 or the Commissioner for Human Rights, 4 for example. In practice, the appointment process of the Executive Secretary to the FCNM is still conducted by the Secretariat on behalf of the Secretary General up until nomination by the latter. The practice has however evolved and the President of the ACFC is now kept informed of the nomination process by the Directorate General concerned. According to Rule 11 of the Rules of Procedure of the ACFC, “the Secretary General shall provide the Committee with the necessary stafff, including a Secretary […]”. Furthermore, some specifijic tasks are assigned in a non-exhaustive manner to the Secretary, such as notifying the Members of the holding of meetings (Rule 15) and transmitting the working documents for each meeting (Rule 17). The overall picture that comes out of these scarce legal provisions suggests a limited role for the Secretariat that is essentially administrative in nature. This is rather common within the CoE, which can rely on a vast network of national experts with widely recognized expertise in various fijields, including the protection of national minorities. This feature is certainly one of the strengths of the CoE. Against this background, the Secretariat is not meant to assume a highly visible role itself. It is rather meant to help the experts to best fulfijil their tasks on behalf of an organization (the CoE), the functioning of which they are not necessarily familiar with given their limited presence in Strasbourg. The Secretariat must, therefore, offfer all guarantees in terms of clear legal thinking, extensive legal knowledge, sound political judgment, outstanding drafting skills and loyalty. Coupled with the independence of the Secretariat from national governments, these are essential qualities. In sum, the combination of deep national expertise and varied profijiles among the experts, together with the professional qualities and strong dedication of the Secretariat, are vital to ensuring the success of the work of the ACFC. Furthermore, the path to success requires the establishment of a trustful and mutually respectful relationship between the experts and the stafff members.

3

According to Rule 15 of the Rules of the Court, the plenary Court shall elect its Registrar. According to Rule 16, the plenary Court shall also elect two Deputy Registrars.

4

Article 12 of Resolution 99(50) simply provides that an office of the Commissioner for Human Rights shall be established within the General Secretariat of the CoE, but in practice the Commissioner now chooses the Director of his/her office and the Secretary General subsequently ratifies this choice by formally appointing the Director. CM, Resolution (99)50 on the [CoE] Commissioner for Human Rights, adopted by the [CM] on 7 May 1999 at its 104th session.

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C.

The President of the ACFC

As will be shown below under Part IV (B), the function of President of the ACFC is instrumental to the credibility and quality of the entire monitoring mechanism. Neither the FCNM nor Resolution (97)105 provide any guidance as to the exact role and competences attributed to the President. The relevant legal basis is therefore to be found in the Rules of Procedure of the ACFC: the President shall be elected from among the ordinary Members for a term of two years and may be re-elected (Rule 2); the election takes place by secret ballot (Rule 3); and the President shall chair the meetings of the Committee and perform all other functions conferred upon him or her (Rule 6). While the Rules of Procedure clearly confer a leading role on the President, at the same time it is fair to mention that the President is to perform most of his tasks together with the Bureau, which shall consist of the President and the two Vice Presidents (Rule 9). This reduced composition of the Bureau, i.e. three members only, signifijicantly contributes to the cohesion of this organ and a strong sense of ownership of its decisions. The continuity of the work of the Bureau and the smooth transmission of responsibilities between the incumbents are, however, complicated by the somewhat unfortunate rotation system established by Rule 15 of Resolution (97)10: due to the high number of State Parties, the Members of the ACFC cannot complete their two terms of offfijice consecutively, i.e. they have to wait for at least two years before being reappointed. Outgoing Presidents and Vice Presidents therefore have to be replaced at the end of their fijirst Term of Reference before returning to the Advisory Committee and possibly to the Bureau if they so wish. This creates interruptions and overlaps in terms of leadership within the ACFC, while the advancement of the monitoring work of the ACFC would require more stability, including in terms of governance. III.

Creation and Development of a Secretariat

A.

Commencement of Activities in 1998

The Members of the ACFC were elected for the fijirst time in 1998, shortly after the entry into force of the FCNM on 1 February 1998. The Committee held its fijirst meeting in June 1998. A Secretariat was accordingly created in 1998 to provide assistance to 5

CM, Resolution (97) 10: Rules Adopted by the [CM] on the Monitoring Arrangements under Articles 24 to 26 of the [FCNM], Resolution(1997)010, adopted by the CM on 17 September 1997 at the 601st meeting of the Ministers’ Deputies.

The Secretariat and Servicing the Presidents of the Advisory Committee

the monitoring mechanism of the FCNM. It was fijirst made up of only one administrator, who was to act as the Secretary of the ACFC with the assistance of an administrative assistant. The fijirst two meetings of the ACFC focused on procedural matters and working methods. Hence the fijirst tasks of the Secretariat mainly consisted of preparation for the fijirst meetings of the ACFC, the election of the Bureau and the adoption of the Rules of Procedure of the ACFC. All these events took place in 1998. At that time the Secretariat was still part of the Human Rights Section within the then Directorate of Human Rights within the CoE. This meant that the FCNM Secretariat still had a limited autonomy within the organizational structure of the CoE Secretariat. B.

Main Phases of Development

With the receipt of the fijirst wave of initial State Reports in early 1999, it became clear that the workload was growing quickly and that the Secretariat had to be reinforced in order to be able to cope with it. This increasing workload was also the result of the newly established practice of the ACFC to organize country visits. Against this background, the year 1999 saw a signifijicant reinforcement of the Secretariat with the creation of a supplementary administrator post and a documentalist post. Moreover, additional colleagues already working on minority issues in the context of intergovernmental cooperation and assistance activities joined the Secretariat of the FCNM. This led to a substantial strengthening of the team, which also coincided with further ratifijications of the treaty. The year 1999 initiated a welcoming trend of gradual expansion of the Secretariat, both in terms of human and fijinancial resources.6 A landmark in this trend was achieved in 2001 with the appointment of the fijirst Executive Secretary to the FCNM, together with the creation of a few additional new posts. The Secretariat was no longer attached to the Human Rights Section, but became a division on its own. This resulted in an increased autonomy and made it possible to focus increased attention on the FCNM and its monitoring mechanism within the CoE. This trend was also helpful to develop the monitoring work and promote its fijindings both within and outside the CoE. Between 2001 and 2009, numerous developments took place, including frequent changes in the organizational structure of the CoE Secretariat. This has resulted in either decreasing or increasing the level of autonomy enjoyed by the FCNM Secretariat, depending on the number of hierarchical levels added or 6

And this despite the zero-growth budgetary policy (in real terms) that was already in place within the CoE.

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removed above it. Regardless of the bureaucratic complications and administrative obstacles that may have emerged and sometimes unduly complicated the tasks of the Secretariat, the monitoring function was not negatively impacted. Recent developments, which have become more apparent since 2009, include a signifijicant reduction in terms of resources and increased synergies within the Secretariat. This is a general trend within the CoE as a result of budgetary decisions taken by the CM, which concern most if not all sectors of activities. Human rights treaties, such as the FCNM, now seem strongly afffected by such savings and the number of stafff members serving the FCNM has, for example, decreased. As a result of the reform that took place in October 2011, the FCNM Secretariat is now part of the Directorate General of Democracy (DGII), as the Directorate of Monitoring ceased to exist. The Secretariat is in a newly created department comprising the three monitoring bodies: FCNM, European Commission against Racism and Intolerance (ECRI) and the European Charter for Regional or Minority Languages (EChRML). This department is part of the Directorate of National Minorities and Anti-discrimination within the DGII and not within Human Rights. The ACFC recently voiced its concern at these worrying developments, which tend to overlook the human rights nature of the FCNM and its unique monitoring system.7 It is to be hoped that these organizational changes, which are likely to limit the above-mentioned autonomy and working capacity of the FCNM Secretariat, will not negatively impact the work of the ACFC. IV.

The Work of the Secretariat

A.

Main Tasks

1.

Monitoring of the FCNM

From the outset of its activities, the Secretariat has put the main emphasis of its work on the monitoring of the FCNM. The initial stages of any new monitoring mechanism are crucial and it was considered necessary to rapidly convert the FCNM from a seemingly weak, somewhat clumsily formulated, treaty into a working tool that could be applied in practice by the stakeholders concerned. To make this possible, the ACFC had to become quickly operational and develop clear working methods to examine the numerous initial State Reports, which had been submitted in 1999, 7

See ACFC, 8th Activity Report Covering the Period 1 June 2010-31 May 2012, ACFC/ INF/2012/001, dated 31 May 2012, paras. 44-46.

The Secretariat and Servicing the Presidents of the Advisory Committee

using a consistent approach. Based on Rule 35 of its Rules of Procedure, the ACFC immediately established country-specifijic working groups of no more than four to fijive Members each. Thematic working groups were also set up, but it did not prove helpful to work on thematic issues so early: it became clear that more country-bycountry monitoring work had to be performed before formulating a thematic approach. Although provided for in Rule 35, the option of appointing Rapporteurs was never used. The overwhelming feeling was that this would be at odds with the collective dimension of the work of the ACFC and the subtle balance (in terms of geographical origin, gender, linguistic and professional background) that was sought in the composition of the working groups. The work in working groups rapidly proved its efffijiciency in practice, notably in conducting country visits and preparing draft Opinions. A spokesperson was nominated within each working group with a view to introducing the delegation during country visits and presenting the draft Opinion to the plenary. Each working group was also served by a stafff member acting as Secretary, whose main task was to prepare the country visit and subsequently the draft Opinion. During the following years, the country-specifijic monitoring work became quite demanding in terms of investment from the Secretariat, but it was certainly the most interesting and challenging part of the work. Thematic work began later, formally starting in 2003 but was given increased attention only from 2005-2006. The monitoring activity of the CM started in 1999, once the ACFC had established its own practice following its fijirst country visits and the adoption of a fijirst set of Opinions. The CM became involved with the issue in the second semester of 2000, i.e. once the fijirst country-specifijic Opinions had been transmitted to it. The fijirst country-specifijic Resolutions were adopted by the CM only in autumn 2001. A great deal of work was necessary during this period to reach an agreement on the main rules and principles applicable to the monitoring work of the CM. This was largely achieved through the adoption of a CM Decision in 2001,8 which determined some key procedural principles, such as the introduction of the Opinion by a representative of the ACFC, the possibility to submit written Comments for the State concerned and the publication of the Opinion and the Comments, as well as the follow-up procedure. The preparation of the fijirst CM Resolutions and the main principles applicable to this procedure required lengthy discussions and careful analyses within the Secretariat. It was difffijicult to reconcile the scientifijic, detailed approach followed by the ACFC in its fijirst Opinions (including in its draft conclusions and 8

See Decision adopted by the Ministers’ Deputies on 12-14 June 2001 at their 756th meeting.

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recommendations intended for the CM) with the essentially political approach of the CM. This body is indeed made up of diplomats usually with limited knowledge of the topic, eagerness to defend national interests and little interest in the minority situation prevailing in other State Parties without kin-minorities. It took therefore nearly one year to achieve the fijine-tuning that enabled, on the one hand, the ACFC to formulate its Opinions into more condensed messages intended for the CM and, on the other hand, for the CM to accept a wider endorsement of the important work carried by the ACFC in addition to a limited number of more targeted recommendations. The Secretariat, the task of which is to serve both the ACFC and the CM in its monitoring work, did play a crucial role in this respect and endeavoured to reach a balanced result built on complementarity between these two bodies. Regarding the overall work of the Secretariat pertaining to the monitoring mechanism, it is clear that the bulk has been devoted to the ACFC and that this is still the case today. This is explained by several factors, including the above-mentioned time sequence which required from the outset a lot of energy and time-investment for the successful commencement of the work of the ACFC. By contrast, the CM was already functional from the creation of the CoE and benefijited from the assistance of its own Secretariat. There is probably another, more telling reason explaining the tendency of the FCNM Secretariat to provide, as a matter of priority, strong support to the ACFC: the idea that the added value and main factor contributing to the success of this treaty among those concerned (including national minorities themselves) can only come from a strong committee of independent experts (the ACFC) under the guidance of visionary Presidents and with the full assistance of committed stafff members. This common perception of the Secretariat’s role among its own Members does not mean that the CM was neglected; quite the contrary was true, given the energy spent by Secretariat Members to prepare numerous draft Resolutions and to negotiate at length on sometimes tiny linguistic subtle changes. The overall perception was simply that more had to be done with the ACFC in order to reach tangible results for the benefijit of the FCNM machinery, and even the CoE as a whole. 2.

Assisting the ACFC in Developing Contacts

Another important task of the Secretariat was, from the very beginning, to facilitate and encourage the development of contacts and relations with a range of actors. This was only possible together with the personal commitment of the Bureau Members and individual Members of the ACFC. Regular contacts with non-governmental organizations (NGOs) were considered essential and ACFC Members working with NGOs in their professional capacities were extremely helpful in developing initia-

The Secretariat and Servicing the Presidents of the Advisory Committee

tives in this fijield, such as training seminars on the FCNM intended for NGOs.9 Due to their professional background, other Members were crucial for developing contacts with academics as it was important to raise the awareness about the FCNM and its monitoring work among the scientifijic community. Contacts with other human and minority rights bodies were given particular attention as the FCNM had to establish itself both within the CoE (notably in relation to the CoE Commissioner for Human Rights, the EChRML and the ECRI) and in relation to the corresponding OSCE and UN institutions. The need for such contacts is not formally entrenched in the legal texts, except the cooperation with the EChRML Committee, which is explicitly provided for by Rule 39 of the Rules of Procedure of the ACFC. Little by little, more regular and frequent contacts have been established with other CoE human rights bodies. For example, regular meetings between the Presidents of monitoring bodies have been organized by the CoE Directorate General of Human Rights and Rule of Law from 2008.10 Finally, it was of course essential to develop a solid and trustful relationship through the ACFC and the CM with a view to reinforcing the impact of the FCNM and its monitoring results. Due to the size and workload of both the CM and the ACFC, this cooperation and these regular contacts have mainly been established and maintained through the incumbent President of the ACFC and that of the Rapporteurs Group on Human Rights (GR-H) of the Ministers Deputies. Looking at this aspect of the work of the Secretariat, it is obvious that the involvement of the Secretariat has been crucial, especially in building fruitful cooperation with the CM and promoting contacts with other human rights bodies. Such contacts indeed require careful preparation and detailed briefijings based on fijirsthand information that the Secretariat can offfer to the incumbent ACFC President and Bureau Members, who do not work at the headquarters of the CoE in Strasbourg and are not necessarily familiar with all the implications. On the other hand, it is important for the Secretariat to be able to count on the talent and active involvement of the incumbent President and Bureau Members, since their performance in those contacts signifijicantly contributes to the credibility of the work of the ACFC 9

Reference is not made here to the direct contacts held by the ACFC during its country

10

Such meetings usually gather the following bodies: European Committee for the Preven-

visits with NGOs since this relates to the monitoring work of the FCNM (see item 1 above). tion of Torture and Inhuman or Degrading Treatment or Punishment (CPT), the Group of Experts on Action against Trafficking in Human Beings (GRETA), the Group of States against Corruption (GRECO), the Committee of Experts on the Evaluation of Anti-Money Laundering Measures (MONEYVAL), European Committee of Social Rights, ACFC, EChMRL Committee and ECRI.

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as a whole and, ultimately, of the FCNM machinery. It is fair to say that successive Presidents and Bureau Members have taken this role very seriously and spared no effforts in defending the work of their colleagues of the ACFC. 3.

Intergovernmental and Cooperation Activities

Among the various tasks of the Secretariat of the FCNM, one should not overlook the intergovernmental sector. This work has mainly consisted of servicing the Committee of Experts on Issues pertaining to the Protection of National Minorities (DH-MIN), i.e. the intergovernmental committee on minority issues which was established as a sub-committee under the Steering Committee for Human Rights (CDDH) and convened twice a year in Strasbourg. The Terms of Reference of the DH-MIN have now expired and its work has been suspended. The ACFC was only marginally involved with the work of the DH-MIN. In addition to intergovernmental work, the FCNM Secretariat is also involved in organizing, planning and supporting a range of cooperation activities intended to promote the rights of persons belonging to national minorities. Such activities, which often benefijit from external funding and voluntary contributions from CoE Member States, may take diffferent forms: follow-up activities, awareness-raising seminars, training sessions for NGOs, translation of FCNM and/or monitoring results into national and minority languages, etc. As such, it is an important, complementary part of the monitoring work. The responsibility to design and implement these activities lies with the Secretariat since this aspect does not, strictly speaking, form part of the FCNM monitoring work. It is, however, important that the Secretariat can rely on the participation of individual Members of the ACFC to take part in such activities. 4.

Administrative and Budgetary Tasks

Finally, the work of the Secretariat includes signifijicant involvement in administrative, budgetary and other reporting tasks, which has grown over time. This is not surprising for an international organization like the CoE, which certainly has to be vigilant as to the way in which its scare resources are spent. This part of the work is perhaps not the most interesting one, although it is quite important. It sometimes requires a great deal of inventiveness to be able to set up and fijinance various kinds of activities (including for the ACFC) given the rigid fijinancial regulations and budgetary framework of the CoE. The ACFC is not involved at all in those administrative and budgetary matters, which makes it possible for its Members to concentrate on their monitoring work.

The Secretariat and Servicing the Presidents of the Advisory Committee

B.

A Close Relationship between the Secretariat and the President and Vice Presidents of the ACFC

In view of the foregoing, one can easily understand the importance of the relationship between the Secretariat and the incumbent President and Vice Presidents. This relation must give the impetus and set the objectives for the work of the ACFC. Even though the collective dimension and sense of cohesion of the ACFC remain important and must be given due attention, its guidance and leadership are indeed essential. The President and Vice Presidents must complement one another and the latter must be able to substitute for the President in every situation. This is the case, inter alia, when the State in respect of which the President has been elected is under scrutiny before the ACFC or the GR-H. For the above-mentioned relationship to be as fruitful as possible, it is necessary for the Secretariat to be open to new ideas, ways of thinking and initiatives that come from the President and Vice Presidents, even when such initiatives may look unusual or lead to certain internal complications within the CoE. Otherwise a body like the ACFC would probably be less creative. The President and Vice Presidents, for their part, must remain sensitive to Secretariat advice as to the overall institutional framework in which the ACFC conducts its work, in particular the implications of their situation in a complex organization like the CoE with several key institutions. Secretariat advice is also crucial in terms of relations with governments, both collectively (with the CM and GR-H) and individually, i.e. in work country-by-country. When the relationship is understood in this way, it provides enrichment for both the Secretariat and the ACFC Bureau Members, while at the same time reinforcing the impact and quality of the work of the ACFC as a whole. From its creation in 1998, the ACFC has had four Presidents: Rainer Hofmann (1998-2004 and 2010-2012), Asbjørn Eide (2004-2006), Alan Phillips (2006-2010) and Athanasia Spiliopoulou Åkermark (2012-present). All have shown outstanding commitment to the protection of national minorities and spared no effforts to advance the interpretation of the FCNM and defend the work and independence of the ACFC. They have all left marks at the ACFC through their human and personal qualities. The Secretariat, for its part, has been acquainted with their own styles, personalities and working methods. This is particularly true for the Executive Secretary to the FCNM, who works in closely with the President in many respects, such as preparation of the ACFC plenary meetings, Bureau meetings, Activity Reports and presentations to the CM and GR-H, assistance in external relations, etc.

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C.

A Privileged Relationship with Rainer Hofmann as the First ACFC President

As the fijirst President of the ACFC, Rainer Hofmann has clearly paved the way for FCNM monitoring. He has served for eight years as ACFC President. His influence on the “jurisprudence” of the ACFC has been decisive and he has profoundly marked the function of President. Due to his numerous interventions before the CM and GR-H based on deep legal knowledge and drawing on fijirst-hand information gathered during country visits, he has taken a leading role in establishing the authority of the ACFC and defending its independence. His communicative enthusiasm and constant quest for integration and participation have contributed to a strong sense of ownership of the Opinions by all ACFC Members. This is perfectly illustrated by the overwhelming majority by which virtually all country-specifijic Opinions have been adopted, which testifijies to a real culture of consensus and dialogue within the ACFC itself. The Secretariat as a whole—and not just the Executive Secretary—has constantly been included in his effforts towards wide inclusion and it is no surprise that stafff members have from the outset adhered to the idea of working as a team together with the ACFC. All successive Presidents have largely followed suit and also based their action on this “acquis” in terms of governance. A couple of anecdotes experienced by the Secretariat may perhaps usefully illustrate Rainer Hofmann’s style and personality in a more telling manner than lengthy descriptions. For example, he always encouraged both ACFC Members and stafff members to gather outside the context of plenary meetings in more informal settings while in Strasbourg. This contributed to the development of enriching interpersonal relations while at the same time facilitating the exchange of information and the idea of working as a team. Also, while addressing all sorts of interlocutors, Rainer Hofmann always had the elegance to thank the Secretariat for its contribution. Such words may appear as a lip service to some people, but coming from Rainer Hofmann, they never were.

Chapter Nine A Frame with Multiple Shapes: The UNMIK-CoE Agreement Ugo Caruso

I.

Introduction

From its creation to the more recent developments, the fate of the Framework Convention on the Protection of National Minorities (hereinafter the “Framework Convention” or FCNM) continues to be closely interconnected with developments in the former Yugoslavia. However, while the analysis of the conditions of minorities in the region has been highly debated and studied, less consideration has been devoted to inter-organizational developments operating in the area on minority rights issues. In this case, by studying the uniqueness represented by the special agreement concluded by the United Nations Interim Administration Mission in Kosovo (UNMIK) and the Council of Europe (CoE) on the technical arrangements related to the FCNM, a broader consideration on the general state of the art inter-organizational co-operation on the issue of protection of minority rights will be pursued. In doing so, crucial attention will be devoted to the informal process of co-operation generated by outstanding fijigures like Rainer Hofmann. With no surprise, every time the impact coming from such recognized experts is so meaningful, further observations can be made on the general direction that international protection of minority rights is taking. II.

The Framework Convention in Kosovo

A.

The Constitutional Framework for Provisional Self-Government

Since June 1999, and with the adoption of the United Nations Security Council (UNSC) Resolution 1244, UNMIK was established to provide an international interTove H. Malloy and Ugo Caruso (eds.), Essays in Honour of Rainer Hofmann Copyright 2013 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-21441-5 pp. 181-203

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im administration for Kosovo.1 Headed by a Special Representative of the SecretaryGeneral (SRSG), UNMIK was held responsible in particular for: a) promoting the establishment, pending a fijinal settlement, of substantial autonomy and self-government in Kosovo, taking full account of Annex 2 and of the Rambouillet accords; b) performing basic civilian administrative functions where and as long as required; [... and] j) protecting and promoting human rights.2 Under its mandate, UNMIK was further requested to “provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo”.3 For the relevance of the present analysis it is worth noting that the establishment of UNMIK was foreseen as an “interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia”. 4 UNSC Resolution 1244, inter alia, reafffijirms the territorial integrity of the then Federal Yugoslav Republic and is still valid.5 Mandated to protect and promote human rights, the UN administration started, in the exercise of its regulatory powers, to refer to international human rights standards. In the case of the FCNM, in 2001 the Convention was formally mentioned in the regulation establishing the Constitutional Framework for Provisional Self-Government in Kosovo (hereinafter the “Constitutional Framework”) for the purpose of “developing meaningful selfgovernment in Kosovo pending a fijinal settlement”.6 1

UNSC Resolution 1244 recognized the sovereignty and territorial integrity of the then Federal Republic of Yugoslavia (now Serbia) and established the authority of UNMIK, as the international civil presence, to provide an interim administration for Kosovo. See UNSC, Resolution 1244, S/RES/1244(1999), dated10 June 1999.

2

Ibid.

3

UNSC, Resolution 1244, op. cit. note 1, para. 10. See also Rapporteur Group for Democratic Stability (GR-EDS), Applicability of [CoE] Conventions in Kosovo, GR-EDS(2004)14, dated 19 April 2004, para. 4.

4

UNSC, Resolution 1244, op. cit. note 1.

5

UNSC, Resolution 1244, op. cit. note 1. See also Annelies Verstichel, “A Reading of the Comprehensive Proposal for the Kosovo Status Settlement in light of the OSCE HCNM Bolzano/Bozen Recommendations on National Minorities in Inter-State Relations”, in Francesco Palermo and Natalie Sabanadze (eds.), National Minorities in Inter-State Relations (Martinus Nijhoff Publishers/OSCE HCNM, Leiden/Boston, 2011), 185-192.

6

UNMIK, Regulation No. 2001/9 on a Constitutional Framework for Provisional Self-Government in Kosovo, UNMIK/REG/2001/9, dated 15 May 2001. See also European Commission for Democracy through Law (Venice Commission), The Human Rights Situation in

The UNMIK-CoE Agreement

In 2001, in replacing the provisional Joint Interim Administration Structures,7 the Constitutional Framework established the Provisional Institutions of SelfGovernment (PISG).8 According to Chapter 3 of the Constitutional Framework, PISG were to observe and ensure internationally recognized human rights and fundamental freedoms as set forth in several international human rights treaties, including the FCNM.9 Through UNMIK Regulation 2001/9, the provisions on rights and freedoms set forth in these instruments are directly applicable in Kosovo as part Kosovo: Background information and issues for discussion, Opinion No. 280/2004, CDLDI(2004)001, dated 4 June 2004, para. 13. 7

Established in December 1999 to function as a formal structure for the administration of Kosovo, the Joint Interim Administrative Structures provided a framework for sharing the responsibility for provisional administration with representatives of Kosovar society.

8

UNMIK, Regulation No. 2001/9, op. cit. note 6, chapter 2. This Regulation set up, as such, PISG, the Assembly, the President of Kosovo, the Government, the Courts, and other bodies and institutions as set forth in the Constitutional Framework, in particular the municipalities. Their respective areas of competences are determined in Chapter 5.1 of the Constitutional Framework. PISG were mandated to “(a) exercise their authorities consistent with the provisions of UNSCR 1244(1999) and the terms set forth in the Constitutional Framework; (b) promote and fully respect the rule of law, human rights and freedoms, democratic principles and reconciliation; and (c) promote and respect the principle of the division of powers between the legislature, the executive and the judiciary”.

9

Namely, the Universal Declaration on Human Rights (UDHR), the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and its Protocols, the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the European Charter for Regional or Minority Languages (EChRML). Other relevant human rights instruments, such as the European Social Charter and the International Covenant on Economic, Social and Cultural Rights (ICESCR), have been left out. See also Wolfgang Benedek, “Final Status of Kosovo: The Role of Human Rights and Minority Rights”, in 80(1) Chicago-Kent Law Review (2005), 215-233, at 218. With regard to the ICESCR, when asked by the relevant treaty body about the omission of the ICESCR from the Chapter 3 of the Constitutional Framework, UNMIK explained that “even though Chapter 3 of the Constitutional Framework does not refer to the Covenant, the Covenant is part of the applicable law in Kosovo pursuant to UNMIK Regulation No. 1999/24”. See Committee on Economic, Social and Cultural Rights (CESCR), Replies by UNMIK to the list of issues (E/C.12/UNK/Q/1) to be taken up in connection with the con-

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of the Constitutional Framework.10 The latter further incorporates the protections provided under particular international human rights instruments in the applicable law of Kosovo11 and, in Chapter 9.4.1, stipulates that the courts are responsible for the administration of justice in Kosovo in accordance with the applicable law, here including the Framework Convention and other international instruments.12 Finally, Chapter 4 of the Constitutional Framework is devoted to rights of communities and their members. The FCNM, in this case, functioned as primary source of inspiration for the formulation of the Chapter on the rights of communities and their members.13 In this context, as the ultimate authority to ensure compliance with UNSC Resolution 1244,14 the SRSG—based on his direct responsibilities under the Resolution—has been mandated to protect and promote human rights and to support peace-building activities, and retains the authority to intervene in the exercise of self-government for the purpose of protecting the rights of communities and

sideration of the document submitted by UNMIK (E/C.12/UNK/1), E/C.12/UNK/Q/1/Add.1, dated 3 December 2008, para. 3. 10

Ibid., Chapter 3.3. See UNMIK, Report Submitted by the UNMIK pursuant to Article 2.2 of the Agreement between UNMIK and the [CoE] related to the FCNM, ACFC(2005)003, dated 2 June 2005, at 25. For further information see Joseph Marko, “The Kosovo Constitution in a Regional Perspective”, in 33 Review of Central and East European Law (2008), 437-450.

11

UNMIK, Report Submitted by the UNMIK, op. cit. note 10, at 25.

12

Ibid., at 20.

13

As from Chapter 4.1 of the Constitutional Framework, minorities are here defined as “communities of inhabitants belonging to the same ethnic or religious or linguistic group”. With regard to the implementation of such rights, on the basis of Chapter 4.6, PISG were to “ensure that all Communities and their members may exercise the rights specified above [Chapter 4]. The Provisional Institutions also shall ensure fair representation of Communities in employment in public bodies at all levels”.

14

In Chapter 12 on the Authority of the SRSG, the Constitutional Framework states that “the exercise of the responsibilities of the Provisional Institutions of Self-Government under this Constitutional Framework shall not affect or diminish the authority of the SRSG to ensure full implementation of UNSCR 1244(1999), including overseeing the [PISG], its officials and its agencies, and taking appropriate measures whenever their actions are inconsistent with UNSCR 1244(1999) or this Constitutional Framework”. See Benedek, op. cit. note 9, at 221.

The UNMIK-CoE Agreement

their members.15 Together with the power to conclude agreements with states and international organizations “in all matters within the scope of UNSC Resolution 1244(1999)”, the SRSG also oversees the fulfijilment of commitments in international agreements entered into on behalf of UNMIK.16 B.

The Kosovo “Standards before Status” Policy

Created as a series of benchmarks to measure the progress achieved by Kosovar institutions, the “Standard before Status” policy, although formulated in 2001, was offfijicially endorsed in December 2003 with the publication of the “Standards for Kosovo” document, followed by the “Kosovo Standards Implementation Plan” (KSIP) in March 2004.17 The idea behind the formulation of the standards was to pursue a vision of a “truly multi-ethnic, stable and democratic Kosovo which is approaching European standards and involved progressive transfer of responsibilities from UNMIK to the PISG”.18 Being issued in the aftermath of the March 2004 violence, the KSIP was to be a benchmark of progress and function as a blueprint for future discussions on the fijinal status of Kosovo.19 The KSIP set the actions and policies needed to reach the standards envisaged in the 2003 document “Standards for Kosovo”. Moreover, the KSIP, in its Standards IV Action 10.1, invited the “[CoE], with support from PISG and UNMIK, to include Kosovo in the monitoring process for the Framework Convention”.20 Moreover, the 2005 comprehensive review undertaken by Ambassador Kai Eide on the implementation of the policy revealed major obstacles in terms of credibility and achievement of the standards.21 Relevant for the topic of 15

UNMIK Regulation No. 2001/9, op. cit note 6, Chapter 4.6. See Rainer Hofmann, “Protecting Minority Rights in Kosovo: The Agreement of 23 August 2004 between the [CoE] and UNMIK on Technical Arrangements Related to the [FCNM]”, in Klaus Dicke, et al. (eds.), Weltinnenrecht. Liber amicorum Jost Delbrück (Duncker & Humblot Verlag, Berlin, 2005), 347-370, at 348.

16

UNMIK, Regulation No. 2001/9, op. cit. note 6, para. 8.1.

17

Jürgen Friedrich, “UNMIK in Kosovo: Struggling with Uncertainty”, 9 in Maw Planck Yearbook of United Nations Law (2005), 225-293, at 260-261. The KSIP was issued in consultation with the PISG and the Contact Group. See also UNMIK, op. cit. note 11, at 41.

18

UNMIK, [KISP], dated 20 March 2004, at 2. See also Benedek, op. cit. note 9, at 225.

19

Ibid.

20

UNMIK, Report Submitted by the UNMIK, op. cit. note 10, at 41.

21

UNSC, Letter from the Secretary-General addressed to the President of the Security Council, S/2005/635, dated 7 October 2005.

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the present research, the KSIP specifijically committed to the participation of Kosovo in the monitoring and implementation process of the FCNM and relative “recommendations resulting from that process”.22 In March 2007, the Comprehensive Proposal for the Kosovo Status Settlement was presented by the UN Secretary General to the UNSC.23 Article 2 of Annex 1 of the Comprehensive Proposal on the “Constitutional Provisions” reafffijirmed the applicability of the Framework Convention together with other international instruments and mechanisms.24 Equal consideration was given to the Framework Convention in Articles 2225 and 58.226 of the 2008 Constitution of Kosovo.27 Moreover, the Constitution of Kosovo in its Article 143, Paragraph 2, establishes that “the provisions of the Comprehensive Proposal for the Kosovo Status Settlement [...] shall take 22

UNMIK, [KSIP], op. cit. note 18, annex 1. See also Antti Korkeakivi, “Frameworking: Review of the Monitoring Process of the [CoE FCNM]”, in 5 European Yearbook of Minority Issues (2005/6), 255-273, at 262. See ACFC, Opinion on the Implementation of the [FCNM] in Kosovo adopted on 25 November 2005, ACFC/OP/I(2005)004, dated 2 March 2006, para. 9.

23

UNSC, Letter dated 26 March 2007 from the UN Secretary General addressed to the President of the Security Council addendum Comprehensive Proposal for the Kosovo Status Settlement, S/2007/168/Add.1, dated 26 March 2007.

24

Ibid. The other instruments formally mentioned in the Comprehensive Proposal are the UDHR, the ECHR and its Protocols, the ICCPR, the ICERD; the CEDAW, the CRC, and the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment. On the omission of the ICESCR from the list, UNMIK gave the following explanation: “UNMIK had no official involvement in the drafting of the Kosovo Constitution [...] that came into effect on 15 June 2008 and is accordingly not in a position to comment on the official reason behind the omission in Article 22 of the Kosovo Constitution as adopted by the Assembly of Kosovo on 9 April 2008.” See CESCR, Replies by UNMIK, op. cit. note 9, para. 4.

25

Article 22 of the Constitution of Kosovo. As from the constitutional provision, human rights and fundamental freedoms guaranteed by the international agreements and instruments have, in case of conflict, priority over the provisions of laws and other acts of public institutions.

26

As from Article 58.2, the Republic of Kosovo should “respect the standards set forth in the [CoE FCNM] and the [EChRML]”.

27

For an interesting analysis please see Verstichel, op. cit. note 5, 185-192; Marko, op. cit. note 10; Emma Lantschner, “Protection of Minority Communities in Kosovo: Legally Ahead of European Standards – Practically Still a Long Way to Go”, in 33 Review of Central and East European Law (2008), 451-490.

The UNMIK-CoE Agreement

precedence over all other legal provisions in Kosovo”. The constitutions, laws and other legal acts are also to be interpreted in compliance with the Comprehensive Proposal.28 In addition, in the development of national legislation on minorities, the consideration and reference to the Framework Convention has been indeed considerable.29 C.

Status Neutrality and the 2008 Kosovo Declaration of Independence

The 2008 Kosovo Declaration of Independence has posed a real challenge to the ability of the UN administration to exercise its authority and prompted the SRSG to advance a reconfijiguration of the international civil presence in Kosovo.30 Facing the bizarre creation of parallel realities characterized by the persistence of the UN administration, on one side, and the work of the recently established Kosovo institutions, on the other side,31 the Advisory Committee on the Framework Convention (hereinafter “Advisory Committee” or ACFC) has decided to continue monitoring the FCNM and the situation of minorities in Kosovo “regardless of developments relating to the status of that territory”.32 Such a “status neutral” approach is characteristic of the pragmatism the ACFC has pursued in monitoring the implementation of the FCNM and of the foremost attention devoted to the respect of the rights of persons belonging to minorities.33 28

See para. 3 of Article 143 of the Constitution of Kosovo. For a more detailed analysis see Marko, op. cit. note 10, at 446.

29

See for instance the 2008 Law on the Protection and Promotion of the Rights of Communities and their Members in Kosovo. For a detailed analysis, see Lantschner, op. cit. note 27. See also Florian Bieber, “The role of the FCNM in selected countries of South-Eastern Europe after two monitoring cycles”, paper presented for the [CoE] conference Enhancing the Impact of the Framework Convention, 9-10 October 2008, Strasbourg, at 8.

30

Ugo Caruso, “New realities on the ground: the International Community in Kosovo”, paper presented at final conference for the EU-funded project MIRICO – Human and Minority Rights in the Life Cycle of the Ethnic Conflict (MIRICO), hosted by the University of Frankfurt am Main, Wilhelm Merton Centre for European Integration and International Economic Order, 24-25 October 2008.

31

Verstichel, op. cit. note 5, at 189.

32

ACFC, 32nd Meeting Report, ACFC/MR(2008)002, 26-30 May 2008, para. 8.

33

In October 2008, the ACFC clarified that co-operation should have continued not only with UNMIK, but also with the ministries in Kosovo. See ACFC, 33rd Meeting Report, ACFC/MR(2008)003, 6-9 October 2008. The ACFC clarified that any reference to Kosovo

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The work of the ACFC is also important in consideration of the complicated “dialogue” between Serbia and the Kosovo institutions, and the support coming from Belgrade for parallel institutions and structures in the northern part of the territory.34 Ensuring continuity in work for the ACFC is even more relevant in light of the difffijicult inter-organizational co-operation witnessed in Kosovo after the declaration of independence. With the entry of a new international actor in the fijield, namely the International Civilian Offfijice (ICO), inter-organizational co-operation had to rely on just informal contacts and could not rely, due to the diffferent approaches to the status settlement, on more coherent and comprehensive forms of co-operation.35 This situation was underlined by the ACFC in its second Opinion on Kosovo; in its consideration on the implementation of Article 1 of the Framework Convention, the ACFC has found that: In the context of the current institutional arrangements linked to the international presence in Kosovo, the Framework Convention’s implementation has sufffered from the lack of necessary coordination and co-operation. The Advisory Committee fijinds it therefore essential that particularly important issues, such as minority protection, receive due attention by all stakeholders. […] The Advisory Committee considers it essential that the changes in the international presence in Kosovo do not have negative consequences on the protection of persons belonging to minority communities and that the continuation of the monitoring process of the Framework Convention is ensured.36 should to be understood in “full compliance with [UNSC] Resolution 1244 and without prejudice to the status of Kosovo”. See Francoise Kempf, “Review of the Monitoring Process of the [CoE FCNM]”, in 7 European Yearbook of Minority Issues (2007/8), 483-489, at 491. 34

Jeremie Zeitoun, et. al., ECMI Kosovo, Socioeconomic Conditions in Northern Kosovo, (ECMI Kosovo, Pristina, 2013). It is important to mention the creation in June 2008 of the Assembly of Community of Municipalities of the Autonomous Province of Kosovo and Metohija. This body, in proclaiming itself as the “representative body of the citizens of the Republic of Serbia in the Autonomous Province of Kosovo and Metohija”, is referring to Kosovo as part of Serbia. See Declaration on Establishing the Assembly of the Community of Municipalities of the Autonomous Province of Kosovo and Metohjia, Kosovo Compromise, 1 July 2008, at http://www.kosovocompromise.com/cms/item/topic/en.ht ml?view=story&id=1072§ionId=2.

35

Lantschner, op. cit. note 27, at 490.

36

ACFC, 2nd Opinion on Kosovo Adopted on 5 November 2009, ACFC/OP/II(2009)004, dated 31 May 2010, para. 43.

The UNMIK-CoE Agreement

III.

The UNMIK-CoE Agreement related to the FCNM

A.

Overview of the Agreement

Largely inspired by Article 26 FCNM, the UNMIK-CoE37 Agreement on technical arrangements related to the FCNM (hereinafter “the Agreement”) was signed in August 2004.38 By signing the Agreement, UNMIK has not become party to the Framework Convention, but has consented to be legally and politically bound by the provisions of the FCNM and relative obligations coming from their implementation in Kosovo.39 The Agreement was also signed without prejudice to the future status of Kosovo. 40 The Agreement, entered into force with its signature, consists of a preamble and an operative part of seven substantive provisions.41 The preamble of the Agreement recalls the commitment undertaken by UNMIK and the PISG to “exercise their respective responsibilities under UNSC Resolution 1244 (1999) and the Constitutional Framework in compliance with the principles contained in the FCNM”. 42 With regard to its operative part, by signing the Agreement UNMIK afffijirms “on behalf of itself and the PISG” that their respective responsibilities will be exercised in compliance with the principles contained in the Framework Convention. 43 The implementation of the Agreement should then count on the active role of both 37

In April 2004, the CoE made clear that the organization had accepted “to consider monitoring arrangements, required by the specific circumstances of Kosovo, only in respect of CoE conventions that have been ratified by Serbia and Montenegro”. See GR-EDS, Applicability of [CoE] Conventions in Kosovo, op. cit. note 3, para. 9.

38

Agreement between [UNMIK] and the [CoE] on technical arrangements related to the FCNM, at . The very same day, UNMIK and the CoE signed a second Agreement related to the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment.

39

Here with regard to both UNMIK responsibilities and those transferred to the PISG. See Hofmann, op. cit. note 15.

40 41

GR-EDS, Applicability of [CoE] Conventions in Kosovo, op. cit. note 3, para. 3. Alain Chablais, “Review of the monitoring process of the [CoE FCNM]”, in 4 European Yearbook of Minority Issues (2004/5), 515-541, at 519. Article 4 to 7 of the Agreement may be considered as traditional final clauses. See Hofmann, op. cit. note 15.

42

Agreement between [UNMIK] and the [CoE], op. cit.. note 38.

43

Ibid., Article 1. See also UNMIK, op. cit. note 10, para. 33.

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international and local actors and, by doing this, on a joint assessment of minority rights situation in Kosovo. 44 It is then fundamental, in the opinion of the AFCF, that the observance of the FCNM “is clearly included as a key obligation of all future authorities, both international and local, dealing with minority issues in Kosovo”. 45 In this sense, the creation of several institutional bodies on minority issues within the PISG, due to the implementation of the FCNM in Kosovo, has been positively evaluated by ACFC. 46 Monitoring modalities were formalized in Article 2 of the Agreement and mostly concerned the monitoring role of the Committee of Ministers (CM)—assisted by the ACFC—and the public nature of the report to be submitted by UNMIK. 47 The same publicity was formally established in Article 3 of the Agreement and with regard to the conclusions and recommendations of the CM, the Opinions of the ACFC, and any related comments by UNMIK. 48 In the Agreement, the possibility for

44

ACFC, Opinion on the Implementation of the [FCNM] in Kosovo, op. cit. note 22, para. 10. See also Venice Commission, op. cit. note 6, para. 83.

45

ACFC, Opinion on the Implementation of the [FCNM] in Kosovo, op. cit. note 22, para. 8. See also Resolution ResCMN(2006)9 on the implementation of the [FCNM] in Kosovo (Republic of Serbia), Adopted by the CM on 21 June 2006 at the 969th meeting of the Ministers’ Deputies.

46

For instance, the Working Group on the Implementation of the FCNM within the Advisory Office for Good Governance in the Office of the Prime Minister. See Progress Report on the Implementation of the [FCNM] in Kosovo submitted by [UNMIK] (received on 21 July 2008), ACFC2008(2008)001, dated 10 December 2008, at 8.

47

Agreement between [UNMIK] and the [CoE], op. cit. note 38, Art. 2.2. Such monitoring modalities reflected provisions of the FCNM on the monitoring States obligations under the FCNM formalized in the Resolution (97) 10: Rules Adopted by the [CM] on the Monitoring Arrangements under Articles 24 to 26 of the [FCNM], adopted by the CM on 17 September 1997 at the 601st Meeting of the Ministers’ Deputies. See Hofmann, op. cit. note 15.

48

For the sake of the reporting procedure, in December 2004 members of UNMIK and the PISG were introduced to the outline for State Reports elaborated by the ACFC to facilitate the drafting process of the State Reports. See Hofmann, op. cit. note 15. In 2007, a training seminar for the staff of the Human Rights Units of the PISG concerning the FCNM and a roundtable on the application of the CM Resolution on the implementation of the FCNM in Kosovo were respectively organized. See ACFC, 30th Meeting Report (5-9 November 2007), ACFC/MR(2007)003, dated 25 February 2008, para. 9.

The UNMIK-CoE Agreement

the ACFC to “request further information from UNMIK and other sources” in Kosovo is also formally recognized. 49 B.

Innovative Aspects of the Agreement

The conclusion of the Agreement is in itself innovative and sets a precedent in international human (and minority) rights monitoring. Apart from enhancing the accountability of the UN-led administration and local authorities on minority rights protection in Kosovo, it is remarkable to note that, through the conclusion of this ad hoc agreement, the legal entity UNMIK, a subsidiary organ of the UN, has consented to be under the legal and political obligations set forth by a multilateral mechanism (the FCNM), which has a primarily regional dimension.50 The conceptualization and conclusion of the Agreement were certainly facilitated by the specifijic character of the Framework Convention.51 Furthermore, it is worth noting that UNMIK, albeit not a State Party to the FCNM, by consenting to the monitoring obligations under the Framework Convention has agreed—beyond the monitoring cycle—to continuously liaise with the Advisory Committee on the measures taken in order to implement the conclusions and recommendations set out in the CM’s Resolutions.52 49

Kiriaki Topidi, “Articles 24-26”, in Mark Weller (ed.), The Rights of Minorities. A Commentary on the [FCNM] (Oxford University Press, Oxford, 2006), 573-587, at 578.

50

Hofmann, op. cit. note 15.

51

Here considered as an “open treaty”−non-Member States of the CoE can become party to the Convention upon invitation from the CM−which consists of programmatic provisions.

52

This is in line with Rule 29 of the ACFC’s Rules of Procedure. See Resolution (97)10, op. cit. note 47. See also Topidi, op. cit. note 49, at 583-584. State Parties are invited to indicate “what steps have been taken to continue the dialogue in progress with the Advisory Committee, including those taken to keep it regularly informed of any action taken in response to the results of the first monitoring cycle”. See ACFC, Outline for State Reports to be submitted under the Second Monitoring Cycle, in conformity with Article 25 Paragraph 1 of the [FCNM], ACFC/INF(2003)001, para. II(d). This precise aspect has been formally included in the outline for State Reports developed by the ACFC for the 2nd Monitoring Cycle. See Hofmann, op. cit. note 15. For instance, in July 2007, the ACFC invited Mr. Joachim Rücker, Special Representative of the United Nations Secretary General, to provide further information on the implementation of the Resolution adopted by the CM in June 2006. See ACFC, 6th Activity Report Covering the period 1 June 2006–31 May 2008, ACFC/INF(2008)001, para. 26.

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In the case of Kosovo, the ACFC agreed on the crucial importance to ensure that “this exceptional efffort to ensure accountability of an internationally administered entity is pursued in a vigorous manner and that decisive follow up to the fijindings is ensured on the ground.”53 The Agreement could then be considered as a valuable attempt to enhance the protection of minorities in Kosovo independent from the status of the reporting entity.54 From this perspective, the technicality of the co-operation has enhanced the knowledge of the FCNM and the visibility of the work conducted by the ACFC.55 On this issue, the ACFC, in its second Opinion on Kosovo, welcomed the organization of a follow-up meeting to discuss the results of the fijirst monitoring of the implementation of the Framework Convention.56 C.

Problematic Implementation

The ACFC immediately recognized the particular challenging task of implementing and monitoring the FCNM in Kosovo.57 However, while considering the need for an efffective involvement of both international and local institutions in meeting the implementation and monitoring obligations under the FCNM,58 the ACFC expressed concern for what has been defijined as a “prevailing uncertainty and state of flux as regards institutional responsibilities for many issues related to the implementation 53

ACFC, 5th Activity Report Covering the period from 1 June 2004 to 31 May 2006, ACFC/ INF(2006)001, para. 18.

54

Snježana Bokulić, “Application of the [FCNM] in Kosovo: Opportunities for NGO Advocacy”, in 1 Human Rights Law Commentary (University of Nottingham Human Rights Centre, Nottingham, 2005), at 1.

55

As from UNMIK, op. cit. note 10 “the Advisory Office on Communities (AOC) organised a public awareness raising campaign about the importance of the implementation of international human rights treaties, particularly the ECHR, Framework Convention, [EChRML] and the European Social Charter”.

56

In the Opinion of the ACFC, “valuable efforts have been made to raise awareness of the Framework Convention among civil society and civil servants through training sessions organized by the Organisation for Security and Cooperation in Europe (OSCE) and civil society organisations”. See ACFC, 2nd Opinion on Kosovo, op. cit. note 36, para. 8.

57

In the 1st Opinion on Kosovo, the ACFC clarified that “the implementation of practically all principles of the Framework Convention is made extremely difficult by the fact that inter-ethnic violence has seriously eroded trust between communities”. See ACFC, Opinion on the Implementation of the [FCNM] in Kosovo, op. cit. note 22, para. 110.

58

Ibid., para. 16.

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of the Framework Convention.”59 The respective responsibilities of diffferent international and local authorities were not always clear, as stated by the ACFC in its fijirst Opinion. There was a situation of confusion and uncertainty that UNMIK, in the opinion of the ACFC, should redress every time that local authorities proved to be “not yet prepared to fulfijil their tasks in a given domain”.60 In this case, the ACFC also referred to the primary responsibility of the SRSG to ensure that rights and interests of the communities are fully protected.61 Such gaps were also due, in the opinion of the ACFC, to specifijic drafting procedures which seemed to be not fully participatory or particularly well synchronized.62 The ACFC further criticized UNMIK for the lack of consultation with minorities during the drafting process of the fijirst Report.63 In this context, it is also interesting to note that while the OSCE is not a party to the Agreement, the organization was not only delegated the responsibility to produce majority of the Report, but also co-ordinated and facilitated the production of the 2005 Shadow Report on the implementation of the FCNM in Kosovo.64 Currently, the third edition of the OSCE Community Assessment Report has been presented as the offfijicial third UNMIK progress report on the implementation of the FCNM in Kosovo.65

59

Ibid., para. 17.

60

Ibid., para. 10 and 18. The ACFC described the quality and depth of the Report as “uneven

61

ACFC, Opinion on the Implementation of the [FCNM] in Kosovo, op. cit. note 22, para.

and with limited information on the actual practice”. 16. In this case, the 2010 EU Progress Report on Kosovo returned on the issue and emphasized that the “relevant institutions are not properly coordinated and streamlined to address minority concerns. The communities’ position share in the public administrations and companies is low”. See Commission Staff Working Document, Kosovo 2010 Progress Report accompanying the Communication from the Commission to the European Parliament and the Council, Enlargement Strategy and Main Challenges 2010-2011, COM(2010)660. 62

Ibid., para. 11-12. It is worth recalling that the Constitutional Framework was drafted by UNMIK and other advisors with minimum participation and sense of ownership of local leaders. See Marko, op. cit. note 10, at 441.

63

ACFC, Opinion on the Implementation of the [FCNM], op. cit. note 22, para. 7.

64

Snježana Bokulić, op. cit. note 54, at 6. The Shadow Report is available at .

65

UNMIK, 3rd Report on the Implementation of the [FCNM] in Kosovo, 10 September 2012.

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IV.

International Co-operation

Article 1 FCNM states that “[t]he protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights, and as such falls within the scope of international co-operation”.66 The formula adopted in this Article set the frame for a co-operative approach towards the protection of minorities67 whose “international” character, being grounded in a legitimate international interest, has clear inter-organizational developments.68 The international relevance of the FCNM, and the role played by its ACFC, in the international scenario, could then be elaborated in both substantive and procedural terms, and in a truly dynamic form. A.

National Minorities as a Viable Channel for Inter-organizational Co-operation

The formula adopted for Article 1 FCNM underlines the inclusion of minority protection within the scope of international co-operation.69 In the case of the FCNM, it is interesting to note that such a co-operative approach started ab initio with the drafting process of the FCNM. The process in fact benefijited from the close interaction between members of the then UN Working Group on Minorities, the OSCE High Commissioner on National Minorities (HCNM) and the CoE.70 In these circumstances, in being inspired by “instruments which contains commitments regarding

66

[FCNM], adopted 1 February 1995, entered into force on 1 February 1998, ETS No. 157, Article 1.

67

Zdenka Machnyikova, The Use of the [FCNM] by the [OSCE]and the [UN], paper presented at the FCNM Conference Enhancing the Impact of the Framework Convention, Strasbourg 9-10 October 2008.

68

Hans-Joachim Heitze, “Article 1”, in Mark Weller (ed.), The Rights of Minorities. A Commentary on the [FCNM] (Oxford University Press, Oxford, 2006), 77-97, at 89.

69 70

Ibid., at 96. Asbjørn Eide, “Commentary: Global and regional approaches to situations involving minorities”, in Filling the Frame. Five Years of monitoring the [FCNM] (CoE Publishing, Strasbourg, 2004), 51-58, at 53. In the same volume see also the contribution from John Packer, “Situating the Framework Convention in a wider context: achievements and challenges”, 43-51, at 44.

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the protection of national minorities of the United Nations and the C/OSCE”,71 the FCNM actually translated the political commitments of the two organizations (in particular the Copenhagen Document) into legally binding provisions. 1.

General Co-operative Trends

It is now interesting to note that beyond the drafting phase, entry into force and the implementation of the FCNM—here considered in its monitoring process—triggered a process of multilateral synergy in which international organizations started to rely on the standards setting and monitoring practice of the Advisory Committee. The innovative aspect is here represented by the ad hoc creation of inter-organizational co-operative modalities driven by the identifijication—and here is important to keep in mind the historical circumstances that motivated the adoption of the FCNM72—of a common thematic area of interest instead of being consequence of a previously institutionalized cooperative agreement. This is particularly evident in the case of the EU and the consideration given to the FCNM and the Opinions of the ACFC in its enlargement process;73 it is also true for the OSCE74 and the United Nations.75 This process of co-operation evolved beyond the mere theoretical per71

[FCNM] and Explanatory Report, H(1995)010, dated February 1995, paras. 23, 24 and 26. In particular Article 27 of the ICCPR, the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities and the C/OSCE Copenhagen Document. See also Asbjørn Eide, “International Cooperation for Group Accommodation through Minority Protection: A Review of Standard Setting and Institutional Building at Regional and Global Levels”, in 13 International Journal on Minority and Group Rights (2006), 153-170, at 166.

72

See the chapter by Alan Phillips in this volume.

73

Packer, op. cit. note 70, at 47. See also Eide, op. cit. note 71, at 165. In particular in its Stabilization and Association Process the EU has relied extensively on the standards of the FCNM and its monitoring mechanisms. See Bieber, op. cit. note 29, at 13-14.

74

In the case of the OSCE, it is worth noting that the formula adopted in Article 27 of the Framework Convention (“Up until the date when the Convention enters into force, it shall also be open for signature by any other State so invited by the [CM]”) was included in order to allow C/OSCE participating States to join even before the FCNM entered into force. See Topidi, op. cit. note 49, at 596.

75

Since 1993, tripartite high-level meetings have taken place between the OSCE, the CoE and the UN/UN Office in Geneva. The organization of the meetings is currently undergoing substantial reforms.

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meation of standards and was forged, on the basis of a complementarity of diffferent approaches,76 by the procedural interaction of specifijic (international) bodies populating the minority-related international sphere.77 The initiatives of specifijic international mechanisms, in this sense, anticipated—although in an informal and not yet codifijied process—the approach later to be formalized in the offfijicial policy decisions of the respective international organizations. With regard to the co-operation with the United Nations, however, it should be clarifijied that while the general co-operation between the two organizations (UNCoE)has been conceived within the framework of Chapter VIII of the UN Charter and fijinds further operationalization in specifijic agreements on co-operation between the two Secretariats,78 it is only through the activities of the UN General Assembly 79 that it has been more precisely and thematically—in the case of minority-related activities—narrowed. In 2000, the UN General Assembly in fact adopted a Resolution on the co-operation between the United Nations and the [CoE]; here again the protection of persons belonging to minorities is among the thematic areas of reinforced cooperation between the two organizations.80 For the other regional organizations in the beginning of the 2000s this “thematic” (by then still informal) interaction was formalized in a process of bilateral institutionalization in which specifijic co-operative modalities were concluded by the

76

Eide, op. cit. note 71. See also Kristin Henrard and Robert Dunbar (eds.), Synergies in Minority Protection. European and International Law Perspectives, (Cambridge University Press, Cambridge, 2008).

77

Machnyikova, op. cit. note 67, at 9. As pointed out by Machnyikova, the Convention has been often used by other international organizations as a normative source—given its complementarity in the implementation of obligation coming from other treaty provisions—for the development of their own standards. Treaty bodies have further encouraged States to sign and ratify the FCNM.

78

See the 1951 “Agreement between the Secretariat General of the [CoE] and the Secretariat of the [UN]”, updated though the 1971 “Arrangement on Co-operation and Liaison between the Secretariats of the [UN] and the [CoE]”.

79

In October 1989, the General Assembly through Resolution A/RES/44/6 granted observer status to the CoE.

80

UN General Assembly Resolution 65/130 on the Co-operation between the United Nations and the [CoE], A/RES/65/130, 24 February 2011, para. 1.

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CoE with organizations such as the OSCE81 and the EU,82 and with explicit reference to the protection of national minorities and the work of the ACFC.83 The CoE’s growing external relations were coupled by an internal consideration that led, in April 2002, to the appointment of Ambassador Rokas Bernotas as Rapporteur on United Nations and European Sub-regional Organizations (RAP-UNREG). In his report to the 828th meeting of the Ministers’ Deputies, Ambassador Bernotas specifijically re81

Specifically with regard to CoE-OSCE co-operation, “minorities” formed part of the thematic cooperation identified in the 2000 CoE-OSCE Common Catalogue of Co-operation Modalities, CM 200(52) adopted by the Ministers’ Deputies on 26 April 2000. The protection of national minorities is also among the priority areas for co-operation identified for the 2004 CoE-OSCE Co-ordination Group (CoE Directorate of External Relations, Relations between the [CoE] and the OSCE, DER/INF(2011)1, 19 December 2011) and the 2005 Warsaw Declaration on the Reinforced Co-operation between the [CoE] and the OSCE. For further info, see Machnyikova, op. cit. note 67. See also CoE, National Minority Standards – A compilation of OSCE and [CoE] Texts (CoE Publishing, Strasbourg, 2007). In the 2002 “2+2 High Level Meeting”, the organizations here explored potential areas of co-operation with regard to their developments and involvement in Kosovo.

82

See the 2007 Memorandum of Understanding (MoU) concluded between the CoE and the EU, 11 May 2007. The MoU highlights the role of the CoE as the benchmark for human rights, the rule of law and democracy in Europe. See Elena Jurado and Antti Korkeakivi, “Completing the First Decade of Monitoring: Latest Developments under the [FCNM]”, in 6 European Yearbook of Minority Issues (2006/7), 373-387, at 385.

83

See the 2008 MoU related to the work of the EU Fundamental Rights Agency, Official Journal of the EU, L 186/7, 15 July 2008. See also Gabriel N. Toggenburg, “Exploring the Fundament of a New Agent in the Field of Rights Protection: The F(undamental) R(ights) A(gency) in Vienna”, in 7 European Yearbook of Minority Issues (2007/8), 597-626. The contribution from Rainer Hofmann on the issue is indeed remarkable. See for instance, Rainer Hofmann and Erik Friberg, “The Enlarged EU and the [CoE]: Transfer of Standards and the Quest for Future Cooperation in Minority Protection”, in Gabriel N. Toggenburg (ed.), Minority Protection and the Enlarged European Union: The Way Forward (OSI/LGI Books, Budapest, 2004); Rainer Hofmann, “The Future of Minority Issues in the [CoE] and the [OSCE]”, in Marc Weller, Denika Blacklock and Katherine Nobbs (eds.), The Protection of Minorities in the Wider Europe (Palgrave Studies in European Union Politics, Hampshire, 2008); Rainer Hofmann, “New Standards for Minority Issues in the [CoE] and the OSCE”, in Jørgen Kühl and Mark Weller (eds.), Minority Policy in Action: the Bonn – Copenhagen Declarations in a European Context 1955-2005 (ECMI/University of Southern Denmark, Department of Border Region Studies, Flensburg, 2005).

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ferred to the activities of the organization, in co-operation with other regional and sub-regional organizations, on, inter alia, the protection of national minorities.84 2.

Specific Inter-institutional Co-operation

As seen, international actors have recognized the importance of ensuring complementarity of approaches and avoiding duplication of effforts. The “protection of national minorities” represents, in this case, an exception to a broader inter-organizational cooperation that cannot exclude cases of antagonism and mutual distrust in other areas of work.85 From this perspective, it is then crucial to focus on the constructive dialogue and co-operation among international bodies, such as the OSCE HCNM, the UN Working Group on Minorities86 and the ACFC. 84

See his report on the follow-up of the Vilnius Declaration on Regional Co-operation and the Consolidation of Democratic Stability in Greater Europe, CM(2002)55, 3 May 2002. As from the Declaration, Member States were encouraged, in view of the experience acquired by regional co-operation mechanisms, to reinforce the co-operation, especially with regard to, inter alia, the protection of minorities. See RAP-UNREG, Co-operation between the [CoE] and the [UN] and European sub-regional organizations, RAP-UNREG(2003)1, dated 31 January 2003.

85

This is evident in the case of former Yugoslavia. See for instance, Malte Brosig, “The Interplay of International Institutions in Kosovo between convergence, confusion and niche capabilities” in 20(2) European Security (July 2011), 185-204. See also Ugo Caruso, “The Interplay between the [CoE], OSCE, EU and NATO”, report prepared for FP6 project “Human and Minority Rights in the Life Cycle of Ethnic Conflicts (MIRICO project)”, at: .

86

With regard to the work of the UN, this co-operation also included the Independent Expert on Minority Issues. The reference given by the UN Independent Expert on Minority Issues to standards enshrined in the FCNM has been extensive. See for instance: UN Doc. A/HRC/13/23, Report of the Independent Expert on Minority Issue, Guy McDougall to item 3 of the HRC Agenda “Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the right to Development”, 7 January 2010. See UN Doc. A/HRC/10/11, Report of the Independent Expert on Minority Issues, Gay McDougall to item 3 of the HRC Agenda “Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Rights to Development”, 16 February 2009. See also Specific Groups and Individuals: Minorities, Report of the independent expert on minority issues, UN Doc. E/CN.4/2006/74, para. 21. See also Asbjørn Eide and Rianne Letschert, “Institutional Developments in the [UN] and at the Regional

The UNMIK-CoE Agreement

Seen from the perspective of the FCNM, the work of the ACFC has been of clear relevance for the work of the UN special procedures and other UN human rights treaty bodies working on minorities.87 This synergy is even more evident with the OSCE HCNM and its process of “norm entrepreneurship”.88 As clarifijied by the former High Commissioner, Ambassador Rolf Ekéus, “the more these [HCNM] guidelines [and recommendations] overlap and are consistent with Opinions of the ACFC the greater synergy between the two [HCNM and ACFC] may be generated”.89 This description, however, would be tremendously mistaken without emphasizing the reciprocal character of this co-operation, and the benefijit received by the ACFC.90

Level”, in 14 International Journal on Minority and Group Rights (2007), 299-332, at 304. Cooperation with the ACFC and relevance of the FCNM were also confirmed in 2012 by the newly-appointed Independent Expert Ms. Rita Izsák; see UN Doc. A/HRC/19/56, Report of the Independent Expert on Minority Issues, Rita Izsák to item 3 of the HRC Agenda “Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Rights to Development”, 3 January 2012. In addition, the Independent Expert has confirmed her intention to “strengthen her mandate’s engagement with regional inter-governmental organizations and [...] enhance communication with these bodies on issues relating to minorities in their respective regions and consider joint initiatives where appropriate and ideally within the regions in question”. 87

Packer, op. cit. note 70, 43-51, at 47

88

Jennifer Jackson Preece, The HCNM and Norm Entrepreneurship: Evaluating Security Management and Desecuritization. ‘Among the Subjects’, paper presented at the University Association for Contemporary European Studies (UACES) 42nd annual conference, 3-5 September 2012, Passau, Germany. See also Anuscheh Farahat, “Regulating Minority Issues through Standards Setting and Mediation: The Case of the [HCNM]”, in 9(11) German Law Journal (2008), 1453-1480.

89

Rolf Ekéus, “The role of the FCNM in promoting stability and democratic security in Europe”, in Filling the Frame, op. cit. note 70, 25-28, at 27. See also Eva Konečná, “Frameworking Continues: Review of the Monitoring Process of the [CoE FCNM], 8 European Yearbook of Minority Issues (2009), 575-595, at 590; and Rianne Letschert, The Impact of Minority Rights Mechanisms (Asser/Cambridge University Press, The Hague/Cambridge, 2005), Chapters 5 and 9.

90

On this aspect, and with the understanding of minority rights as an integral part of human rights, the consideration of “reports to other international organisations” in the outline for State Reports under the first monitoring cycle is relevant. See CM, Outline for Reports, op. cit. note 52, para. 7. See also Heitze, op. cit. note 68, at 88. In the case of Kosovo,

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B.

The Uniqueness of the UNMIK-CoE Agreement

As a valuable precedent-setting event not only for the FCNM but also for international human rights treaty monitoring in general,91 the conclusion of the Agreement is to be considered a further development and operationalization of the “scope of the international co-operation” envisaged in Article 1 FCNM. The decision of the United Nations, here considered in its subsidiary organ UNMIK, to conclude and implement obligations coming from the Agreement seems to fijind its rationale in the quality and nature of the monitoring offfered by the ACFC more than being based on a mere consideration of standards.92 This aspect acquired even more relevance in light of the critics expressed by Minority Rights Groups International (MRG) in 2006. In pointing to the lack of minority rights knowledge of the UN Department for Peacekeeping Operations—responsible for the political and executive direction to all UN peacekeeping operations, including UNMIK— MRG reported how “the lack of institutional expertise in the UN has been painfully shown by the repeated mistakes in Kosovo”.93 In this context and leaving aside for a moment the specifijicities of the case, namely Serbian membership in the CoE and the unsettled status of Kosovo, the Agreement represents an interesting example of the workability of FCNM’s standards and monitoring process beyond the classical state-related scenario. However, other interesting elements deserve to be considered. First of all, the implementation of the Agreement has intensifijied co-operation with the OSCE for both the CoE and UNMIK; the organization is responsible today, on behalf of UNMIK, for the preparation of majority of the report under the FCNM.94 The OSCE-UNMIK co-operation in the reporting procedure under the FCNM could its is important to remember the constant reporting offered through the EU Progress Report on Kosovo and the OSCE Community Rights Assessment Report. 91

ACFC, 5th Activity Report Covering the period from 1 June 2004 to 31 May 2006, ACFC/

92

It is important to remind the availability of standards coming from Article 27 ICCPR and

INF(2006)001, dated 30 May 2006, para. 18. the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities. Furthermore, the Advisory Committee is requested to take standards developed by other international organizations into consideration in its work. See Alan Phillips in this volume. In addition, new State Parties to the Framework Convention are de facto bound by the interpretation of the Convention given by the Advisory Committee in its Opinions. See Francesco Palermo in this volume. 93

Clive Baldwin, Minority Rights in Kosovo under International Rule, (MRG, London, 2006), 27.

94

UNMIK, 3rd Report, op. cit. note 65.

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also be considered a valuable attempt to remedy to the termination of the former UNHCR-OSCE Minorities Task Force in Kosovo.95 In the case of the CoE, the OSCE Mission in Kosovo also facilitated the fijirst country visit of the ACFC in October 200596 and has provided, since the adoption of the Agreement, a “Communities Rights Assessment Report” on the progress made by the Kosovo institutions to implement specifijic standards of the FCNM.97 Through its monitoring function the ACFC has also advocated for the efffective operationalization of other international human rights monitoring mechanisms whose direct applicability is formally established in the Constitutional Framework.98 Furthermore, the programmatic character of its provisions and the advisory role of its Advisory Committee have been of clear advantage in the conceptualization and conclusion of the Agreement. Finally, despite the positive elements identifijied there are relevant negative observations to be made. The increased level of co-operation involved mainly international actors working within the framework of the UN-led administration in Kosovo, but has not directly intervened in the share of responsibilities with local authorities and direct participation of minorities in the implementation of the Framework Convention. What was reported by UNMIK on this aspect seems to suggest a level of participation of minorities that is confijined to rather informal consultative process95

The Task Force benefited from the participation of UNMIK and KFOR and produced the initial “Assessments of the Situation of Minorities in Kosovo”. It disappeared in 2001 arguing for the necessity to have a UNMIK-led body responsible for the development and implementation of UNMIK policies. See OSCE/UNHCR, Ninth Assessment of the Situation of Ethnic Minorities (covering a period from September 2001 to April 2002). See also OSCE Mission in Kosovo, Communities Rights Assessment Report (OSCE, Pristina, December 2009), 8. See also Baldwin op. cit. note 93, 12-13.

96

Joint Report on co-operation in the field of the protection of the rights of persons belonging to national minorities, 6th Meeting of the Co-ordination Group between the [CoE] and the OSCE (Vienna, 6 March 2006), GR-EXT (2006)4revised, 24 February 2006, para. 6.

97

OSCE Mission in Kosovo, Communities Rights Assessment Report, op. cit. note 95 and the Second (December 2009) and Third (July 2012) editions of the report. In the past, the two organizations provided for an assessment on the situation of the Roma in the then Federal Republic of Yugoslavia, including Kosovo. See CM, “Kosovo. [CoE’s] Contribution to the [UNMIK]”, Information Documents, Doc CN/Inf(99)48, 23 July 1999, para. 12.

98

ACFC, Opinion on the Implementation of the FCNM in Kosovo, op. cit. note 22, para. 23. The Advisory Committee was pleased to learn that UNMIK was planning to report on the implementation of the ICCPR and the ICESCR to the UN treaty bodies concerned.

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es, carried out mainly by the OSCE, and in which communities are invited to share their perceptions without being able to directly influence the implementation. This aspect becomes even more problematic in light of the OSCE observations in 2009 that “[...] although a comprehensive legal framework is in place to ensure promotion and protection of communities’ rights, its implementation remains insufffijicient or does not bring about sufffijicient positive changes in the daily life of non-majority communities”.99 C.

Formal vs. Informal Co-operation

While remarkable, the above described co-operation has been driven by individuals rather than institutional arrangements. The professional qualities and cooperative attitudes of experts and offfijicials working in the diffferent international bodies have been the driving force in forging inter-organizational interaction on minority issues. The “formal”—institutionalised cooperative agreements—in this case has been shaped to resemble or recall the “informal”—interpersonal cooperative attitude—and is still largely influenced by the latter. Witnessing the evolution of this process and agreeing on the crucial importance of having institutional forms of cooperation on the protection of minorities, the work of eminent personalities such as Rainer Hofmann cannot but being highly celebrated. In assuming offfijice as fijirst President of the ACFC, Rainer Hofmann has guided the Advisory Committee in the establishment of constructive relations not only with other pertinent CoE mechanisms, but also with other international organizations working on minority issues. Seen through the lens of “informality”, the evolution of inter-organizational co-operation has been truly dynamic and built upon reciprocal trust among the very same persons involved in the international scenario. In this dynamic process, the fijigure of Rainer Hofmann is exemplary of the outstanding professional capacities and personal qualities that the drafters of the Framework Convention had in mind in the formulation of Article 26 FCNM.

99

OSCE Mission in Kosovo, Communities Rights Assessment Report, op. cit. note 95, 1-2; Tine Kempin Reuter, “Including Minority Rights in Peace Agreements: A Benefit or Obstacle to Peace Processes after Ethnic Conflicts?”, in 19 International Journal on Minority and Groups Rights (2012), 359-397, at 394. See also Lantschner, op. cit. note 27, at 461.

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V.

Conclusion

Despite the inter-organizational co-operative trends analyzed here, the intensity of the interaction among international mechanisms devoted to the protection of minority rights is still largely dependent, for its practical implementation, on the personal attitudes of the respective experts and mandate holders. Given this background, the conclusion of an offfijicial Agreement between UNMIK and the CoE deserves higher attention as it stands for the achievement of the higher level of coherence and co-ordination of international action currently advocated by many and nowadays, in light of current fijinancial constraints, even more relevant. In this attempt, the constructive dialogue and participatory approach pursued by the ACFC, together with character of the Convention, should be positively considered as being indicative of the elasticity and technicality that international mechanisms on minority rights should possess in order to better address the diversity of majority/ ies-minority/ies relations at the country level. Following these guidelines, the possibility to increase the level of co-operation among international actors and, in doing so, rely on the professional and personal capacities of recognized experts, such as Rainer Hofmann, would suggest that the pinnacle of achievement with respect to minority rights protection—with the implicit limitations that this would mean— has yet to be achieved.

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Chapter Ten Working with the Language Charter Committee of Experts Stefan Oeter

I.

Introduction

The Framework Convention for the Protection of National Minorities (hereinafter “Framework Convention” or FCNM) and the European Charter for Regional or Minority Languages (hereinafter “Language Charter” or EChRML)1 are products of the same phase of heightened attention to minority problems that had arisen in Europe after the fall of the “iron curtain”. Both Council of Europe (CoE) treaties had been negotiated in the early 1990s on more or less parallel tracks, although the origins of both instruments are rather diverse. Whereas the FCNM is clearly a product of the immediate aftermath of 1990, the ideological origins of the EChRML go back to the Galway Declaration of 1975 and are linked to the regionalism movement of the 1970s.2 With Recommendation 928 of the CoE Parliamentary Assembly (PACE), the Council of Europe adopted such an initiative in 1981.3 The decisive initiative was then taken in the mid-nineteen eighties by the Conference of Local and Regional Authorities of Europe, which elaborated a fijirst draft that was adopted by the Conference in 1987 and by PACE in 1988. 4 The Committee of Ministers (CM) was reluctant to embrace 1

EChRML, adopted 5 November 1995, entered into force on 1 March 1998, ETS No. 158.

2

Jean-Marie Woehrling, The [EChRML]: A Critical Commentary (CoE Publishing, Strasbourg, 2005), 23. Also see in detail Meike Guskow, Entstehung und Geschichte der Europäischen Charta der Regional- oder Minderheitensprachen (Peter Lang, Frankfurt am Main, 2009).

3

Jean-Marie Woehrling, ibid., 23.

4

Christian Scherer-Leydecker, Minderheiten und sonstige ethnische Gruppen: Eine Studie zur kulturellen Identität im Völkerrecht (Berlin-Verlag Spitz, Berlin, 1997), 146/47; see also the Explanatory Report to the [EChRML], paras. 3-8.

Tove H. Malloy and Ugo Caruso (eds.), Essays in Honour of Rainer Hofmann Copyright 2013 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-21441-5 pp. 205-227

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the proposal and fijirst set up an Ad Hoc Committee of Experts entrusted with revising the draft. The new draft was presented in a fortunate moment in 1992, because the CoE Member States felt a certain pressure to develop legal instruments dealing with the protection of minorities. At that stage, the European States had decided that a solid instrument was needed in order to be able to cope with the problems of ethnic conflict raging over Europe after the end of the “Cold War”.5 Explicit legal guarantees enshrined in a multilateral legal instrument should safeguard a series of rights granting minority members protected domains in education, culture, the media and public administration. Several draft conventions were prepared by various organs of the Council of Europe, like the Venice Commission draft and a proposal for a minority-related Additional Protocol to the European Convention on Human Rights.6 However, one after the other, the ambitious projects of “progressive” minority rights instruments failed. The project of a “European Charter for Regional or Minority Languages” is one of the two survivors of that attempt at standard-setting. Compared to the instruments most international lawyers had struggled for, it constitutes a very peculiar regime, due to its so-called “à la carte approach”.7 Such à la carte construction is not a complete novelty–at least the European Social Charter, the CoE instrument that codifijies economic and social rights, follows a comparable model. The Language Charter obviously was inspired in its construction by such an example. Most observers were afraid that the (expected) tendency for selective ratifijication of arrangements of legal obligations might lead to drastic shortcomings in the normative ambitions underlying the instruments of ratifijication.8 The draft Charter was adopted by the Committee of Ministers and opened for ratifijication in 1992, but it came into force only in 1998, after it had been ratifijied by the minimum number of fijive States. Even after that date, it took quite some time until a signifijicant number of CoE Member States went to ratifijication. Today, however, more than half of the Member States have become contracting Parties. 5

Sigrid Boysen, “Einführung”, in Sigrid Boysen, et. al. (eds.), Europäische Charta der Regional-

6

Relating to these draft instruments, see Christian Scherer-Leydecker, op. cit. note 4, 151-

oder Minderheitennsprachen. Handkommentar (Dike, Basel, 2011), 23-39, at para. 10. 159; see also Jean-Marie Woehrling, “Introduction”, in Alba Nogueira López, Eduardo Ruiz Vieytez and Iñigo Urrutia Libarona (eds.), Shaping Language Rights: Commentary on the [EChRML] in Light of the Committee of Experts´ Evaluation (CoE Publishing, Strasbourg, 2012), 12-13. 7

Gaetano Pentassuglia, Minorities in International Law (CoE Publishing, Strasbourg, 2002),

8

As an example, see Pentassuglia, ibid., 131.

130-131, and Boysen, op. cit. note 5, para. 15.

Working with the Language Charter Committee of Experts

The original drafts were very much influenced by the ideologies of regionalism and then of traditional minority protection. However, over the nearly ten years of drafting, undertaken by various committees and drafting groups, the shape of the project changed considerably. This becomes evident if one looks to the preamble of the Language Charter, which includes an explicit commitment to the values of “interculturalism and multilingualism”.9 Linked to such commitment, the preamble also emphasizes that “[c]onsidering that the protection of the historical regional or minority languages of Europe, some of which are in danger of eventual extinction, contributes to the maintenance and development of Europe´s cultural wealth and traditions”. Without any doubt, the drafting history of the Language Charter had started with a much narrower mission. The original intent of the various drafting exercises in the 1980s and early 1990s had been linked to traditional concepts of minority protection, with its inherent focus on collective rights and strong emphasis on the autochthonous character of the protected groups.10 But the complex and cumbersome drafting process led to a result that proves to be much wiser than its drafters–the Language Charter in the end became more an instrument of standardsetting in the complex fijield of managing diversity than a traditional minority rights treaty.11 This departure from its original goals has often been criticized,12 but today most sympathizers of the Language Charter think that such focus on diversity management is one of its main virtues. The Language Charter avoids any formulation on categories of individual or collective rights.13 Instead, it uses the terminology of “objective” standards,14 directed at binding the Member States in its formulation and operation of language policies. Nevertheless, the drafters of the Language Charter could not avoid creating substantive obligations that might give rise to subjective

9

Concerning the values underlying the Language Charter (and expressed in its Preamble) see Boysen, op. cit. note 5, Einführung para. 2 and Präambel para. 22 et. seq.

10

See the Explanatory Report to the Language Charter, para. 3 et. seq., published (together

11

Also Boysen, op. cit. note 5, Einführung para. 11, and Woehrling , op. cit. note 2, 20.

with the text of the treaty) as a booklet by CoE Publishing. 12

For example Gaetano Pentassuglia, op. cit. note 7, 131; Anja Siegert, Minderheitenschutz in der Bundesrepublik Deutschland (Duncker & Humblot, Berlin, 1999), 92 footnote 148; also see Fernand de Varennes, “Language Protection and the [EChRML]: Quo Vadis?”, in Robert Dunbar and Gwynedd Parry (eds.), The [EChRML]: Legal Challenges and Opportunities (Council of Europe Publishing, Strasbourg, 2008), 29 et. seq.

13

For example, Pentassuglia, op. cit. note 7, 130.

14

Boysen, op. cit. note 5, Einführung para. 11, and Woehrling, op. cit. note 6, 17.

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rights as a consequence.15 The process of drafting could not immunize the instrument completely against any reading in terms of minority rights. II.

The Standards of Protection Provided for by the Language Charter

Despite the mentioned impossibility to completely escape any language in terms of “rights”, the drafters did their utmost to keep the treaty in the bounds of an objective regime on the protection of cultural heritage (and of diversity management). It took some time until the majority of CoE Member States felt safe with the instrument, developing a certain trust that ratifijication would not overburden their willingness to concede legal protection (and material resources) for the sake of protecting minority languages. In the process of ratifijication, States had—not surprisingly—a tendency to take the existing state of internal legislation as a given basis of their instrument of ratifijication. Contrary to initial fears by most of the proponents of an improved standard of minority protection, however, the pre-existing legislative state of the art served only as a starting point. This was mostly because the ratifying States often tried to take the minority communities politically on board, which implied that States had to make more ambitious political pledges than originally intended, incorporating a considerable portion of normative ambition into the instrument of ratifijication.16 As a result, the instrument of ratifijication often promised far-reaching reforms of national language policy, at least if taken at face value. This did not preclude, however, that the practical implementation in quite a number of cases tended to cause a step backwards and to delay the realization of the promises made with the ratifijication of the Language Charter.17 At the same time, some developments arising out of the Charter as a more or less automatic dynamic had not really been foreseen. The Charter includes, for example, an offfijicial defijinition of the term “minority languages”. Bona fijide interpretation of such an offfijicial defijinition, at least if undertaken 15

See also Boysen, op. cit. note 5, Einführung para. 13.

16

As an example, see the description of the German process for preparing ratification in Stefan Oeter and Alastair Walker, “The Case of the Federal Republic of Germany”, in Sia Spiliopoulou Åkermark et. al. (eds.), International Obligations and National Debates: Minorities around the Baltic Sea (The Ǻland Islands Peace Institute, Mariehamn, 2006), 227-299, at 259 et. seq.

17

Stefan Oeter, “Ensuring the Charter is Effective in the European Legal Order”, in: Council of Europe (ed.), Minority Language Protection in Europe: Into a New Decade (Council of Europe Publishing, Strasbourg, 2010), 187-198, at 189 et. seq.

Working with the Language Charter Committee of Experts

by an independent treaty body, inevitably will lead to the result that some languages are covered by the Charter that traditionally had not been given any attention and protection at national level.18 When entering into the monitoring process by drawing up their State Reports, Member States were realizing this consequence and began to deal with the defijiciencies in the protection of these hitherto neglected languages (Kven in Norway 19 or Limburgish in the Netherlands20 are good examples of such developments). When looking at the substance of the Language Charter, i.e. the material standard of protection, and in particular the problems linked to the implementation of such standards of protection, one important point should be kept in mind. The Charter does not protect minorities as social groups. It also does not envisage directly the protection of individual rights of members of minorities.21 The Charter is clearly not conceived as a human rights treaty, but as a treaty designed to set stand-

18

Concerning the definition of minority languages in Art.1(a) EChRML, see Scherer-Leydecker , op. cit. note 4, 147-148; see also the Explanatory Report to the [EChRML], paras. 18-21 and 30-33, as well as Woehrling, op. cit. note 2, 53 et. seq., and Boysen, op. cit. note 5, Art. 1 paras 1 et. seq.

19

See CoE, Application of the Charter in Norway, ECRML(2001)6, dated 22 November 2001, 1, paras. 11 and 20, at ; CoE, Application of the Charter in Norway: 2nd Monitoring Cycle, ECRML(2003)2, dated 29 August 2003, paras. 14, 23, 29-31, 58, 63 and 67, at ; CoE, Application of the Charter in Norway: 3rd Monitoring Cycle, ECRML(2007)3, dated 1 December 2006, paras. 13, 19, 26, 33-40, at .

20

See CoE, Application of the Charter in the Netherlands, ECRML(2001)1, dated 9 February 2001, paras. 2, 12, 18, and 28, at ; CoE, Application of the Charter in the Netherlands: 2nd Monitoring Cycle, ECRML(2004)8, dated 17 June 2004, paras. 17, 33, 37-38, 41 and 49-50, at ; and CoE, Application of the Charter in Netherlands: 3rd Monitoring Cycle, ECRML(2008)3, dated 27 November 2007, paras. 16, 26, 27-29, 34-41 and 53-57, at .

21

See Woehrling, op. cit. note 2, 27.

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ards for the formulation and implementation of language policies.22 The primary objects of protection thus are not minorities as groups or individual members of such minority groups, but “languages” as a cultural phenomenon,23 which is a clear point of distinction between the FCNM and the Language Charter. No doubt, the protection of languages in practical detail means also—as a more or less inevitable consequence—protecting the speakers of a minority language in its linguistic rights. Indirectly, the Charter thus protects also individual rights and constitutes (at least indirectly) a human rights instrument.24 But the political understanding upon which the project of the Charter was based always stressed the question of language maintenance as primary objective of the Charter, thus the “objective” character of the instrument. The Charter accordingly speaks of “languages” and of “speakers” of such languages as its objects of protection, not of “minorities” or “linguistic communities”. Despite this clear understanding, it is not always easy to respect such “political correctness”. By protecting “languages”, as an emanation of culture that is dependent upon communicative arrangements, the Charter in result protects also “linguistic communities”, although not as bearers of rights, but only indirectly, as a kind of reflex.25 The Charter deliberately avoids any use of collective rights concepts in its wording; nevertheless it cannot avoid protecting in substance members of linguistic minorities—and indirectly also minorities as collective units.26 It is also beyond dispute that the Charter, although not an explicit human rights instrument, provides in a number of cases for individual rights bearing human rights character.27 One must only read obligations like Article 8 Paragraph 1(b), which provides for various schemes of guaranteed primary school education in minority languages—education in the relevant minority language, a substantial part of education in the language or the teaching of the language as an integral part of the curriculum—with a fijinal option “to apply one of the measures provided for under i to iii above at least to those pupils whose families so request and whose number is considered sufffijicient”.

22

See Pentassuglia, op. cit. note 7, 130; see also the Explanatory Report to the [EChRML], para. 11, and Boysen, op. cit. note 5, Einführung para. 11.

23

See Boysen, op. cit. note 5, Einführung para. 11, and Woehrling, op. cit. note 6, 16-18.

24

See the Explanatory Report to the [EChRML], paras. 11 and 13; see also Woehrling, op. cit.

25

See Woehrling, op. cit. note 2, 27.

26

See also the Explanatory Report to the [EChRML], para. 11.

note 2, 31.

27

See more in detail Boysen, op. cit. note 5, Einführung para. 12, and Woehrling , op. cit. note 2, 31.

Working with the Language Charter Committee of Experts

It is difffijicult to interpret such a clause without coming to some kind of a “human rights dimension”, granting a right for the parents and children concerned.28 There are two operative parts that make up the Language Charter, Part II and Part III.29 Part II provides for a “minimum code” of elementary standards meant to create obligations for States vis-à-vis all minority and regional languages that exist upon the territory of a Member State, and it is up to the Committee of Experts to qualify languages as being “minority languages” in the sense of the Charter or not.30 There is no “menu” concerning Part II; the (programmatic) standards laid down in this part are binding in all its aspects and apply to each minority language covered.31 The standards as such, however, are rather vague and are more formulated as policy objectives than as concrete legal standards that could be applied immediately by administrative authorities and courts.32 The “chapeau” of Article 7 accordingly requires that: “In respect of regional or minority languages, within the territories in which such languages are used and according to the situation of each language, the parties shall base their policies, legislation and practice on the following objectives and principles.” A list of elementary objectives and principles of protection of minority languages follows after this chapeau, phrased in rather abstract terms, such as “the recognition of the regional or minority languages as an expression of cultural wealth”, “the need for resolute action to promote regional or minority languages in order to safeguard them”, “the facilitation and/or encouragement of the use of regional or minority languages, in speech and writing, in public and private life”, and

28

See more details in Christine Langenfeld in Sigrid Boysen et. al., Europäische Charta der Regional- oder Minderheitennsprachen. Handkommentar (Dike, Basel, 2011), Art. 8 para. 6.

29

As to the differences between Part II and Part III see the Explanatory Report to the [EChRML], paras. 38-41; see also Boysen, op. cit. note 5, Einführung para. 14, and Woehrling, op. cit. note 2, 29.

30

See Woehrling, op. cit. note 2, 71 and 104 et. seq., and Boysen , op. cit. note 5, Art. 2 para. 3; see also in great detail Eduardo J. Ruiz Vieytez, “Article 1: Definitions”, in Alba Nogueira López, Eduardo Ruiz Vieytez and Iñigo Urrutia Libarona (eds.), op. cit. note 6, 40-71.

31

Explanatory Report on the [EChRML], para. 39; see also Boysen, op. cit. note 5, Art. 2 para. 2.

32

See also Boysen, op. cit. note 5, Art. 2 para. 4, and Robert Dunbar, “Article 7: Objectives and Principles”, in Alba Nogueira López, Eduardo Ruiz Vieytez and Iñigo Urrutia Libarona (eds.), op. cit. note 6, 187-190.

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“the provision of appropriate forms and means for the teaching and study of regional or minority languages at all appropriate stages”.33 Part III is the technical core of the Language Charter. It contains the specifijic “menu” of protection for recognized minority languages with options of a much more concrete nature than the abstract principles and objectives of Part II.34 It has often been asked why the drafters have chosen such a complex structure as the optional menu under Part III. One should be aware, however, that the task to protect and promote minority languages in the operational details of language policy requires more than a transformed set of general civil and political rights. The protection of minority languages in its essence is about positive obligations of States in the fijields of education, media, culture, offfijicial use in administration and courts.35 Minority languages cannot be protected by simply obliging States to abstain from harmful acts. As the Advisory Committee on the Framework Convention (“Advisory Committee” or ACFC) notes in its Third Thematic Commentary on the Language Rights of Persons Belonging to National Minorities, “preventing assimilation requires not only abstention from policies clearly aimed at assimilating persons belonging to national minorities into the mainstream society”.36 It also implies positive action in order to “promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage”, as is stated in Article 5 FCNM. This will, the Advisory Committee argues, “often require the active promotion and encouragement of the use of minority languages in order to prevent their disappearance from public life, and the creation of an environment more conducive to the use of these languages.”37 In order to achieve a sensible degree of protection and promotion of minority languages, States must take a broad range of positive measures, which include, in particular, providing certain types of education in minority languages at State 33

Cf. the Explanatory Report to the [EChRML], paras. 58-75; cf. also Woehrling, op. cit. note 2, 106 et. seq.

34 35

See Boysen, op. cit. note 5, Art. 2 para. 6 et. seq. See Jean-Marie Woehrling, op. cit. note 2, 27, and Sigrid Boysen, op. cit. note 5, Einführung para. 22; see also Jean-Marie Woehrling, “The [EChRML] and the Principle of Non-Discrimination”, in Robert Dunbar and Gwynedd Parry (eds.), op. cit. note 12, 74 et. seq.

36

ACFC, Thematic Commentary No. 3: The Language Rights of Persons Belonging to National Minorities under the Framework Convention adopted 24 May 2012, ACFC/22DOC(2012)001 rev, dated 5 July 2012, para. 29.

37

Ibid.

Working with the Language Charter Committee of Experts

schools, offfering programmes in minority languages on public service radio and television and enabling speakers to use their language before administrative authorities and courts. Offfijicial use before courts and administrations, however, requires specifijic structures and personnel with specifijic linguistic capabilities.38 It is difffijicult to oblige States to implement rather specifijic kinds of positive measures, while taking refuge in abstract, all-embracing formulations. If one wants to spell out these positive obligations in a manner as concrete as possible, it is suitable only in a catalogue of options as used in the Language Charter (or in the European Social Charter, the structural model copied when drafting the Charter 39). With the various options set out in the text of Part III, the envisaged positive measures gain a degree of concreteness that would never be achieved in a catch-all formula typically used in standard human rights treaties. The recourse to a “menu structure” like in the Social Charter was thus a logical step to be taken for the drafters of the Charter. The Charter accordingly manages to be very technical in its construction of the undertakings, pressing the States into a straight jacket of rather precise and concrete obligations. States have a choice of which obligations they want to take, but if they have taken a set of obligations, they have much less leeway in arguing that a certain policy conforms to its undertakings than they have under the Framework Convention. 40 The preference for technical detail that characterizes the Language Charter’s individual undertakings makes compliance control under the Charter an easy and a difffijicult task at the same time: easy, since the interpretation of the individual options often is not a very complex task—most specifijic options are clear and precise in their content and do not need much interpretation—and difffijicult at the same time, however, because it is a challenging task to keep an overview of the concrete menu of obligations of each Member State. No State has an identical set of obligations to the other; the rationale of each menu is diffferent and calls for diffferentiated analysis of law and facts. Each menu is understandable only on the basis of the sociolinguistic situation of the languages in question and of the fundamental structures of the national legal orders. 41 The menus of federal States tend to be extremely complex, whereas centralized States tend to grant each language the same protection, irre38

See Boysen, op. cit. note 5, Art. 2 para. 6; see also Robert Dunbar, “The Charter as a Living Instrument: Legal Challenges and Perspectives”, in CoE (ed.), Minority Language Protection in Europe: Into a New Decade (CoE Publishing, Strasbourg, 2010), 178 et. seq.

39

See Boysen, op.cit. note 5, Einführung para. 11.

40

See Stefan Oeter, “The [EChRML]”, in CoE (ed.), Mechanisms for the Implementation of Minority Rights (Council of Europe Publishing, Strasbourg, 2004), 135.

41

See also Woehrling, op. cit. note 2, 96-99.

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spective its sociolinguistic situation, the number of its speakers and its geographical coverage. 42 Due to the complexity of the menu, State authorities are in obvious danger of losing their overview. Sometimes it is evident from the information given in the reporting procedure that the competent State organs misunderstood the meaning of certain options, selected the “wrong” options in the process of ratifijication, or selected nearly by ransom certain options in order to fijill up the menu, hoping that they would not be criticized for doing nothing in the implementation of some undertakings that seem to have no clear relevance in a given situation. III.

Institutional Arrangements and the Monitoring Procedure

Regarding the question of substance, the drafters had to agree on a procedure for compliance management. Fortunately, there was not much leeway for a discussion on that item, since the creation of an independent treaty body and of a reporting procedure based on periodic State Reports constitutes more or less a standard device in more recent Council of Europe instruments. The EChRML accordingly follows the (now more or less common) approach of CoE conventions in the human rights fijield and sets out a standard reporting procedure. 43 Member States have to submit Reports on their policies pursued in accordance with Part II of the Charter and on the measures taken in application of those provisions of Part III chosen by them, in a format that is prescribed by a standard form adopted by the Committee of Ministers. 44 The fijirst periodical Report is due one year after the Charter has entered into force for a State. The respective government offfijice of minority afffairs or a specifijic ministry determined as the primary responsible organ inside the government usually collects all the information necessary to report on the implementation of the relevant menu of ratifijication and puts the bits and pieces of information together in a more or less

42

As to the differences in ratification menus see also Boysen, op. cit. note 5, Einführung para. 17 et. seq.

43

See more in detail Gaetano Pentassuglia, op. cit. note 7, 201-202, and Oeter, op. cit. note 40,

44

See the Explanatory Report to the Language Charter, para. 127; for more detail see also

136 et. seq. Woehrling, op. cit. note 2, 246 et. seq.; Detlev Rein in Sigrid Boysen et. al., Europäische Charta der Regional- oder Minderheitennsprachen. Handkommentar (Dike, Basel, 2011), Art. 15 paras. 12 et. seq.; Iñaki Lasagabaster, “Articles 15 to 17. Application of the Charter”, in Alba Nogueira López, Eduardo Ruiz Vieytez and Iñigo Urrutia Libarona (eds.), op. cit. note 6, 519-522.

Working with the Language Charter Committee of Experts

comprehensive Report. 45 The Reports are presented to the CoE Secretary General. At the same time, the Reports must be made public in the country concerned, usually by printing it as a government paper distributed publicly, also often by making it public on the internet homepage of the government. 46 The Secretary General forwards the Reports to the Committee of Experts established under the Charter, which has the responsibility of examining the reports in detail. The Committee of Experts, a body provided for under Article 17 EChRML, is composed of one Member per each contracting Party, appointed by the CM for a term of six years from a list of three national experts presented by the State concerned. 47 With each new ratifijication the Committee of Experts is thus growing larger, but in a mid-term perspective it does not seem probable that the Committee will grow much beyond thirty members because there is a strong group of “persistent objector” States that—for rather diffferent reasons—are not going to ratify the Charter. 48 The composition of the Committee of Experts is heterogeneous. Nearly half of the Members are law professors or scholars with a particular expertise in social rights and minority rights; the other most important group comprises linguists and social scientists specialised in sociolinguistic issues. 49 Roughly a third of the Committee´s Members belong to linguistic minorities themselves. In the process of monitoring the implementation of the Language Charter, the involvement of civil society is of extreme importance.50 The Charter itself invites “bodies or associations legally established in a Party”, which means primarily minority bodies or associations, to “draw the attention of the committee of experts to matters relating to the undertakings entered into by that Party under Part III of this Charter”.51 Associations or bodies representing minorities or struggling for the rights of minorities thus may not only brief the Committee´s Members behind the scene, as is done at the UN level, but are also allowed to act openly by formally sub45

See Rein, op. cit. note 44, Art. 15 para. 6, and Oeter, op .cit. note 40, 136.

46

See Art. 15 para. 2 EChRML; cf. also Boysen, op. cit. note 5, Art. 6 para..1 et. seq.

47

See the Explanatory Report to the Language Charter, para. 131, and more in detail Rein, op. cit. note 44, Art. 17 para. 3 et.. seq., and Lasagabaster, op. cit. note 44, 528.

48

Concerning the reasons in the cases of Belgium and the Baltic States see Yves Lejeune, “The Case of Belgium”, in CoE (ed.), Minority Language Protection in Europe: Into a New Decade (CoE Publishing, Strasbourg, 2010), 43 et. seq., and Snežana Trifunovska, “The Case of the Baltic States”, in id., 67 et. seq.

49

See Oeter, op. cit. note 40, 137, and Rein, op. cit. note 44, Art. 17 para. 7.

50

See Oeter, op. cit. note 17, 192 et. seq.

51

See also the Explanatory Report on the Language Charter, paras. 128-29.

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mitting statements, pieces of information and critical comments to the Reports of States.52 The Committee of Experts is explicitly authorized by Article 16 Paragraph 2 EChRML to make use of such information, after consulting the Party concerned, thus giving the respective State the right to be heard.53 The Committee may “take account of this information” in the preparation of its report, may include it in its statements of facts and may openly refer to it.54 Legal arrangements alone cannot guarantee a loyal implementation of the set of undertakings ratifijied under the Charter; societal pressure, political debate and public attention are needed in that regard. Without engaged and professional non-governmental organizations (NGOs) mobilizing the public and orchestrating political pressure, implementation often becomes defijicient.55 The (triangular) dialogue needed to achieve efffective monitoring, as well to improve the state of implementation, usually “is carried on in the fijirst place in the form of written questions and answers”, as the CoE Secretary General describes the procedure in one of his reports to the Parliamentary Assembly of the CoE (PACE) on the application of the Charter. The report continues: “However, the Committee has normally found it necessary to follow up this written correspondence by sending a delegation, consisting of three Members of the Committee, on an “On-the-SpotMission” to the country concerned. These visits provide an opportunity for a more intensive exchange of information with the governmental authorities, other public bodies (such as ombudsmen), parliamentarians and representatives of the speakers of the various regional or minority languages.”56 The practice of “on-the-spot visits” has become an extremely important tool for the Committee of Experts.57 Most of time for on-the-spot visits is spent in discussions with representatives of civil society, in particular minority organizations, and in talks with local and regional administrations. Debates with central authorities are usually held at the end of an on-thespot visit, which means that the responsible central authorities can be confronted with pieces of information gained in the prior phase of the visit indicating defijicien52

See also Woehrling, op. cit. note 2, 251 et. seq., and Lasagabaster, op. cit. note 44, 522-524.

53

See Oeter, op. cit. note 17, 193.

54

See also Rein, op. cit. note 44, Art. 16 para. 12 et. seq.

55

See also Sigve Gramstad, “The Charter´s Monitoring Mechanism: A Practical Perspective”, in CoE (ed.), Minority Language Protection in Europe: Into a New Decade (CoE Publishing, Strasbourg, 2010), 33.

56

PACE, Biennial Report by the Secretary General to the Parliamentary Assembly on the

57

See also more in detail Rein, op. cit. note 44, Art. 16 para. 15, and Oeter, op. cit. note 40, 139.

Application of the [EChRML], Doc. 8879, dated 18 October 2000, 2.

Working with the Language Charter Committee of Experts

cies in the implementation of a number of undertakings. Confijidential talks with civil society representatives, without the presence of State offfijicials, are a “must” in such a set-up, and help to gain a large amount of valuable information concerning the problems linked to the implementation of the treaty provisions. The procedure is mainly driven by the work of the “country rapporteur” appointed by the Committee in advance and by the Member of the Secretariat responsible for the Report.58 The Committee’s Secretariat is extremely small, consisting of only three or four offfijicials working on the Reports. The country rapporteur and the stafff member prepare the fijirst examination of the State Report, draw up the questionnaires and prepare the on-the-spot visits. The examination itself, as well as the drafting work for the questionnaires, was done during the fijirst years in plenary sessions of the Committee. But since the number of Reports simultaneously in the process of examination is growing more and more, the Committee had to change to a kind of “chamber procedure”.59 Members of the Committee are divided into various working groups, where they deal with the details of checking the information given in the State Reports and with drafting the Committee’s evaluation report. The proposed draft, however, fijinally must always be discussed in the whole Committee, giving each Member a chance to come back to every detail.60 The evaluation report of the Committee of Experts fijinally is presented to the Committee of Ministers.61 As Article 16 Paragraph 4 EChRML provides, the report for the CM shall contain “proposals of the committee of experts to the Committee of Ministers for the preparation of such recommendations of the latter body to one or more of the parties as may be required”. Accordingly, the CM takes note of the report of the Committee of Experts and adopts recommendations addressed to the State concerned.62 Up to now, the CM has always adopted the proposed recommendations, although sometimes only after long deliberations and with modifijications. The report of the Committee of Experts is not automatically made public. Publication needs a specifijic decision, which requires in practice consent by the State concerned.63 Fortunately enough, all State Parties have without any hesitation consented to publication, which has set a valuable precedent for future practice. 58

See Rein, op. cit. note 44, Art. 16 para. 10.

59

See more in detail Oeter, op. cit. note 40, 138-139.

60

See Oeter, op. cit. note 40, 140.

61

Concerning the procedure at the CM (usually sitting in its formation of deputies) and the preparatory Rapporteur Groups see Rein, op. cit. note 44, Art. 16 para. 21 et. seq.

62

See Oeter, op. cit. note 40, 140.

63

Art.16 para. 3(second sentence) EChRML; see also Rein, op. cit. note 44, Art. 16 para. 23.

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Every three years a new periodical Report is due to be presented by the Member States.64 Taking into consideration the time needed to examine a Country Report in accordance with the procedure explained above, this is a relatively short time span. Usually it takes one and a half to two years until a Country Report is examined and the CM has adopted its recommendations. This means that soon after fijinishing one round of examination, the respective State has to start anew its internal procedure of collecting information for its next periodical Report, which gives the whole reporting procedure the character of a constant dialogue upon questions of implementation.65 IV.

The Complementarity of the FCNM and the Language Charter

The two treaties under consideration here, the FCNM and the Language Charter, show a clear relation of complementarity.66 In a very broad sense, both stem from the same historical sources: the concept of minority protection developed in the fijirst decades of the 20th century and then laid down in bilateral treaties (or treaty clauses) on minority protection in the interwar period. The whole concept of minority protection at fijirst sight seemed outdated in 1945 and found no immediate successor, but experienced a revival in the 1980s and found its way into positive international law after 1990.67 When looking more into the details of the drafting history, however, both treaties prove to be results of completely diffferent political movements, and of diffferent actors supporting these movements. In essence, the Language Charter is a child of the regionalism movement of the 1970s and 1980s, with the Conference of Local and Regional Authorities of Europe as its main supporter in the fijirst phase, and the support of PACE as an additional driving force. The background of the movement leading to the FCNM is much more rooted in high politics and has a lot to do with the ethnopolitical cleavages and conflicts coming to the surface of European politics in the years after 1990.68 The fijirst arena where such problems were ventured and solutions were sought had been the OSCE, with the creation of the OSCE High Commissioner on National Minorities (HCNM) as the major result of such search for

64

Ibid., para. 25.

65

See also Gramstad, op. cit. note 55, 33.

66

See also Boysen, op. cit. note 5, Einführung para. 10.

67

See Thornberry and Martín Estébanez, Minority Rights in Europe (CoE Publishing, Stras-

68

See Boysen, op. cit. note 5, Einführung para. 10.

bourg, 2004), 7-10.

Working with the Language Charter Committee of Experts

a new ground.69 But the feeling that some binding legal standards were needed in addition to the “soft law” standards of the OSCE brought the CoE into the forefront. Only in the framework of the CoE did it prove possible to negotiate such instruments and to underpin them by institutional mechanisms of monitoring. The orientation of both strands of treaty regimes at fijirst sight seemed to be rather diffferent. The ideational background of the “high politics” projects of a comprehensive treaty on the protection of minorities clearly was the language of human rights. It is no accident that the most far-reaching project of such treaty was a (proposed) Additional Protocol to the ECHR on minority rights.70 Even the Framework Convention, although in substance much weaker than the original projects, is still phrased decidedly in terms of human rights. The drafters make it clear that the document intends to safeguard human rights of the members of national minorities, and they attempted to fijind formulations that cover all the human rights aspects of measures of protection and promotion in favour of minorities (respectively their members).71 When going in detail, it obviously was difffijicult to cover the broad range of problems with abstract formulations in the language of universal “rights”. In order not to overburden Member States with a too far-reaching rights language, the concrete formulations had to be watered down by a huge number of softening formulations, limitation clauses and in-built reservations. Nevertheless, this price (which had to be paid to satisfy the various concerns of States) did not prevent the instrument to stick to a human rights language with far-reaching implications—implications which have become very clear in the practice of the Advisory Committee.72 The ambition of the drafters of the Language Charter went into a completely diffferent direction. The various drafting groups knew from the beginning that you cannot do justice to the needs and purposes of language protection by using a mere human rights language. If there is a human rights language adequate for these problems, it is the language of social, economic and cultural rights. The protection and promotion of languages requires in its essence a number of positive actions by States.73 Educational offfers are needed; radio and television programmes in these 69 70

See Thornberry and Martín Estébanez, op. cit. note 67, 17-18. As to this project see Heinrich Klebes, “Der Entwurf eines Minderheitenprotokolls zur EMRK”, 20 Europäische Grundrechte-Zeitschrift (1993), 148-151, at 148 et. seq.

71

See Thornberry and Martín Estébanez, op. cit. note 67, 92.

72

See Rainer Hofmann, “The [FCNM]: An Introduction”, in Marc Weller (ed.), The Rights of Minorities. A Commentary on the European Framework Convention for the Protection of National Minorities (Oxford University Press, Oxford, 2005), 1-24.

73

See Woehrling, op. cit. note 2, 27, and Boysen, op .cit. note 5, Einführung para. 22.

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languages must be provided; cultural and social activities must be supported by the State; options for using these languages in communication with State authorities should be created; the use of these languages in social life needs to be encouraged. It is difffijicult, if not impossible, to formulate these needs of “positive action” in the language of absolute rights. The resource basis of States—even inside a regional organization like the Council of Europe—is extremely divergent. The sociolinguistic situations difffer enormously and accordingly the needs for positive action, as well as the options that are politically feasible. The resulting path into an à-la-carte approach according to the model of the European Social Charter seemed much more promising in this regard than a traditional human rights approach.74 Accordingly, the Language Charter takes a clearly complementary approach to the human rights perspective of the FCNM. The FCNM and the Language Charter are devoted to the same problem area, but they take alternative routes and cover diffferent aspects of the protection of political, social and cultural rights of minorities. Both instruments try to fijill some major gaps in the overall setup of the European legal order—a setup which is not yet really completed as far as the protection of cultural diversity in Europe is concerned.75 As isolated legal instruments, the FCNM and the EChRML might be doomed to failure; only as part and parcel of a decided European policy in favour of the protection of cultural diversity could they have a serious impact on the future development of European language policies.76 Despite all the constructive diffferences, a clear overlap in substance exists between the two instruments. Some of the major problem areas covered by the two instruments are the same (education, media, language use before authorities and fijight against discrimination). Both instruments approach these problems from diffferent angles: one from the angle of classical human rights protection and the other from the angle of “objective” standard-setting with the aim to fijind adequate standards for the needed measures of “positive action”. In the specifijic details of protection, both approaches often converge, i.e. whether you phrase, for example, segregation of Roma children in special schools as a problem of discrimination or whether you 74

See Boysen, op.cit. note 5, Einführung para. 11.

75

Concerning the deficiencies of EU law in that regard see Gabriel N. Toggenburg (ed.), Minority Protection and the Enlarged European Union: The Way Forward (Open Society Institute, Budapest, 2004); Niamh Nic Shuibhne, EC Law and Minority Language Policy (Kluwer, The Hague, 2002); Bruno de Witte, “Language Law of the European Union: Protecting or Eroding Linguistic Diversity?”, in Rachael Craufurd Smith (ed.), Culture and European Union Law (Oxford University Press, Oxford, 2004), 204-241, at 205 et. seq.

76

See Oeter, op. cit. note 17, 194 et. seq.

Working with the Language Charter Committee of Experts

approach it as a problem of “positive action” needed to cover the educational needs of such children, does not make a big diffference in the end. One might consider a lot of issue areas where both instruments end up in more or less the same pleas for measures of redress needed to overcome an untenable situation, be it in education, electronic media, language use before authorities or in cultural and social life. And these areas of convergence have become very visible in the nearly 15 years of monitoring practice of both treaty regimes. A document that makes the convergence of standards in practical detail really discernible is the recent (third) ACFC Thematic Commentary on Language Rights. This Thematic Commentary constitutes more or less a mapping exercise that uncovers a huge convergence between the “meaningin-use” of both instruments, at least as far as the interpretation and application of the treaty standards in the monitoring practice of both regimes is concerned. As the degree of substantial overlap between the two instruments became more and more visible during the last ten years, there were fears that—due to the diffferent focus and epistemic approach—the two diffferent treaty regimes might send divergent, if not contradictory messages to national authorities. The FCNM and the Language Charter cover a range of more or less identical issue areas and thus have a strong overlap in the problems covered, but there is no systematic mechanism taking care that the normative responses given to certain problems will really fijit together. In theory it could easily happen that a human rights perspective dictates a completely diffferent response to an educational or media problem than a cultural policy toolbox of language promotion. The resulting challenge becomes visible in such a reconstruction of the diagnosis of complementarity and overlap. It is up to the institutional mechanisms—and as its core, the treaty bodies forming the backbone of the two treaty regimes—to avoid inconsistencies in normative ordering and to take care that both instruments do not only converge in the problems covered, but converge also in the operationalization of the normative standards directed towards Member States. V.

The Parallel Universes of Monitoring

As described above, the normative responses given to the problems that result from political and cultural hierarchies prevailing in European nation-states (and the perils and challenges that arise for minorities from such deeply embedded hierarchies and power asymmetries) are at the outset rather diffferent in the legal regimes of the FCNM and the Language Charter. The same cannot be said for the institutional parts of both treaties. There exist some minor diffferences in institutional detail, but in es-

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sence the institutional construction of both treaty regimes looks rather similar.77 Both institutional set-ups of monitoring are based on periodic State Reports, complemented by additional NGO information. Both treaties provide for an autonomous monitoring body, composed of experts from Member States that have been elected in their individual capacity and are supposed to be independent from Member State bureaucracies. Even the details of the monitoring procedure look very much alike. State Reports are dealt with in detail by working groups composed of three Members of the monitoring body, working together with a Member of the Secretariat responsible for processing a specifijic Report. These working groups process the information available, identify open issues and try to clarify open issues through an on-the-spot visit carried out on site. The draft Reports prepared by the working group are then adopted by the plenary in a fijinal reading. The evaluation reports of both bodies are then presented to the CM, together with proposed sets of recommendations. When going more in detail, there are obvious diffferences in specifijic arrangements. These diffferences start with diffferent monitoring cycles: three years in the case of the Language Charter, fijive years in the case of the FCNM. The composition of the monitoring bodies diverge to a certain degree—the Advisory Committee has a limited number of 18 Members with a rotating system of “active” and “passive” Members, whereas the Independent Committee of Experts for the Language Charter has one Member per contracting State, thus growing bigger and bigger with every new ratifijication.78 The numbers of ratifijications diverge a lot, which means that the Advisory Committee has a much more encompassing grip on minority issues all over Europe, whereas the Committee of Experts is only monitoring the implementation of the Charter standards in roughly half the CoE Member Countries. On the other hand, the grip of the Committee of Experts on Member States is much denser in a time perspective—“after the Report” usually is “before the next Report” in the case of the Language Charter, which makes monitoring a kind of constant dialogue.79 The size of the Secretariats difffers quite a lot, and the organization of on-the-spot visits shows signifijicant diffferences in organizational details. Also the division of labour between working groups and the plenary is diffferent to a certain degree: the intensity of debate on the details of draft Reports in the plenary meetings is much higher in the Committee of Experts than in the Advisory Committee. Finally, the 77

See the comparative analysis of both mechanisms by Alan Phillips and Stefan Oeter, in CoE (ed.), Mechanisms for the Implementation of Minority Rights (CoE Publishing, Strasbourg, 2004), 109-129 and 131-157.

78

See Rein, op. cit. note 44, Art. 17 para. 3.

79

See Gramstad, op. cit. note 55, 33.

Working with the Language Charter Committee of Experts

draft Report of the Advisory Committee has to be adopted by the CM, together with the recommendations, whereas in the case of the Language Charter only the recommendations are adopted formally by the CM.80 In political terms, however, this does not make a big diffference, because political leverage requires the adoption of the proposed recommendations, which might get stuck even in case of the Language Charter, with the disadvantage that this blocks even the publication of the evaluation reports of the Independent Committee of Experts (the Advisory Committee has managed to overcome that hurdle through an additional arrangement). For a long time—nearly ten years—both monitoring procedures were more or less parallel universes. Both treaty bodies were struggling to establish an operational routine that achieves the desired objectives and tried to unfold the intrinsic logic of the specifijic instrument. Not much care was invested in looking into the practice of the neighbouring treaty body. Only the growing awareness of the degree of overlap in substance and of the potential challenge of inconsistent normative requirements induced both treaty bodies to enter into a more systematic dialogue with each other. The challenge was manifold. The fijirst challenge was to take into consideration the fijindings of the other body as far as the same country of evaluation is concerned. Processing the information contained in these (parallel) reports and looking onto potential inconsistencies in the approach was an essential condition of better coordination. The second challenge was the need to create a kind of institutionalized dialogue between both monitoring bodies, thus opening up a forum for concertation and coordination. And the third challenge was then to come up with the quest for institutional synergies voiced from the outside, resulting in ideas of (partly) merging the Secretariats and rationalizing the way reports are handled. VI.

The Quest for Better Coordination

The drive towards improved coordination of the monitoring activities of both treaty bodies—the Advisory Committee and the Independent Committee of Experts— was partly a result of learning processes within the monitoring bodies and their Secretariats. The initial understanding had been that of rigid complementarity, with the idea that both conventions cover rather diffferent aspects of the legal order of minority issues. It took quite some time to learn that beneath the surface of such a construction of complementarity there is a considerable overlap of issue areas regulated by both Conventions. But understanding this overlap meant also realizing that there exists a potential danger of normative inconsistency when dealing with the same 80

See also Iñaki Lasagabaster, op. cit. note 44, 527.

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political issues from divergent normative angles. Becoming aware of this challenge lurking in the background meant that there was a clear demand for intertextuality. Each of the two monitoring bodies had to take cognizance of the approach taken by the other body towards the problems in a specifijic country and had to reflect what diffferences in approach might mean for its own practice. It took some time to develop such a practice of intertextuality, but gradually it began to emerge. After a fijirst step of systematically reading the Country Reports of the other body when dealing with a certain country and processing the information contained in the parallel Report, a second step consisted of an attempt to cross-reference explicitly. Over the years, explicit references to specifijic paragraphs of the preceding Country Report of the Advisory Committee were showing up more and more in evaluation reports of the Committee of Experts. They are still not a daily routine in reports—there is yet room for improvement in the practice of cross-referencing—but there exists at last an established practice of incorporating explicit references to Reports under the FCNM monitoring in decisive questions where the Advisory Committee has taken the lead. To develop an answer to the second challenge took even more time. The need to create an institutionalized dialogue between both monitoring bodies, thus opening up a forum for concertation and coordination, was not easily understood. Both monitoring bodies tended to lead a monadic existence. For the Advisory Committee it seemed more intuitive to develop a close cooperation with the European Commission Against Racism and Intolerance (ECRI)—the other sister Committee with a certain overlap. The convergence in political thrust was much more obvious with ECRI than with the Language Charter. It is partly thanks to the effforts of Rainer Hofmann in his second term of presidency that both Committees developed an institutionalized dialogue. An (albeit limited) practice of inviting the relevant Member from the FCNM Secretariat to meetings of country-specifijic working groups of the Committee of Experts for an exchange of ideas on a common perception of the problems and the political messages to be sent to the country had been established already before. A direct dialogue between Members of both Committees developed only at a later stage. This development, at least partly, is also due to the growing pressure inside the CoE towards improving coordination between monitoring bodies in general. The interplay between Advisory Committee and Committee of Experts for the Language Charter was an obvious candidate for such enterprise. After several rounds of general coordination meetings inside the CoE, the two bodies started to talk directly with each other, in order to develop a common vision of what needs to be done. Joint meetings still are not a regular exercise, but there is a much improved spirit of dialogue between the two bodies. The way the Committee

Working with the Language Charter Committee of Experts

of Experts was deeply involved in the process of drafting and debating the 3rd Thematic Commentary on Language Rights, a document in essence mapping the area of overlap between FCNM and Language Charter, tells an encouraging story of such a positive spirit of dialogue. The third challenge is a rather recent development. The ongoing process of organizational rationalization inside the CoE Secretariat led to growing demands to look for potential synergies linked with a much closer cooperation of the Secretariats. Another driving force behind that move is a certain “monitoring fatigue” of Member States. The ministerial departments that have to handle all the diffferent reporting and monitoring procedures sometimes feel overburdened. Thus the question came up whether there might be options for fusing the monitoring procedures, with merged Secretariats handling the monitoring of a number of treaties, or whether at least specifijic on-the-spot visits might be undertaken jointly, with one Secretariat Member handling both monitoring procedures. An in-depth discussion showed, however, that there are limits to such attempts at rationalization. As long as the monitoring intervals diverge and States present diffferent Reports at diffferent points of time, a fusion of the monitoring procedures is not really conceivable. Even a practice of joint on-the-spot visits raises serious problems. Bearing in mind the basic complementarity of the treaty instruments, the focus of the monitoring exercises is rather diffferent. Although common points of interest and of discussion with NGOs and authorities do exist in a given State, the details that must be investigated for the purpose of monitoring diverge a lot in most cases. Some experiments in that direction have shown that linking up on-the spot visits tends to create additional complexities rather than to rationalize the use of resources. Both Committees thus decided to limit future pilot projects of “joint” monitoring to certain specifijic cases where this might make sense—with the understanding that in most cases it does not make sense. Even the project to entrust one Secretariat Member with country procedures both under the FCNM and the Language Charter raises doubts as to its positive efffects. The unifijication of the Secretariats of ECRI, the Advisory Committee and the Committee of Experts created the basis for such a project. Entrusting one Secretariat Member with the monitoring of a specifijic country might help to build up a consolidated “country-specifijic” expertise. But again, the focuses of the diffferent monitoring procedures diverge a lot, and usually it is much more difffijicult to develop an instrument-specifijic expertise than a country-specifijic expertise. Even the size and structure of evaluation reports difffer a lot, and the expertise needed to draft such reports is very specifijic for each treaty instrument, comprising also the crossreferencing inside the Country Reports and the need to look for consistency within

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the practice of a given monitoring body. Accordingly, it is still very open whether these avenues of “rationalization” make sense. VII.

Concluding Remarks

The experience of the relationship between Advisory Committee and Committee of Experts, which was recapitulated in this essay, tells an ambivalent story. The two treaty instruments—the FCNM and Language Charter—have a common ideational background, but developed out of completely diffferent political contexts. In the drafting phase (and also in the ratifijication process) there was a clear political intention to stress the diffferences between the instruments. As a result, the early understanding of the relationship between the FCNM and Language Charter was that of a strict complementarity. Both conventions—this was the idea—focuses on completely diffferent problems and political challenges and thus should be kept separate. But over the years, experts on both sides became more and more aware that—beneath the surface of complementarity—there exists a strong overlap in terms of issue areas covered and of legal questions regulated by both instruments. At the same time, the monitoring mechanisms that provide the institutional backbones of the treaty regimes resemble each other very much. The growing perception of overlap in matters of substance made clear that there is a need for coordination. Monitoring procedures under both instruments had—for quite some time—constituted parallel universes that tended to ignore each other. But with the awareness that both instruments regulate (at least in some parts) the same issues, the danger of inconsistent normative avenues and contradictory political messages became acute. There are two lines of reaction that seem plausible as a response to such a challenge, and both avenues were taken in order to improve the consistency of the Council of Europe´s system of “minority governance”. The fijirst avenue focuses on a growing quest for “intertextuality”: the monitoring procedures must take cognizance of the results of the other procedure, the evaluation reports must develop a practice of cross-referencing and of taking up the decisive normative choices made in the other system. The other avenue consists of an improved institutionalization of an organized dialogue between the Committees and their Secretariats. A lot of experimental moves have been made in that regard during the last years. There is still room for improvement, but important steps in search for a better concertation and coordination have been taken—and these moves have shown to lead to a better quality of monitoring. The hope that a deepened coordination at the level of Secretariats will help to spare resources, however, will not work out. An improved coordination between the monitoring mechanisms

Working with the Language Charter Committee of Experts

improves quality, but it does not spare personnel. To the contrary, improved coordination costs time and energy and adds even further to the strain on the Members of the Secretariats, as well as the experts engaged in the committee work.

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Chapter Eleven Working with the Committee of Experts on Issues relating to the Protection of National Minorities Detlev Rein*

I.

The History of the DH-MIN

A cat has—depending on the culture—seven or nine lives. The Committee of Experts on Issues relating to the Protection of National Minorities (DH-MIN) has already had three. In the extraordinary system of the Council of Europe (CoE), with its mixture of French and English, the DH-MIN is a committee of experts on issues relating to the protection of national minorities under the Steering Committee for Human Rights (CDDH).1 A.

The Three DH-MIN

The fijirst DH-MIN appears in the 32nd and 33rd CDDH Meeting Reports (May and October 1992),2 in which it says that the CDDH took note of the ad hoc Terms *

The author wishes to thank Dorothee Schechter of the German Federal Ministry of the Interior’s language service for her linguistic advice.

1

“The CDDH’s principal role, under the auspices of the Committee of Ministers, is to set up standards jointly accepted by the 47 member states with the aim of developing and promoting human rights in Europe and improving the effectiveness of the control mechanism established by the European Convention on Human Rights”. See .

2

DH-MIN, Protection of National Minorities Extracts of the Reports of the 32nd Meeting (May 1992), of the 33rd Meeting (October 1992) of the CDDH and Extract from the Report of the 39th Meeting of the Bureau of the CDDH (11 September 1992), DH-MIN(92)2, dated

Tove H. Malloy and Ugo Caruso (eds.), Essays in Honour of Rainer Hofmann Copyright 2013 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-21441-5 pp. 229-254

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of Reference that the Committee of Ministers (CM) had assigned to it by Decision CM/535/210592 of 20 May 1992 relating to the protection of national minorities. The following meetings were foreseen: one meeting and one working party in 1992 and two meetings in 1993. The meetings took place in November 1992, March 1993 and June/July 1993. A fijinal Report was presented to the CDDH.3 At its fijirst meeting the DH-MIN created a working party, which met twice: once in January and once in April 1993. 4 The second life of the DH-MIN began with the CM Decision of December 1997 on the Specifijic Terms of Reference for a DH-MIN.5 Regarding the “life expectancy” of this Committee, it was mentioned that its Terms of Reference were to be reviewed before the end of 1999, so the Committee was expected to work for longer than that. This DH-MIN convened three times: in March 1998, in October 1998 and in March 1999. In August 1999 the Chairperson of the DH-MIN was informed by mail that the Ministers’ Deputies had agreed to postpone the fourth meeting, which had been scheduled for October 1999. With that, the activities of (this) DH-MIN faded out. This (second) DH-MIN had a “Working Group on Dispersed Ethnic Minorities (DH-MIN GT-DEM)”, which published three papers.6 It became apparent that quite a number of CoE Member States were not content with closing down the DH-MIN. Germany even described that feeling in its second State Report to the FCNM: Germany once more suggests that the DH-MIN [Committee of Experts, Minorities], a body set up to deal with minority law issues, which—regrettably—has not been convened in the past few years, should discuss this matter in depth; it would be appropriate and expedient to have the Advisory Committee on the Framework Convention (ACFC) 30 October 1992; nearly all documents published in connection with the work of the DHMIN and related bodies are to be found on the website of the FCNM under the subtitle “Resources (Archives)” at (in that collection formerly restricted documents are declassified). 3

DH-MIN, Report to the CDDH, DH-MIN(93)4, dated 28 July 1993.

4

Ibid.

5

DH-MIN, Specific Terms of Reference, DH-MIN(98)1, dated 29 January 1998.

6

DH-MIN, Questionnaire Concerning the Work in Respect of ‘Dispersed Ethnic Minorities’, DH-MIN GT-DEM(99)1; DH-MIN GT-DEM, Replies to the Questionaires on Dispersed Ethnic Minorities, DH-MIN GT-DEM(99)2, dated 9 August 1999; DH-MIN GT-DEM, Meeting Report 8-10 September 1999, DH-MIN GT-DEM(99)3rev.2, dated 5 December 1999.

Working with the DH-MIN and the Committee of Experts on the Regional/Minority Language Charter (MINLang) take part in these discussions.7

At the 902nd meeting of the Ministers’ Deputies on 3 November 2004, the mandate for the (third) DH-MIN was adopted, and the Secretariat of the Framework Convention for the Protection of National Minorities (hereinafter “Framework Convention” or FCNM) started to prepare its fijirst meeting, which took place in May 2005.8 Ten more meetings followed, the last one in May 2010. Then again, the DH-MIN faded out, or, as it was put offfijicially, it was “suspended in 2010.”9 The word “suspended” can have diffferent meanings, and perhaps it was the intention of the relevant decision-making bodies to remain vague. So coming back to the picture of the cat: the question is still open as to whether the DH-MIN died for the third time or was only sent into an artifijicial coma. B.

Similar CoE Bodies

Soon after the end of the fijirst DH-MIN, an Ad Hoc Committee for the Protection of National Minorities (CAHMIN) was created by the CM, which adopted its Terms of Reference on 4 November 1993.10 CAHMIN met 13 times between January 1994 and November 1995. CAHMIN was followed by the Ad Hoc Committee on the Implementation Mechanism of the Framework Convention for the Protection of National Minorities (CAHMEC) established by a Decision of the CM in November 1995.11

7

Second Report Submitted by Germany Pursuant to Article 25, Paragraph 2 of the [FCNM]

8

The author was a Member (2005-2010), Chair (2005-2006) and Vice Chair (2007) of this

(received on 13 April 2005), ACFC/SR/II(2005)002, 4. third DH-MIN. 9

See FCNM website under the subtitle “Resources (Archives)”, op. cit. note 2.

10

CAHMIN, Terms of Reference of the CAHMIN on the Drawing up of the Framework Convention and a Protocol complementing the European Convention on Human Rights (ECHR) as Adopted by the Committee of Ministers on 4 November 1993, CAHMIN(94)1, dated 10 December 1993.

11

CAHMEC, Decisions of the Committee of Ministers and Terms of Reference, CAHMEC(96)1, dated 15 March 1996.

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C.

Membership

It is easy to describe how the bodies of the FCNM and the European Charter for Regional or Minority Languages (hereinafter “Language Charter” or EChRML) are composed: there is one expert per Member State to the EChRML, whereas there is one expert per Member State to the FCNM, but there are not more than 18 at a time. Issues such as qualifijication, method of proposal, selection, and duration of membership are dealt with in specifijic provisions.12 Regarding the DH-MIN, it was just the other way around: qualifijication was not examined, a selection by the CoE did not take place and there were no limits for the duration of participation; at the same time the structure was quite complicated. There were:13 – CoE Member States;14 – Participants (from other bodies of the CoE); – Other participants (from the European Commission and the EU Council, from states with observer status, from OSCE and UN bodies); – Observers (European countries that were not Members of the CoE); – Certain international non-governmental organizations (NGOs). Additionally, the DH-MIN was able to call on external experts or consultants. Whereas the Advisory Committee on the FCNM (hereinafter “Advisory Committee” or ACFC) has been a participant since 2008, as laid down in the Terms of Reference, it took one more year before the Committee of Experts of the Language Charter (ECRML), also became entitled to send representatives to the DH-MIN meetings.15 The representatives of the EChRML were allowed to participate as a result of discussions within the higher ranking bodies of the CoE. Here, for instance, 12

See Detlev Rein in Sigrid Boysen et. al. (eds.), Europäische Charta der Regional- oder Mind-

13

DH-MIN, Activity Report Period Between 1 January 2007 and 31 December 2008, DH-

erheitensprachen, Handkommentar (Dike, Zürich/St. Gallen, 2011), 380-384. MIN(2008)005, dated 16 October 2008. 14

The number of “Members” that CoE Member States were allowed to send was not limited, but there was only one vote per Member State. However, the CoE somewhat indirectly limited the number of government representatives to the meetings since it reimbursed travel expenses and the daily allowance for only one expert per Member State. The participants and observers were not entitled to vote.

15

CDDH, Terms of Reference of the Committee of Experts on Issues relating to the Protection of National Minorities (DH-MIN), 1048th Meeting 11-12 February 2009, at . 16

Second Report Submitted by Germany, op. cit. note 7.

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As regards the third DH-MIN, one aspect turned out to be especially ambiguous. Whereas membership of the FCNM and the EChRML bodies is restricted to countries that are parties to these instruments and membership in the ACFC is even further limited to a total of 18 experts, it is possible for representatives from all CoE Member States to attend DH-MIN meetings. Therefore it seemed, at fijirst glance, that this would open up the chance for discussing minority issues on a broader basis and for developing further instruments for the protection of national minorities. This, indeed, was the wish of those countries that pushed forward the idea of reinstalling the DH-MIN, as the DHMIN was the only European-wide body where national governments could regularly discuss this issue and share their knowledge of good practice. As the EU was and still is very reluctant in taking up the topic of national minorities, the annual OSCE Human Dimension Meeting is more of a platform for NGOs and the OSCE High Commissioner on National Minorities (HCNM)—for good reasons—as a rule works behind closed doors, the DH-MIN appeared to be a good instrument for the governments’ engagement on national minorities’ issues. But whereas the bodies of the FCNM and the Language Charter are only composed of persons with a positive interest in national minorities and their languages and sent only by Member States interested in minority protection, the meetings of the DH-MIN were also open to government representatives of Member States that—contrary to what they knew—claim that there are no national minorities on their territory or, for constitutional reasons, are not able to accept the concept of minorities and their special protection. Some of the States that hold such views have only very rarely or indeed never taken part in the DH-MIN sessions, but other Member States have grasped this opportunity to argue and vote in line with their views, thus denying the special needs of national minorities. Since the Rules of Procedure of bodies like the DH-MIN say that “they shall state their conclusions in the form of unanimous recommendations, or, if this proves impossible, they shall make a majority recommendation and indicate the dissenting opinions”,17 it has been possible for Member States to prevent unanimous Recommendations. However, such Recommendations are not really of value for developing international law. 17

CM, Resolution Res(2005)47 on Committees and Subordinate Bodies, their Terms of Reference and Working Methods (Adopted by the Committee of Ministers on 14 December 2005 at the 951st meeting of the Ministers’ Deputies), CM Resolution (2005)47, Appendix 1, Art. 11(c).; repeated in CM, Resolution CM/Res(2011)24 on Intergovernmental Committees and Subordinate Bodies, their Terms of Reference and Working Methods (Adopted by the Committee of Ministers on 9 November 2011 at the 1125th meeting of the Ministers’ Deputies), CM Resolution(2011)24.

Working with the DH-MIN

D.

Secretariat

It is obvious that a body like the DH-MIN, which consists of delegates from Member States who normally work in their capitals, needs a permanent secretariat to prepare the meetings, to commission experts from academia to prepare studies and to advise the Chair on all organizational questions inside and outside of the meetings. The Report of the fijirst meeting of the fijirst DH-MIN lists the Directorate of Human Rights, the Directorate of Legal Afffairs and the Directorate of Political Afffairs18 under the heading of “Secretariat”. For the second DH-MIN, it was the Directorate of Human Rights that served as Secretariat.19 And it was only in the Reports on the meetings of the third DH-MIN that the term “Secretariat for the Framework Convention and of the DH-MIN” within the Directorate General of Human Rights appeared for the fijirst time.20 II.

Terms of Reference and Output

A.

First DH-MIN

The European Commission for Democracy through Law, although established only in January 1990, agreed on a draft convention for the protection of national minorities as early as in February 1991.21 At the CM meeting in November 1991, Austria proposed a draft additional protocol to the ECHR.22 Based on these proposals and recommendations of the CoE’s Parliamentary Assembly (PACE), the CDDH was instructed by the CM to examine the possibility of formulating specifijic legal stand18

DH-MIN, Meeting Report 1st Meeting 23-27 November 1992, DH-MIN(92)7, dated 30 No-

19

DH-MIN, Meeting Report 1st Meeting 17-20 March 1998, DH-MIN(98)3, dated 27 March

vember 1992. 1998. 20

DH-MIN, Meeting Report 1st Meeting 10-12 May 2005, DH-MIN(2005)008rev, dated 10 June 2005.

21

Franz Matscher, “Der Entwurf einer ‘Europäischen Konvention zum Schutze der Minderheiten’ der Europarats-Kommission ‘Democracy through Law’, in Felix Ermacora, Hannes Tretter and Alexander Pelzl (eds.), Volksgruppen im Spannungsfeld von Recht und Souveränität in Mittel- und Osteuropa (Braumüller, Wien, 1993), 255-263.

22

Franz Pan, Der Minderheitenschutz im Neuen Europa und seine historische Entwicklung (Braumüller, Wien, 1999), 126; regarding both proposals see Rainer Hofmann, Minderheitenschutz in Europa (Mann, Berlin, 1995), 38-54.

235

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ards relating to the protection of national minorities.23 The CDDH established (the fijirst) DH-MIN with the following Terms of Reference:24 To study the possibility, having in mind the principle of complementarity of the work of the Council of Europe and that of the CSCE, of formulating specifijic legal standards relating to the protection of national minorities in the spirit of the European Convention on Human Rights. Work carried out within the United Nations will also be taken into account. The Committee will carry out its work in the light of the draft European Convention for the protection of minorities drawn up by the European Commission for Democracy through Law as well as the Austrian proposal for an additional protocol to the European Convention on Human Rights and other proposals for legal solutions. 25

Shortly before the July 1993 deadline, the Terms of Reference were slightly changed by a Decision of the Ministers’ Deputies in March 1993: the words “To study the possibility [....] of formulating specifijic legal standards [....]” were exchanged by “[....] to propose specifijic legal standards [....].”26 Thus the Terms of Reference now more directly called for establishing the basic principles of what was, later on, called the FCNM. In July 1993 the DH-MIN reported to the CDDH that the DH-MIN had not been able to reach consensus on a legal defijinition of the term “national minorities”, nor on a concept of “collective rights”.27 But they had succeeded in drawing up a list of 21 rights and freedoms, obligations for States and other legal principles concerning the protection of national minorities.28 According to the Report, they had also discussed the advantages and disadvantages of an additional protocol to the ECHR, of a special convention and of a framework convention.29 This shows that a clear answer was not given, but the already mentioned list of rights etc. shows that the Committee preferred a framework convention.

23

Framework Convention for the Protection of National Minorities and Explanatory Report, H(1995)010, dated February 1995, Explanatory Report paras. 3-4.

24

According to a Decision of the Ministers’ Deputies at their 476th Meeting (May 1992).

25

DH-MIN, Terms of Reference of the Committee of Experts for the Protection of National

26

DH-MIN (93)4, op. cit. note 3.

27

Ibid.

28

Ibid., Annex III.

29

Ibid.

Minorities, DH-MIN (92)1, dated 1 October 1992.

Working with the DH-MIN

According to Hofmann, the FCNM is a product of the 1990s.30 In the same way Kleber pointed out that the FCNM is fijirst of all to be seen as a reaction to the destabilizing efffect of the “ethnic factor” in Central and Eastern Europe.31 B.

CAHMIN

At the Vienna Summit in October 1993 the Member States of the CoE decided to draw up the above-mentioned convention “as a reaction to the armed conflicts in former Yugoslavia and the serious threats to security and peace in other parts of Europe.”32 The Heads of State and Government decided to commit themselves to protecting national minorities, and therefore, in an Appendix to the Vienna Declaration, instructed the CM to: –

–

draft with minimum delay a framework convention specifying the principles which contracting States commit themselves to respect, in order to assure the protection of national minorities. This instrument would also be open for signature by non-Member States; begin work on drafting a protocol complementing the European Convention on Human Rights in the cultural fijield by provisions guaranteeing individual rights, in particular for persons belonging to national minorities.33

As a reaction to this Decision of the Heads of State and Government, in November 1993 the CM adopted the Terms of Reference of CAHMIN, using the same wording used in the Vienna Declaration.34 The dates for completing the work were the end of June 1994 for the Framework Convention and the end of December 1994 for the protocol. CAHMIN presented its proposal for the Framework Convention in September 1994,35 leaving out the provisions for monitoring implementation, for which it asked 30

Rainer Hofmann, “Practical Implementation of the [FCNM]: Monitoring Reports of the Advisory Committee”, in Participation with equal rights for Sinti and Roma in Germany (Zentralrat Deutscher Sinti und Roma, Heidelberg, 2012), 154ff.

31

Heinrich Kleber, “Rahmenübereinkommen des Europarates zum Schutz nationaler Minderheiten”, Europäische Grundrechte Zeitschrift (EUGRZ) (1995), 262-268, at 262.

32

Hofmann, op.cit. note 30.

33

[FCNM] and Explanatory Report, op. cit. note 23, 12.

34

CAHMIN(94)1, op. cit. note 10.

35

CAHMIN, Meeting Report 6th Meeting 12-16 September 1994, CAHMIN(94) 28, dated 19 September 1994, Appendix V.

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Chapter Eleven – Detlev Rein

the CM for a draft.36 The CM delivered this draft together with some small corrections and amendments to the draft Framework Convention in October 1994.37 CAHMIN took its fijinal Decision on the draft FCNM in October 1994, and eventually the FCNM was adopted by the CM on 10 November 1994 and opened for signature by the CoE Member States on 1 February 1995. Non-Member States were and are also invited by the CM to become party to this instrument.38 With its November 1994 Decision, the CM instructed CAHMIN to continue and complete the drafting of the before-mentioned protocol by the end of December 1995. At their 554th meeting in January 1996, the Ministers’ Deputies decided to suspend the work of CAHMIN,39 although it had not yet fijinished its work on the protocol. C.

CAHMEC

In November 1995 the Ministers’ Deputies expected that the number of ratifijications required for the FCNM to enter into force (12) would be achieved quickly, and believed that the process might be accelerated by giving Member States a clearer idea of how the Convention would be monitored. So they discussed Articles 24-26 FCNM, which makes the CM the responsible body for monitoring the Convention and for determining the composition and procedure of the Advisory Committee that is to assist it. CAHMEC was asked to clarify any remaining questions and to identify possible options raised by the implementation of Article 24-26 FCNM by the end of September 1996. 40 The Members of CAHMEC were not only bound by the Terms of Reference, but also by additional guidelines of the Ministers’ Deputies containing detailed requests regarding the “[c]omposition and related aspects of the advisory committee.” 41 With these instructions in mind, the Committee drafted the wording42 which was adopt36 37

Ibid., Appendix IV. CAHMIN, Meeting Report 7th Meeting 10-14 October 1994, CAHMIN(94)32, dated 14 October 1994, Appendix III.

38 39

[FCNM] and Explanatory Report, op. cit. note 23. CAHMIN, Documents Containing Summaries of the Decisions of the European Commission of Human Rights and the [ECtHR], CAHMIN(95)2, dated 21 February 1995, Addendum.

40

CAHMEC, Decisions of the [CM] and Terms of Reference”, CAHMEC (96)1, dated 15 March 1996.

41 42

Ibid., Addendum 11. CAHMEC, Final Activity Report Containing Draft Resolution with Rules of the [CM] on the Monitoring Arrangements under Articles 24-26 of the [FCNM], CAHMEC(97)6, Adden-

Working with the DH-MIN

ed by the CM on 17 September 1997 as Resolution (97)10. In footnotes added to the draft, the Committee highlighted some problems they particularly wished to focus on. One of these problems was the question as to when the Committee assigned to the FCNM should take up its work. According to Article 25 FCNM, State Parties have to transmit the fijirst State Report within a period of one year following the entry into force of the FCNM. As Rule 2 stipulated that there had to be at least 12 ordinary Members and as, according to Rule 28, the ACFC was to begin its work as soon as 12 ordinary Members had been appointed, CAHMEC saw the problem that State Parties might not, or not immediately, nominate persons to be elected to the Committee and that, in such a case, strict adherence to the Rules might cause a delay or even prevent the Committee from starting its work altogether. So CAHMEC added the Rule that the Committee was to commence its work in any case not later than one year after the entry into force of the FCNM. 43 Another problem was that, according to the above-mentioned guidelines, an entry on the list would normally remain valid for (only) four to six years. CAHMEC took the view that it would not be appropriate to provide for a fijixed period of validity of an entry on the list. The Secretariat estimated that, in the event that there was a very large number of State Parties, all of which are nominating experts for the list, the longest period between somebody’s election and the beginning of his or her term of offfijice could be six years. A provision like the above-mentioned one would make it necessary to re-nominate and re-elect someone to the list with the possibility remaining that an expert elected to the list might still never serve a term of offfijice as an ordinary Member. So CAHMEC formulated Rule 12 stipulating that every person on the list would serve at some stage as an ordinary Member.44 Following a decision of the CM on 17 September 1997, these Rules came into force as Resolution (97)10. 45

dum; on that process see also: John Packer, “Situating the Framework Convention in a wider context”, CoE (ed.), Filling the Frame. Five years of Monitoring the [FCNM]. Proceedings of the Conference held in Strasbourg, 30-31 October 2003 (CoE Publishing, Strasbourg, 2004), 43-51, at 44. 43

CM, Resolution (97) 10: Rules Adopted by the [CM] on the Monitoring Arrangements under Articles 24 to 26 of the [FCNM], Resolution(1997)010, adopted by the CM on 17 September 1997 at the 601st meeting of the Ministers’ Deputies, Article 28.

44

CAHMEC (97) 6, op. cit. note 42, footnote to Rule 12.

45

It was on the basis of this Resolution that Germany twice proposed Rainer Hofmann as a candidate for the “List”, that the CM elected him twice to the “List” and that, in the end, the Advisory Committee elected Rainer Hofmann twice as President according to the

239

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Chapter Eleven – Detlev Rein

D.

The Second DH-MIN

Whereas the fijirst DH-MIN and its immediate followers CAHMIN and CAHMEC were created to develop the FCNM, the idea of a European forum for reflecting on minority matters materialized with the second DH-MIN. This aim was expressed in the following terms of reference: i.

ii.

iii.

to act as a forum for the exchange of information, views and experience on policies and good practices for the protection of national minorities at the domestic level and in the context of international instruments; to identify and assess ways and means of further enhancing European cooperation on issues relating to the protection of national minorities and, where appropriate, to make proposals to this efffect for consideration by the CDDH; in so doing it shall, where appropriate, – carry out or commission relevant policy-research; – involve in its work representatives of national minorities and non-governmental organisations with recognised competence in this fijield. 46

These Terms of Reference were supposed to be reviewed before the end of December 1999, but before that date the last (third) meeting of the DH-MIN took place in March 1999. The main output of this DH-MIN was an expert study submitted on its request on “The Participation of Minorities in Decision-Making Processes” by the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. 47 The aim was to “develop a typology of diffferent forms of participation of minorities in decision-making processes and identify parameters relevant to the choice of a specifijic form for a given situation.” The study addressed the following aspects: Rules of Procedure adopted by the Advisory Committee in line with Rule 37 of Resolution(1997)010, op. cit. note 43. 46 47

DH-MIN(98)1, op. cit. note 5. This important issue was dealt with in three steps: the Secretariat developed a questionnaire and collected the answers of 32 governments and on the basis of this compilation a synthesis was prepared. These documents prepared the ground for the aforementioned study. See Dres Frowen & Roland Bank, Participation of Minorities in DecisionMaking Processes, Expert Study submitted on requeste of the DH-MIN, DU-MIN(2000)1 available at .

Working with the DH-MIN 1. 2. 3. 4. 5.

Parliamentary representation of minorities and exercise of parliamentary control; Representation of minority interests in governmental agencies; Informal channels of participation, such as round tables or councils; Diffferent forms of autonomy; Approaches taken in federal systems. 48

The reflections and results of this expert study are of timeless value and provided guidance for the working methods of the DH-MIN, especially the next (third) DHMIN. The committee of governmental experts discusses a question of common concern related to the situation of national minorities and/or good practice as to how to handle this issue, and it decides that this item is suitable for further exploration. If it is felt that up-to-date data (legal, factual, fijinancial) is needed for a good analysis, the Chair and the Secretariat develop a questionnaire on the issue. Such a questionnaire usually yields good results, because it is directed to all CoE Member States, who are in general more willing to answer a questionnaire of the CoE on the basis of their Decision in a CoE Committee than one sent to them by a perhaps unknown academic from somewhere abroad. If some Member States are late in responding—something which always can happen—there is the Secretariat to remind them of their common Decisions. Once the data are collected, a researcher or a small number of researchers, chosen by the Chair together with the Secretariat, prepares a draft Report on their analysis. This fijirst version is then discussed with the DH-MIN at its next meeting and the authors receive additional questions or new facts or criticism. After that, the fijinal product is published with the consent of the DH-MIN and often contributes to the literature on minority questions. 49 E.

DH-MIN GT-DEM

In November 1998 the Ministers’ Delegates set up a DH-MIN subgroup, called the DH-MIN GT-DEM, tasked with the following ad hoc Terms of Reference: –

48 49

To undertake a study on “dispersed ethnic minorities” as well as prospects for co-operation between the Council of Europe on the one hand and the European

Ibid., at 3. Problems with this method arose in the third DH-MIN and will be discussed later in the chapter.

241

242

Chapter Eleven – Detlev Rein

–

Institute for Dispersed Ethnic Minorities (EIDEM) and other bodies pursuing similar objectives on the other hand; to submit its fijindings to the CM through the CDDH.50

The deadline for the DH-MIN GT-DEM to complete its work was the end of December 1999. The background to these very special Terms of Reference may have been a letter by the Lithuanian Permanent Representative to the Chair of the Rapporteur Group on Education, Culture and Sport (GR-C) of 7 October 1998, in which Lithuania asked the CoE to award its auspices to the above-mentioned EIDEM.51 According to its Terms of Reference, the DH-MIN GT-DEM fijirst sent out a questionnaire to Member States enquiring about which groups could be considered “dispersed ethnic minorities” on their respective territories. The answers were very diverse and suggested that there was no such thing as a common defijinition of that term amongst European governments.52 It was not clear whether dispersed ethnic minorities differed in principle from national minorities, whether the notion of “dispersed” was reserved for groups that lived in more than one country and whether the lack of a kin-state was a precondition for being regarded as a “dispersed ethnic minority”.53 On the question as to whether it would be desirable and/or possible to propose a defijinition for the term “dispersed ethnic minorities”, the fact that no normative, standard-setting work was envisaged led the working group to conclude that there was no need to propose adopting a formal defijinition. The group was also mindful of the fact that the drafters of the FCNM had decided not to defijine the term “national minorities”.54 Nevertheless, the group tried to identify characteristics all or most of

50

DH-MIN, Ad hoc Terms of Reference, DH-MIN(99)5, dated 22 February 1999.

51

GR-C, European Institute for Dispersed Ethnic Minorities, GR-C(98)16, dated 3 November 1998. Only a few traces of this Institute can be found on the Internet: it was mentioned in the case studies on the CEMES website in the year 2000 (see ) and the personal homepage of Dr. Letas Palmaitis (see ), who was one of the three founders of the Institute together with Bronislavas Juozaz Kuzmickas and Emanuelis Zingers. Neither the catalogues of the largest German libraries nor the catalogue of ECMI contain any reference to an EIDEM publication.

52

DH-MIN, Final Activity Report on ‘Dispersed Ethnic Minorities’, DH-MIN(99)7rev.3, dated 20 December 1999, Appendix I.

53

Ibid.

54

Ibid., 3.

Working with the DH-MIN

which would apply to groups of persons who could be considered to be “dispersed ethnic minorities”: – – – –

they have no kin-state; they live in more than one state; persons belonging to these groups share common ethnic, religious, linguistic or cultural characteristics; they do not form a majority in any Council of Europe Member State.55

The group was not able to solve the question as to whether a “dispersed ethnic minority” would, at the same time, also qualify as a “national minority” under the FCNM.56 This is just one example of how helpless this group was, and illustrates in the eyes of the author of this contribution that the undertaking of this group was doomed to failure, especially considering that there was and still is no precise CoE-wide defijinition of what is a national minority. The author of this article takes the view that the question as to whether a group is to be regarded as a dispersed ethnic minority always has to be decided by each individual State on the basis of its own defijinition of the term and cannot be answered generally for all CoE States. For instance, the German minority in Hungary (being acknowledged by Hungary as a national minority) appears to be a dispersed ethnic minority because it lives scattered all over the country and it does not matter that there is another State (Germany) that is the kinstate and where Germans are the majority. Regarding cooperation between the CoE and EIDEM, the group gave a very hesitant answer. They considered it to be premature to take any decision on this point.57 F.

The Third DH-MIN

1.

Terms of Reference

The Terms of Reference of the third DH-MIN were the result of intensive discussions in higher ranking bodies of the CoE and to a large extent reflected the fear of some Member States which had not ratifijied the FCNM that the situation in their States would be monitored although they were not subject to the monitoring system of the FCNM: 55

Ibid., 4.

56

Ibid.

57

Ibid., 5.

243

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Chapter Eleven – Detlev Rein i.

ii.

iii.

iv.

v.

To act as a forum for the exchange of information, views and experience on policies and good practices for the protection of national minorities at the domestic level and in the context of relevant international legal instruments, including those of the [CoE], without pursuing activities relating to monitoring the situation in individual Member States; To carry out a reflection on transversal issues relevant to Member States, drawing on the results of the monitoring mechanism of the [FCNM] and, where appropriate, the work of other bodies dealing with related issues and especially the OSCE [HCNM]; To identify and assess ways and means of further enhancing European cooperation on issues relating to the protection of national minorities and, where appropriate, to make proposals to this efffect for consideration by the CDDH, including studies and draft recommendations on issues of general interest; To prepare draft opinions for the CDDH, on relevant issues, including in particular recommendations of [PACE] or the Congress of Local and Regional Authorities of the [CoE]; In so doing it shall, where appropriate, – carry out or commission relevant policy-research; – involve in its work representatives of national minorities and non-governmental organisations with recognised competence in this fijield, notably by organising hearings with them.58

These Terms of Reference were to be reviewed before the end of December 2006. In January 2007, the Ministers’ Deputies renewed the DH-MIN’s Terms of Reference for the years 2007-200859 by more or less taking over the previous Terms of Reference, while adding a special clause that “[w]hile carrying out its terms of reference, the DH-MIN shall ensure full respect of the functioning of the monitoring mechanism of the [FCNM] and other monitoring mechanisms in related fijields.” These Terms of Reference were to expire at the end of December 2008. It is interesting that the DH-MIN was supposed to draw on the results of the monitoring mechanism of the FCNM, whereas other bodies and their work that could have also been of interest—for instance monitoring by the EChRML or the proposals of the Committee of Experts on Roma and Travellers (MG-S-ROM)—were 58

DH-MIN, Activity Report Period between 1 January 2005 and 31 December 2006, DHMIN(2006)022, dated 23 October 2006, Appendix 1.

59

DH-MIN, Activity Report, Period between 1 January 2007 and 31 December 2008, DHMIN(2008)005, dated 16 October 2008, Appendix I.

Working with the DH-MIN

not mentioned. In February 2009 the Ministers’ Deputies renewed these Terms of Reference for the year 200960 and in February 2010 for the years 2010 and 2011.61 2.

Tour de Table

One item that was always on the agenda of all DH-MIN sessions was the tour de table, during which the representatives of the Member States were asked to share up-todate information on the situation of national minorities and the relevant laws and practice, the interactions with the Committees of the FCNM and the EChRML, as well as State Reports and on-the-spot visits. There is not much documentation on these discussions and some information was only of interest at that specifijic point in time, but still very helpful for Member States and the other participants to understand the developments of that time. 3.

Non-binding Nature of the Results

With their work, the bodies of the CoE aim not only to exchange information or to produce documents for public use, but also to develop instruments for better cooperation among Member States and for improving the welfare of European citizens. The objective is to produce documents of a binding nature, if possible Conventions, Charters or Protocols to the ECHR, or when that is not possible, at least Recommendations. However, it became apparent very quickly in the DH-MIN that States that were not willing to subscribe to the idea of granting special protection to national minorities were not prepared to adopt any document of a binding nature, however small that binding content may have been. Since Decisions by the expert groups had to be taken unanimously, even a vast majority of States was not able to pass any document with any degree of binding content, and unanimous Decisions were not even possible on documents of a purely advisory nature.62 These problems started already during the preparation of the fijirst document, the “DH-MIN Handbook on Minority Consultative Mechanisms”. Publishing this Handbook was possible only with the following wording on its front page:

60 61

Terms of Reference […], op. cit. note 15. Terms of Reference of the [DH-MIN], 1077th Meeting 24 February 2010, at .

62

On this problem, see the end of Part I, Section C.

245

246

Chapter Eleven – Detlev Rein This handbook is based on contributions prepared by Marc Weller, Director of the European Centre for Minority Issues and Reader in International Law, University of Cambridge. It is aimed at assisting States in developing further their consultation policies of minorities, including through the enhancement of their minority consultative mechanisms. The handbook is not a normative document, and its dissemination does not necessarily imply that all Member States agree with its content.63

4.

Thematic Output

Thematically, the DH-MIN dealt inter alia with the following issues.64 a)

Consultative Arrangements of National Minorities

During its fijirst meeting the DH-MIN decided to examine this topic with a view to preparing a document on good practices in this fijield. A questionnaire on this matter was sent to the Member States65 and served as a basis for an analytical report prepared by Marc Weller, Director of the European Centre for Minority Issues (ECMI).66 In the context of the DH-MIN’s work on this topic, a conference on the “[p]articipation of national minorities in public life: the role of consultative bodies” was organized in March 2006 in Romania.

63

DH-MIN, Handbook on Minority Consultative Mechanisms, DH-MIN(2006)012, dated 20 October 2006. Another example is DH-MIN, Effective Participation of National Minorities. A Comment on Conceptual, Legal, and Empirical Problems−Report prepared by Joseph Marko, DH-MIN(2006)014, dated 20 October 2006.

64

This overview is based on: DH-MIN, Activity Report Period between 1 January 2005 and 31 December 2006, DH-MIN(2006)022, dated 23 October 2006; DH-MIN, Activity Report Period between 1 January 2007 and 31 December 2008, DH-MN(2008)005, dated 16 October 2008; DH-MIN, Meeting Report 9th Meeting 1-2 April 2009, DH-MIN(2009)006, dated 1 July 2009; DH-MIN, Meeting Report 10th Meeting 9-10 November 2009, DH-MIN(2009)010 rev.2, dated 18 January 2010; and DH-MIN Meeting Report 11th Meeting 5-6 May 2010, DHMIN(2010)004, dated 14 June 2010.

65

DH-MIN, Replies to the Questionnaire on Consultation Arrangements Concerning National Minorities, DH-MIN(2005)010, dated 21 October 2005.

66

DH-MIN, Consultation Arrangements Concerning National Minorities−Report Prepared By Marc Weller, Director, European Centre For Minority Issues, DH-MIN(2005)011-Final, dated 24 February 2006.

Working with the DH-MIN

b)

Specific Regulations contained in Electoral Law and the Law of Political Parties relevant to National Minorities

In order to assist the DH-MIN in its work on this subject, the Secretariat of the European Commission for Democracy through Law (the Venice Commission) gave an overview of the work of the Venice Commission in the fijield of electoral legislation. A paper on this matter was prepared by David Hine of the Centre for the Study of Democratic Government in Oxford67 and was complemented by a paper prepared by Joseph Marko from the University of Graz.68 Information contained in contributions submitted by the DH-MIN Members and in already existing documents on this subject69 were taken into account. The fijinal text of the report by Mr. Hine was accepted for publication at the 2009 spring meeting.70 c)

Access of National Minorities to the (New) Media

During its second meeting, the DH-MIN decided to examine this issue. Since there was no consensus on the scope of the topic, an informal working group composed of the DH-MIN Members from Austria, Moldova and the Russian Federation was established and tasked with formulating proposals on the subject matter. To assist the working group in its task, an analysis regarding “[a]ccess of national minorities to the media: new challenges” was prepared by Tom Moring, Professor of Communication and Journalism at the Swedish School of Social Science, University of Helsinki.71 Karol Jakubowicz, Chair of the CoE Steering Committee on the Media and New Communication Services (CDMC), and Tarlach McGonagle from the University of Amsterdam provided comments on this analytical study.72 In order 67

DH-MIN, Electoral Systems, Party Law and the Protection Of Minorities−Report Prepared By David Hine, DH-MIN(2006)013, dated 2 April 2009.

68 69

DH-MIN(2006)014, op. cit. note 63. DH-MIN, Information Provided by the DH-MIN Members on the Regulations Contained in Electoral Laws and the Laws on Political Parties that are of Relevance to National Minorities, DH-MIN(2006)002 rev.2, dated 24 February 2006.

70

DH-MIN(2006)013, op. cit. note 67, prov. 3.

71

DH-MIN, Access of National Minorities to the Media: New Challenges−Report Prepared

72

DH-MIN, Comments on the Report on ‘Access of National Minorities to the Media: New

By Tom Moring, DH-MIN(2006)015, dated 20 November 2006. Challenges’−Report Prepared By Karol Jakubowicz, DH-MIN(2006)017, dated 20 November 2006; and DH-MIN, Comments on the Report on ‘Access Of National Minorities To

247

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Chapter Eleven – Detlev Rein

to identify best practices which could be emulated by other interested Member States, the Committee drew up a questionnaire.73 The results of the expert studies by Moring and McGonagle were to be published according to a decision at the 2009 spring meeting.74 d)

Ethnic Data Collection and Appropriate Methods for Gathering such Data

At its fijifth meeting, the DH-MIN decided to examine the issue of ethnic data collection and the appropriate methods for gathering such data, taking into consideration the standards developed and applied by the CoE, its Member States and in the context of the EU. After intense discussions the Committee decided to devise a “[q] uestionnaire on ethnic data collection”.75 At the 2009 spring meeting Patrick Simon from the Institut national d’études démographiques (INED) presented an analysis of the responses to this questionnaire.76 5.

The Limitations of the Working Method

The work done and the progress achieved after 11 meetings showed clearly the limitations of these working methods. With only two meetings per year and a lack of a continuous dialogue among Member States, as well as some of them intentionally The Media: New Challenges’−Report Prepared by Tarlach Mcgonagle, DH-MIN(2006)016, dated 20 November 2006. 73

DH-MIN, Questionnaire on the Access of National Minorities to the New Media in the Information Society, DH-MIN(2007)001, dated 28 February 2007, Appendix X. For responses see DH-MIN, Information Provided by the DH-MIN Members on the Questionnaire on the Access of National Minorities to the New Media in the Information Society, DHMIN(2007)009 rev.3, dated 12 June 2008.

74

DH-MIN, Analysis of Information Provided by DH-MIN Members on the Questionnaire on the Access of National Minorities to the New Media in the Information Society: Overview of Information Provided by States and Possible Validity Concerns−Report Prepared by Prof. Tom Moring and Dr. Tarlach McGonagle, DH-MIN(2009)003, dated 9 March 2009.

75

DH-MIN, Questionnaire on Ethnic Data Collection, DH-MIN(2007)012, Appendix IX; for responses see DH-MIN, Information Provided by the DH-MIN Members on the Questionnaire on the Ethnic Data Collection, DH-MIN(2008)001 rev.1, dated 16 June 2008.

76

DH-MIN, Summary of Replies to the Questionnaire On Ethnic Data Collection−Report Prepared by Patrick Simon, DH-MIN(2009)002 rev, dated 12 November 2009.

Working with the DH-MIN

hampering any progress, the result was a rather long lagtime between an item being proposed and the publication of a fijinal document on this issue. Collecting information by means of questionnaires sent to the Member States turned out to be successful only to a limited extent due to the sometimes very different structures of state organization, administrative law and practice, and the respective situation of the national minorities. It makes quite a diffference whether a State is centrally organized or has a federal structure. A look at the methods applied by the Member States to ratify the Language Charter shows a broad variety of approaches. Whereas some States like Armenia, Croatia, Montenegro and Poland have chosen the same menu for all languages on their territory, other Member States like the Czech Republic, Germany, Romania and Slovakia have a very diffferentiated program for their language groups; this approach can be observed in particular, but not only, with regard to federal States. In view of such a diverse picture it is not astonishing that a simple one-size-fijits-all attitude in designing questionnaires will not bring about very fruitful results. The same problems are encountered by the authors of analytical papers. It is very difffijicult or perhaps impossible to know and understand the constitutional and administrative law of all Member States of the CoE.77 As a result of all this, it has not been possible to achieve convincing results by means of questionnaires and expert reports for complicated questions, such as the fijinancing of national minorities.

77

Perhaps that explains why monitoring the progress in the Member States of the EChRML and the FCNM is conducted in the following way. It is common practice in the Committee established under the Language Charter that the expert in respect of the State to be monitored is a Member of the working group to that country (see Rein, op. cit. note 12, Art.16, Rn. 8). In the FCNM Working Groups, the expert in respect of the monitored Party is not a Member of the Working Group. However, in view of the Rule limiting the number of experts to 18 (Rule 2 Resolution(1997)010, op. cit. note 43), there is also the exception in place that during the debate on the State Report the expert “from the List” shall be invited as an additional Member (Rule 19 Resolution(1997)010) and for the discussion of the different principles for the composition of the Working Groups in see Rein, op. cit. note 12, Art.16, Rn 8).

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6.

The Fundamental Question: Adequate Protection of National Minorities by Additional Rights?

The perhaps most important discussions within the DH-MIN took place during its second to fourth meetings.78 One of the topics proposed for the DH-MIN to deal with in the future came from Greece, namely to “have a discussion with experts of the CoE and the EU on the use of the principle of non-discrimination as a legal and practical instrument of the protection of minority groups”.79 The DH-MIN decided that a study should be commissioned on the impact that international rules on nondiscrimination relevant to Europe had on the protection of national minorities. At the DH-MIN’s third meeting in Romania in spring 2006, Rainer Hofmann gave an initial presentation. He outlined the various international non-discrimination norms existing at the international level that could have an impact on national minorities. He highlighted the importance of the principle of non-discrimination to national minorities but could prove, citing examples from case law, that the justifijied interests of national minorities could not be met adequately by these norms and standards alone. These court decisions suggested, according to Hofmann, that specifijic standards for minorities, as established by the FCNM, were necessary to address the basic needs of minorities. The DH-MIN agreed to continue its work and decided to invite Rainer Hofmann together with another expert in the fijield of nondiscrimination to present a document for the next meeting. A document composed of four chapters was prepared with individual chapters drafted by Hofmann, Olivier de Schutter, Professor at the University of Louvain, and Kristin Henrard, Senior Lecturer at the University of Groningen.80 These reports 78

Activity Report DH-MIN(2006)022, op. cit. note 64 and the Meeting Reports DH-MIN, Meeting Report 2nd Meeting 26-28 October 2005, DH-MIN(2005)014, dated 17 November 2005; DH-MIN, Meeting Report 3rd Meeting 8-10 March 2006, DH-MIN(2006)008, dated 20 March 2006; and DH-MIN, Meeting Report 4th Meeting 19-20 October 2006, DHMIN(2006)024, dated 14 December 2006.

79

DH-MIN(2005)014, ibid., 5.

80

DH-MIN, The Impact of International Norms on the Protection of National Minorities in Europe: The Added Value and Essential Role of the [FCNM]−Report Prepared by Rainer Hofmann, DH-MIN(2006)018, dated 5 December 2006; DH-MIN, [EU] Legislation and the Norms of the [FCNM]−Report Prepared by Olivier De Schutter, DH-MIN(2006)019, dated 23 October 2006; DH-MIN, The Impact of International Non-Discrimination Norms in Combination with General Human Rights for the Protection of National Minorities: The European Convention on Human Rights−Report Prepared by Kristin Henrard, DH-

Working with the DH-MIN

were presented to the fourth meeting of the DH-MIN. Hofmann gave a presentation on “[t]he impact of non-discrimination norms and of the norms of the [FCNM]” outlining the various international non-discrimination norms that have an impact on national minorities.81 De Schutter gave detailed information on the non-discrimination guarantees in the EU context, drawing also on the Report on National Minorities prepared by the EU Network of Independent Experts on Fundamental Rights.82 Henrard delivered a presentation on the impact of the European Court of Human Rights (ECtHR) and UN case law in the fijield of non-discrimination on the protection of national minorities.83 Whereas de Schutter and Henrard, in the content of their presentations, stayed within the limits outlined by the respective titles of their presentations, Hofmann considered also the underlying question: in order to adequately protect national minorities, is it enough that existing rules and standards on non-discrimination are complied with, or is something else needed “on top”? Is non-discrimination the highest degree of protection possible, or is it allowed to go further and apply something that is called “positive discrimination” or “positive action”? Hofmann’s conclusion was very clear and encouraging for all those States that are parties to the FCNM and the Language Charter, as well as for the national minorities: Based upon the foregoing, it seems justifijied to conclude that the goal of adequately protecting the rights of persons belonging to national minorities cannot be achieved solely by operation of the right to non-discrimination but requires the existence of additional rights. At the outset, it must be stressed that all human beings are, as such, holders of the right not to be discriminated against. Since persons belonging to national minorities are, of course, human beings, they share this right, this protection resulting from the prohibition against discrimination, with all persons belonging to the “majority”. And it seems that for persons belonging to that “majority”, to be protected by the generally applicable human rights, including the right to non-discrimination, is sufffijicient in order to safeguard their individual right to preserve and develop their identity. MIN(2006)020, dated 25 October 2006; DH-MIN, The Impact of International Non-Discrimination Norms in Combination with General Human Rights for the Protection of National Minorities: Several United Nations Human Rights Conventions−Report Prepared by Kristin Henrard, DH-MIN(2006)021, dated 24 October 2006. 81

DH-MIN(2006)018, ibid.

82

DH-MIN(2006)019, op. cit. note 81.

83

DH-MIN(2006)020, op. cit. note 81; DH-MIN(2006)021, op. cit. note 81.

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Chapter Eleven – Detlev Rein However, in order to assure to persons belonging to national minorities their individual right to maintain and develop their distinct identity, more is needed: a set of specifijic human rights, a set of human rights protecting the specifijic rights which such persons need in order not to be assimilated against their will into the majority population and to preserve and develop their distinct identity.84

If the aim of proposing this topic and of engaging additional experts was to put the mere practice of non-discrimination norms on the same level as awarding additional rights to national minorities, it failed. The report of the meeting, which, as always, had to meet with the consensus of all participating Member States, found some very lean words for this big discussion: In the ensuing discussion, various delegations welcomed the contributions of the experts. A number of delegations emphasized the necessity to take into account the diversity of opinions and approaches expressed within the DH-MIN on the protection of the rights of persons belonging to minorities. Also, they underlined the importance and the efffectiveness of the principle of non-discrimination in the fijield of protection of rights of persons belonging to minorities or vulnerable groups. The Committee decided to issue the reports, together with the comments of the Governments as documents accessible to the public.85

III.

Cooperation Between the DH-MIN and the ACFC

Having a look at how the DH-MIN cooperated with the FCNM bodies is interesting only with regard to the third DH-MIN; at the time of the fijirst DH-MIN the FCNM did not yet exist and the second DH-MIN did not last long enough to develop fruitful cooperation. A factor of a purely bureaucratic nature initially fostered cooperation between the DH-MIN and the ACFC considerably: during the existence of the third DH-MIN, both bodies belonged to the then Directorate General of Human Rights (DGII) within the administrative structure of the CoE, and both were served by the same Secretariat. So it was quite natural that, with the help of the Secretariat, the DH-MIN turned to the ACFC for expert advice and the ACFC, in turn, drew on the meetings and documents of the DH-MIN for up-to-date information. Thus a fruitful exchange developed, and often the ACFC Chairs took part in the DH-MIN meetings. 84

DH-MIN(2006)018, op. cit. note 80, 25.

85

DH-MIN(2006)024, op. cit. note 78, 6(f).

Working with the DH-MIN

The way this cooperation developed illustrates how important circumstances can sometimes be that initially arose for purely organizational reasons. For many years the EChRML and the ECRML came under the Directorate General of Education, Culture and Heritage, Youth and Sport (DGIV); at that time the Secretariats of the two Committees didn’t have close contacts, although ever since its creation the DHMIN had called for such a strengthening of ties. However, with the reorganization of the administrative structures of the CoE on 1 October 2011, the newly-formed Directorate General of Democracy (also DGII) assumed responsibility for the two Conventions, and together with the European Commission against Racism and Intolerance (ECRI) they formed the National Minorities and Anti-discrimination Department. Since then, cooperation has intensifijied a lot and has become much more natural, something which has led to improved working results and an optimization regarding the use of resources. IV.

Conclusions

As illustrated above, the three DH-MINs together produced quite a number of good proposals and analyses. The fijirst DH-MIN, CAHMIN and CAHMEC, for example, contributed a lot to the creation of the FCNM. Since it had to pass all documents with unanimity, the third DH-MIN was not able to achieve more than just analytical papers and did not pass any Recommendations or even higher-level documents that could have been of importance for developing binding international law. So the question remains as to whether it was a worthwhile efffort to create a body that was supposed to deal with a subject matter so controversial amongst the CoE Member States. As can be seen by the number of States that have not ratifijied the FCNM or the Language Charter, it has not yet been possible to convince all Member States of the advantages of having legal provisions created specifijically to protect and promote national minorities. One answer to this question could be to consider in contrast the two committees established under the FCNM and the Language Charter, as these two bodies have a very long life expectancy to the point of being quasi permanent; after all it is difffijicult to imagine that the Convention or the Charter and their structures will cease to be in force. However, the Advisory Committee on the FCNM is comprised of only 18 Members out of more than 40 CoE Member States, and its composition is determined more by chance (date of ratifijication of the country proposing a candidate, ratifijication by other States, results of the draw)86 rather than by any reasonable arguments. As regards the Committee estab86

Resolution (1997)010, op. cit. note 43, Rule 15.

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lished under the Language Charter, all States that have ratifijied the Charter send a Member to it; but there are only 25 Member States at the moment.87 Another aspect is that the Members of the two Committees are independent. They are neither entitled nor expected to represent the political opinions of their governments. In fact, they act as independent experts on minority issues because, although they were proposed by their respective Member State, they were then unanimously elected by the CM on the basis of a list comprising several candidates from that Member State.88 In addition, the experts in these two Committees are not responsible for making sure that the commitments Member States entered into upon ratifying the two Conventions are actually fulfijilled. So what is missing at the moment is a Europe-wide body that allows Member States to discuss fundamental and/or urgent questions regarding minorities. As the European Union does not cover all parts of Europe and the OSCE has no regular meeting of government representatives on this issue,89 it should be self-evident for the CoE to convene non-public conferences on minority matters from time to time and to invite the competent delegates from Member State governments, the Members from the two Committees and outstanding academics, like Rainer Hofmann.

87

As of August 2012.

88

Resolution (1997)010, op. cit. note 43, rules 1-13.

89

The regular debate on national minorities as part of the agenda of the annual Conference on the Human Dimension is not first and foremost a forum of discussion among the Member States, but rather a kind of opportunity for NGOs to articulate their views. The procedures at these sessions hardly leave room for a substantive discussion, allowing only for short declarations.

Chapter Twelve The Advisory Committee and Non-Governmental Organizations Françoise Kempf

I.

Introduction

One of the key goals of the Framework Convention for the Protection of National Minorities (hereinafter “Framework Convention” or FCNM) is to allow for the effective participation of persons belonging to national minorities in all settings of public life, on an equal footing with other members of society, as provided for in Article 15 FCNM. With such an underlying principle, the monitoring system that was developed by 1999 set the ground for a substantial contribution by representatives of minorities. The interaction with non-governmental actors has therefore been a key feature of the work of the Advisory Committee on the Framework Convention (hereinafter “Advisory Committee” or ACFC) from its inception. Although the text of the Framework Convention does not mention the role of non-governmental organizations (NGOs) in the monitoring procedure, the Rules adopted by the Committee of Ministers (CM) in 1997 on the monitoring arrangements under Articles 24 to 26 FCNM1 made it possible for the Advisory Committee to obtain authorization from the CM to seek information from non-governmental sources and to involve the latter in its work. Rule 32 (Paragraph 2) indeed mentions the possibility for the Advisory Committee to hold meetings “for the purpose of seeking information from other sources” (i.e. other than the governments of the State Parties) after being granted a specifijic mandate to do so by the CM. As early as 1999, the ACFC requested authorization from the CM to seek information from other 1

Resolution (97) 10: Rules Adopted by the [CM] on the Monitoring Arrangements under Articles 24 to 26 of the [FCNM], Resolution(1997)010, adopted by the CM on 17 September 1997 at the 601st Meeting of the Ministers’ Deputies.

Tove H. Malloy and Ugo Caruso (eds.), Essays in Honour of Rainer Hofmann Copyright 2013 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-21441-5 pp. 255-267

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international organizations, national human rights institutions and ombudsmen, as well as from civil society and NGOs.2 The authorization was granted in 1999,3 as the fijirst country visit of the Advisory Committee to Finland was being organized. In 2003, the authorization was renewed for the second and subsequent monitoring cycles. 4 At the same time, the Advisory Committee obtained authorization to hold meetings with NGOs and independent bodies outside the context of country visits, should there be a specifijic need for it. This provision has proven instrumental in at least one case (see Part II). In this article, we will examine how the Advisory Committee and a wide range of NGOs have used the options at their disposal since 1999 to develop a system of ongoing cooperation in most of the State Parties to the Framework Convention. We also intend to assess the impact of this cooperation for minority NGOs and, in general, on the implementation of the Framework Convention. II.

Involvement of NGOs in the Preparation of Country Opinions by the Advisory Committee

The Advisory Committee, as an independent monitoring body, prepares and discusses its Opinions without outside intervention, with the sole assistance of its Secretariat. This is an essential condition to safeguard the efffective independence of the Committee. Nonetheless, minority organizations and other civil society actors, such as human rights NGOs, as well as academics and members of parliament, can make use of various possibilities to provide the Advisory Committee with their views, directly or indirectly, at various stages of the process of drafting of Opinions. A.

The Submission of Alternative or “Shadow” Reports

The practice of submitting alternative reports on the implementation of the provisions of the Framework Convention has been used by NGOs since the fijirst cycle 2

Notification by the Advisory Committee regarding its intention to invite information from sources other than the State concerned, adopted by the Committee of Ministers on 19-20 May 1999 at the 671st Meeting of the Ministers’ Deputies.

3

Request by the Advisory Committee for a mandate to hold meetings under Rule 32, Paragraph 2, of Resolution (97)10, adopted by the Committee of Ministers on 3 May 2000 at the 708th meeting of the Ministers’ Deputies.

4

Committee of Ministers, Renewal of authorisations granted to the Advisory Committee for the first cycle of monitoring, 8 April 2003.

The Advisory Committee and Non-Governmental Organizations

of monitoring, based on the model of the “shadow” reports submitted under treaty bodies of the United Nations. Such reports have been submitted during reporting cycles of most of the State Parties, in various languages. In some cases, a large number of reports have been forwarded to the Advisory Committee (up to 8-10 reports in the case of the United Kingdom during the third reporting cycle, for instance). Such reports are submitted by one NGO or a consortium of organizations of the same minority group. It is interesting to note, however, that over the years the practice of submitting shadow reports prepared by various organizations representing diffferent minority groups has developed. This was for instance the case on the occasion of the second cycle of monitoring in the Russian Federation, for which the organization Memorial in Moscow coordinated, in 2006, the preparation of a joint report covering the situation of various minority groups. The same practice was developed in Austria, where the Austrian Centre for Ethnic Groups has produced a common report with contributions from the main minority groups for each of the fijirst two reporting cycles. The Vojvodina Center for Human Rights also submitted in 2007, on the occasion of the second reporting cycle on Serbia, a compilation of the views of the various national minority councils, NGOs and other stakeholders.5 Alternative reports have always been considered carefully by the Advisory Committee as they constitute a primary source of direct information on how persons belonging to minorities assess the implementation of the FCNM. State Reports are often lacking factual information and a concrete assessment of the situation as far as the implementation of the provisions of the Framework Convention is concerned. They usually focus on the existing legal framework and policies and programmes that have been adopted, while omitting information on their actual implementation and impact. Therefore, reports submitted by NGOs are essential for the Advisory Committee to complement the information received in the State Reports and obtain a more factual and balanced overview of the situation in the State Parties ahead of the country visit. Minority Rights Group International (MRG) has been instrumental in supporting the process of participation of NGOs in the monitoring work through shadow reports. Since 2002, it has organized a number of training sessions on reporting under the Framework Convention, in cooperation with the FCNM Secretariat, which have yielded concrete results. Funding has also been made available for the preparation of some reports.

5

All of these reports are available at .

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The shadow reports submitted to the Advisory Committee have been made public and available through Minelres,6 which is a news distribution list on minority issues that was managed until 2010 by Boris Cilevičs, member of the Parliamentary Assembly of the Council of Europe (PACE). As the alternative reports are not formally part of the monitoring system as established by the Committee of Ministers, they could not be posted on the website of the Framework Convention alongside the State Reports and other monitoring documents. Since Minelres stopped operating, no new host has been found for the shadow reports and they remain in the fijiles of the Advisory Committee, to the detriment of those who seek further information on the implementation of the Convention. B.

Meetings with NGOs during Country Visits

The Advisory Committee has, from its fijirst country visits, developed the practice of meeting with representatives of minority organizations and human rights organizations. Such meetings have usually been held before meetings with representatives of the authorities in order for the Committee to be able to address the authorities with the views and assessment of the minority representatives in mind. It is important to underline that the ACFC has met with organizations representing groups recognized as national minorities under the Framework Convention, but it has also met groups excluded from the scope of application by the State Parties concerned when requested by such groups. This was for instance the case in Germany, where the Committee met during its visits with representatives of the Turkish and Polish communities, in Bulgaria, where it met with representatives of the Pomak and Macedonian groups, and in the United Kingdom, where it met with Muslims advocating for the inclusion of Muslims as a faith group in the scope of application of the Framework Convention, as well as with representatives of the Cornish group. The Advisory Committee has also held meetings with Basque, Catalonian and Galician cultural associations in Spain. The practice of meeting with all groups interested in the Framework Convention is in line with the approach developed by the Advisory Committee regarding the scope of application of the Convention. Moreover, it is consistent with the view held by the Advisory Committee that it should act as a catalyst for dialogue on the application of the Framework Convention at the national level. Indeed the Advisory Committee has repeatedly underlined that, although a State Party can choose not

6

Ibid.

The Advisory Committee and Non-Governmental Organizations

to include a given group in the protection of the Convention, it should not refuse a priori dialogue with persons representing such a group. The dialogue with NGOs has deepened at the beginning of the second monitoring cycle, when the Advisory Committee decided to start visiting regions outside capital cities, where persons belonging to minorities live in substantial numbers. As part of this process, it started to develop interaction with local and grass-roots level organizations, sometimes in remote regions, such as Northern Finland, the Urals in Russia or Samtskhe Javakheti in Georgia. Such visits have proven essential for the Advisory Committee because they have offfered an opportunity to understand and grasp better the situation of minorities on the spot as well as to become more sensitive to the diversity prevailing within minority groups. They have also provided a unique opportunity for persons belonging to minorities, who sometimes live in isolated regions far away from mainstream society, to have a direct interaction with an international monitoring body in charge of evaluating their situation and the policies carried out at national level to address their needs and problems. Such visits have no doubt increased the relevance of the monitoring system under the Framework Convention. Another interesting feature of the visits to such regions is the fact that they have contributed to a better knowledge and awareness of the Framework Convention locally among the groups concerned (including the local authorities). C.

Meetings with NGOs outside of Country Visits

The Advisory Committee has held meetings with minority and human rights NGOs outside the context of a country visit on one occasion, in the framework of the procedure established by the CM in 2003. Spain and Portugal declined the possibility to invite the Advisory Committee for a country visit on the occasion of the fijirst cycle of monitoring. The fijirst Opinions in respect of these two countries were therefore prepared based on information provided by the authorities, in the State Reports and subsequent exchanges, as well as written information provided by other sources (reports by other treaty bodies, NGOs, etc). Whereas Spain then accepted the principle of country visits as of the second monitoring cycle, Portugal has continued to oppose the idea of a country visit. Against this background, the Advisory Committee decided in August 2009 to use the option at its disposal to invite representatives of NGOs from Portugal to a meeting in Strasbourg. It also held, on the same day (but separately), a hearing with representatives of the Portuguese authorities in order to obtain a balanced overview of the implementation of the Convention in the country. Although a meeting with a lim-

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ited number of governmental and non-governmental representatives can in no way replace a full country visit, these meetings have enabled the Advisory Committee to obtain fijirst-hand information and the views of some of the persons concerned on the situation of minorities in the light of the Framework Convention. III.

On-going Dialogue between the Advisory Committee and NGOs

Monitoring under the Framework Convention is conceived by the Advisory Committee as a catalyst for dialogue in various respects, as described elsewhere in this book. This is particularly important in the relations with those who are possibly the most interested in its efffective implementation, e.g. persons belonging to minorities and their organizations. However, exchanges in the context of the monitoring cycles every fijive years (and sometimes more when State Parties are not timely in abiding to their commitments regarding the submission of state reports) are clearly not sufffijicient to build efffective dialogue. Therefore the Advisory Committee has established means of communication and exchanges outside the contexts of formal reporting periods, in order to keep abreast of recent development, as well as to build lasting trustful relationships with a number of organizations and persons. A.

Regular Exchange of Information

On the basis of contacts established during the fijirst cycle of monitoring, the Advisory Committee has developed over the years regular exchanges of information with a wide range of NGOs. These exchanges take place through the Secretariat of the Framework Convention, in which each stafff member is assigned the task of maintaining relations and monitoring developments in a number of State Parties. This has enabled the consolidation of an efffective system of regular collection of information on the implementation of the Framework Convention. The Secretariat also regularly meets with representatives of various NGOs on the occasion of their visits to the Council of Europe (CoE) premises and reports back to the Advisory Committee. Information on country developments is also provided by NGOs on an ad hoc basis when new situations arise that need to be brought to the attention of the Advisory Committee, even though the latter has limited possibilities to act upon unexpected developments outside the context of regular monitoring cycles. The relationships with the European Roma and Travellers Forum (ERTF)7 are to be highlighted in particular. This pan-European assembly gathering Roma 7

See .

The Advisory Committee and Non-Governmental Organizations

representatives from most CoE Member States was established in 2004, following a proposal made the then President of Finland, Tarja Halonen, in 2001. It is a private organization, registered under French law, funded by the Council of Europe and hosted in its premises based on an agreement between ERTF and the Council. The main objective of this organization, and of its promoters, is to give a voice to Roma representatives and promote the representation of Roma constituencies at the European level. One of the means to achieve this goal, according to the promoters and founders of the ERTF, is the development of an efffective working relationship between the ERTF and the various bodies comprising the Council of Europe, including monitoring bodies such as the Advisory Committee. In this context, the ACFC has held hearings with representatives of the Forum to discuss the situation of the Roma in the light of the provision of the Framework Convention. Besides this, regular exchanges of information have taken place between the Secretariat of the Framework Convention and of the ERTF, especially ahead of country visits. Members of the ERTF have in many cases been invited to take part in meetings held during country visits. Nonetheless, working relations have unfortunately not developed beyond the level of exchange of information. This missed opportunity can be explained by various factors, including possibly the hybrid status of the ERTF as a private organization with offfijicial recognition, but no possibility to act on an equal footing with other CoE institutional bodies. The initial difffijiculties faced by the Forum in establishing itself as a functioning organization might also have played a role in this situation. It is to be hoped that a more dynamic interaction will develop in the near future. B.

Follow-up Seminars

In order to fijill in the fijive years gap between two reporting cycles, the Advisory Committee took the initiative, in 2002, to organize short conferences in the interim period in order to assess the implementation of its recommendations with all the relevant stakeholders, including national and local authorities, minority and other NGOs, members of parliaments and academics.8 As this step is not foreseen in the monitoring system established by the Committee of Ministers, the Advisory Committee has to seek approval from the authorities of the State Parties concerned. The seminars are jointly convened by the Advisory Committee and the authorities. In countries that have agreed to organize such seminars—not all of them have done so—the list of participants from civil society has sometimes been a point of controversy between the authorities and the Advisory Committee. This is particularly 8

The first follow-up conference was organised in Finland in February 2002.

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the case when the Advisory Committee had expressed the wish to invite organizations representing groups not formally included by the authorities in the scope of application of the Convention, but having expressed an interest in the Framework Convention. The objective in inviting such persons or groups was again to foster dialogue with the authorities on the Framework Convention. Follow-up seminars have proved to be useful platforms to discuss a number of issues, including the most controversial ones such as the scope of application of the Framework Convention. They are also a unique opportunity for the Advisory Committee to obtain updated information on country situations. Lastly, they can help the authorities and NGOs prepare for the next reporting cycles. C.

Thematic Commentaries of the Advisory Committee

The Advisory Committee has published three Thematic Commentaries on “education under the [FCNM]” (2006), “the efffective participation of persons belonging to national minorities in cultural, social and economic life and public afffairs” (2008) and “the language rights of persons belonging to national minorities under the Framework Convention” (2012).9 Whereas the fijirst Commentary on education was prepared with no input from outsiders to the Advisory Committee, the second Commentary on participation could not be drafted without the “efffective participation” of minority representatives, risking inconsistency of the Advisory Committee with its own recommendations under Article 15 FCNM. The participation of minority organizations and representatives were therefore carefully planned. A wide range of persons and organizations met during country visits was involved. The Advisory Committee chose to focus more on representatives of minorities stricto sensus and less on the expertise of human rights NGOs and other relevant international organizations and academics (although they have also been involved, though to a lesser extent). First, an electronic consultation was organized through which minority representatives could comment on the main themes developed in the fijirst draft of the Commentary. The underlying idea of the Advisory Committee was to involve minority representatives in a timely—and thus efffective—manner, in order to avoid a “last minute” consultation on a text that would already have been almost fijinalized. A new draft was prepared based on these consultations. It was then discussed at length with minority representatives in a seminar organized in Bolzano/Bozen, jointly with the European 9

The three Commentaries are available in various languages at .

The Advisory Committee and Non-Governmental Organizations

Academy of Bolzano/Bozen, in the region of South Tyrol in October 2007. It is only after these successive rounds of consultations that the Advisory Committee fijinalized its Commentary. Through this exercise, the goal of the Committee was not to adopt a negotiated text incorporating the views of all the stakeholders involved. The Commentaries in principle reflect the views and interpretations of the Framework Convention made by the Advisory Committee, based on its own monitoring through country work. Nonetheless, the discussions and exchanges with minority NGOs have contributed to enhancing the quality of this Commentary and ensuring that most of the issues of concern to minority representatives had been covered. More importantly, the process of consultation produced fruitful outcomes in terms of the consolidation of the relations between the Advisory Committee and minority organizations. It made it possible for the Committee Members to deepen the exchange of views with persons sometimes met only once for an hour or two during a country visit, and hopefully to build more trust for these persons in the work of the Committee. The seminar also enabled exchanges of views between persons from diffferent minority groups and from diffferent countries, which would otherwise possibly not have meet. This represented one of the most enriching outcomes of the consultation seminar. Lastly, the seminar offfered an opportunity to discuss issues and challenges beyond the scope of the Commentary, notably on possible future challenges. These discussions have helped the Advisory Committee prepare for subsequent country monitoring work. In the preparation of the third Commentary on the language rights of minorities, the experience of a consultation seminar with minorities was repeated in February 2012. It was again a key moment in the process of elaboration of the Commentary, even if the consultation process was shorter than it was for the Commentary on participation. Minority representatives with specifijic concerns and competences in the fijield of language rights were convened at a meeting in February 2012, together with members of the Advisory Committee, the European Charter on Regional or Minority Languages (EChRML), the OSCE High Commissioner on National Minorities (HCNM) and the European Academy of Bolzano/Bozen. IV.

Impact of Cooperation with Civil Society

A.

Strengthening the Position of NGOs in Dialogue with the Authorities

While it is obvious that most minority NGOs have been engaged in discussions and cooperation with the authorities prior to their involvement in the work of the Advisory Committee, participation in country visits and follow-up seminars has, in

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a number of cases, reinforced the position of NGOs vis-à-vis the authorities. This is particularly the case for organizations representing groups not included by the authorities in the scope of application of the Framework Convention, who were given an opportunity to advance their claims and engage in discussion with the authorities in the context of activities of the Advisory Committee. This was for example the case for organizations representing the former Yugoslavs living in Slovenia who took part in the fijirst follow-up seminar organized in Slovenia in 2007. Additionally, many NGOs have gainfully used monitoring cycles to advance and increase the visibility of their claims and views, through the publication of shadow reports, as well as through meetings with the authorities to prepare Advisory Committee visits, i.e. the organization of conferences and other awareness-raising public events. This was notably the case in Georgia ahead of the fijirst cycle of monitoring, but also in Germany (see remarks below on the Minority Secretariat and implementation conferences) and in Austria. In some cases however, it has been argued 10 that the amount of documents submitted by the State Parties under the monitoring system, and the complex consultation processes that have been set up, have resulted in an increasingly heavy engagement for minority organizations, which have had to use a growing share of their time and resources to engage in consultations in the phases of preparation of reporting and evaluation under the Framework Convention. Spiliopoulou Åkermark in particular contends that such demands on minority organizations could lead to their “professionalization and bureaucratization” and divert them from their core grassroots work.11 While these considerations reflect existing challenges in some of the State Parties, they appear not to be of major concern in general and in no case do they outweigh the benefijits of minorities increased engagement in consultation processes at local and national levels. B.

Building Alliances

The need to contribute as efffectively as possible to the work of the Advisory Committee has led in some countries to the setting up of minority platforms or alliances among minority groups that might not have had so many opportunities to co10

See Spiliopoulou Åkermark, The impact of the [FCNM] in selected Western European countries after two cycles of monitoring, prepared on the occasion of the Conference on the Impact Assessment of the [FCNM], Strasbourg, 9-10 October 2008. She highlights in particular the case of Germany, which has submitted extensive State Reports (a few hundred pages) and Comments on the Advisory Committee Opinions.

11

Ibid.

The Advisory Committee and Non-Governmental Organizations

operate previously. The best example of cooperation lies in the Minority Secretariat, established in Germany in 2005 with support from the federal authorities to facilitate contacts between minority organizations and federal bodies. It is jointly managed by the organizations forming the Minority Council, an umbrella organization of the four offfijicially recognized groups. It actively takes part in regular “implementation conferences”, during which minority representatives and representatives of the federal and Länder authorities meet to discuss their concerns. Monitoring under the Framework Convention and the EChRML has no doubt acted as a catalyst in the establishment of this important mechanism, facilitating cooperation with the authorities, but also among minority organizations themselves. Cooperation among minority groups for the purpose of the Framework Convention has developed in other State Parties, such as Austria, the Russian Federation and Serbia, on the occasion of the preparation of joint parallel reports (see remarks above). It is worth mentioning that in the latter cases, Roma organizations have been involved in joint work with other groups, which is not always the case as Roma groups have sometimes been marginalized even within civil society movements. In 2008, a number of NGOs decided to capitalize on existing cooperation schemes and to build a pan-European cooperation network on minority issues, in the context of monitoring of the Framework Convention. The declaration of NGOs12 was launched in October 2008 in Strasbourg, on the occasion of a conference celebrating the 10th anniversary of the Framework Convention. It was signed by 86 organizations from almost all the State Parties to the Framework Convention. It contains a critical evaluation of the impact of monitoring under the FCNM according to minority organizations and recommendations addressed to governments, the Council of Europe, the EU and civil society organizations. The Declaration explicitly aimed at creating a European minority rights network. To the knowledge of the author, this project has, however, not yielded many concrete results, probably due to a lack of capacity of the founding organizations and lack of funding opportunities on the side of the Council of Europe. It is hoped that further attempts will be made to build a sustainable cooperation network at the European level, although the current context of economic crisis and austerity measures is a growing obstacle to fundraising for such an undertaking. 12

See NGO Declaration on the Framework Convention for the Protection of National Minorities on the occasion of the Conference Enhancing the Impact of the Framework Convention: Past Experience, Present Achievements and Future Challenges, Strasbourg, 9-10 October 2008, at .

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C.

Impact on Transparency of the Monitoring Process

NGOs can participate in the monitoring process provided they have access to the monitoring documents, particularly the Advisory Committee Opinions. While State Reports are public upon their submission by the States Parties, the Rules applying to the publication of country Opinions difffer. A few—though growing—number of States Parties have opted for a fully transparent approach and have published Opinions upon receipt, or shortly afterwards. However, a majority of others have opted for publication together with the CM Resolution, which results in a wait period of months—sometimes more than a year—before the Opinion could be shared with NGOs, thus transforming the whole monitoring process into a confijidential debate between Member States. The Rules applying to the publication of Opinions were therefore amended in 2009 to enable the publication of the Opinions as a rule four months after they had been submitted to the State Party concerned.13 The objective of this reform to the publication Rules was to avoid that NGOs and other actors (including local authorities) be presented with out-dated and irrelevant fijindings and recommendations by the Advisory Committee due to the late publication. In adopting the new publication Rules, the Committee of Ministers has explicitly endorsed the crucial role played by dialogue and interaction with civil society organizations. Most State Parties have so far abided by the new rule and have not opposed the publication of the Opinion four months at the latest after it was submitted to them. V.

Conclusions

When the Framework Convention entered into force, many thought that it was a weak instrument that would not have the capacity to achieve substantial results to improve the protection of the rights of national minorities. As analyzed in other articles of this book, these pessimistic views have fortunately proven to be largely unfounded. Despite its weaknesses and flaws, the system of monitoring under the Framework Convention has established itself as a key instrument to protect and advocate for minority rights. This is due to the work of the Advisory Committee, which has managed to develop the tools at its disposal to carry out efffective monitoring. The role played by NGOs has been equally crucial in that they have enabled the Advisory Committee to produce well-documented and up-to-date Opinions, tak13

See Resolution CM/Res (2009)3 amending Resolution (1997)10 on the monitoring arrangements under Articles 24-26 of the [FCNM], adopted by the CM on 16 April 2009 at the 1054th meeting of the Ministers’ Deputies.

The Advisory Committee and Non-Governmental Organizations

ing on board the position expressed by the authorities of the State Parties, as well as the views of representatives of national minorities on the implementation of the Framework Convention. Moreover, beyond their input in terms of providing information, NGOs are the ones that have been using the Advisory Committee Opinions (and Committee of Ministers’ Resolutions) in their advocacy work with the authorities and have thereby turned them into lively and relevant tools. In addition to making use of the monitoring documents, they have also used monitoring cycles to raise the authorities’ and society awareness on specifijic issues that had been neglected or under-estimated and to push the authorities to engage into more meaningful and efffective cooperation with them. This combination of international pressure and domestic advocacy has no doubt had a signifijicant impact on the advancement of minority rights in Europe.

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List of Contributors

Alan Phillips was nominated by the United Kingdom and elected fijirst Vice President, for the fijirst two periods of the Advisory Committee from 1998 to 2002, when Rainer Hofmann was elected as the President. He later went on to be elected as the Committee’s President for two periods from 2006 to 2010. Asbjørn Eide, Professor emeritus, former member and President of the Advisory Committee on the Framework Convention for the Protection of National Minorities, former Chairman of the United Nations Working Group on Minorities, former director of the Norwegian Centre for Human Rights at the Faculty of Law, University of Oslo and presently senior researcher at that Centre. Gáspár Bíró, Professor of International Relations, Institute of Political Sciences, Faculty of Law, Eötvös Loránd University Budapest. Former member of the Advisory Committee on the Council of Europe Framework Convention for the Protection of National Minorities and Second Vice President of the Committee (1998-2004 and reelected for the period 2008-2012). Former member of the UN Sub-Commission on the Promotion and Protection of Human Rights (2004-2006) and Special Rapporteur of the United Nations Commission on Human Rights on the situation of human rights in the Sudan (1993-1998). Antti Korkeakivi, Chief, Indigenous Peoples and Minorities Section, Offfijice of the UN High Commissioner for Human Rights, former Executive Secretary of the Framework Convention for the Protection of National Minorities

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List of Contributors

Joseph Marko, Professor of Public Law and Political Sciences at the University of Graz/Austria and Director of the Institute for Minority Rights at the European Academy Bozen-Bolzano/Italy. Francesco Palermo, PhD, is Professor of comparative constitutional law in the Faculty of Law, University of Verona and Director of the Institute for Studies on Federalism and Regionalism at the European Academy (EURAC) Bolzano/Bozen. He is a member of the Advisory Committee on the Framework Convention for the Protection of National Minorities (ACFC) and a former Senior Legal Adviser to the OSCE High Commissioner on National Minorities (HCNM). Tove Malloy, Director, European Centre for Minority Issues, and External Associate Professor at the University of Southern Denmark. She was a member of the Danish Foreign Service for many years and is currently Additional Member of the Advisory Committee on the Framework Convention in respect of Denmark. Alain Chablais obtained a PhD from the University of Fribourg (Switzerland) in 1996 and worked with the Swiss Ministry of Justice in the preparation of a new Federal Constitution until 1998. He then moved to the Council of Europe in Strasbourg (France) and was given the opportunity to take part in the development of the monitoring mechanism of the Framework Convention for the Protection of National Minorities. Before his departure from the Council of Europe in 2009, he also worked during three years for the Venice Commission, including on national minority issues. From 2009 to 2012 he was serving as a judge with the Federal Administrative Court of Switzerland. In 2012 he was appointed professor for public law at the University of Neuchâtel (Switzerland). Ugo Caruso, Research Associate at the European Centre for Minority Issues and Guest Lecturer at the University of Southern Denmark, Faculty of Law. He is also a member of the International Law Association, Italian Branch. Stefan Oeter, Professor of German and Comparative Public Law and Public International Law at the Law Faculty of the University of Hamburg and Chairman of the Independent Committee of Experts of the European Charter for Regional or Minority Languages.

List of Contributors

Detlev Rein, (until his retirement) Head of Division, National Minorites and Regional Languages in Germany, European Policy on Minorites, at the German federal Ministry of the Interior. Françoise Kempf has worked for the Secretariat of the Framework Convention for the Protection of National Minorities between 2005 and 2012.

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