The Influence of International Legal Development on the Protection of National Minorities

Over the last six years, the Council of Europe has been extended to include a number of countries whose human rights records are, to put it diplomatically, perhaps not all one might wish. Of the 11 countries joining since 1993, we may think in particular of Romania, a member of the Council since 1993, Ukraine (1995), FYROM (Macedonia, 1995), Albania (1996), Croatia (1996), Moldova (1996) and the Russian Federation (1996). These countries have in common large problems in such areas as freedom of expression, the independence of the judiciary, prison conditions etc. They also all have problems in relation to national minorities within their borders. The term national minorities should be understood to mean recognizable groups of people who, as a result of border changes, forced deportations or other reasons have found themselves citizens of the state other than the one to which they would otherwise belong on grounds of their ethnic origin.
The term national minorities therefore definitely does not mean immigrants. Examples of national minorities can be seen in the Bulgarians in Romania, or the Albanians in Macedonia. In general, it can be stated that Europe currently has around 100 'national minorities', a large number of which are to be found to the east of the former Iron Curtain. Many of these minorities face economic disadvantage, including less chance on the employment market, discrimination, the lack of a free press, unsatisfactory education and little opportunity for political participation.
The core question for the intended research is how, given the interplay of national and international endeavors, both legal and other, it can be guaranteed that these minorities can become full members of the Europe that the Council of Europe is trying to bring about under its own Statute. This general question can then be broken down into a number of aspects, in the interests of researching the whole in an analytically correct manner. It is assumed that the research will concentrate on the eight countries named above, although it will begin with a pilot project.
The questions that need to be asked are:
- What conditions has the Council of Europe set for new members in relation to the protection of national minorities and their members? How specifically are these formulated, and what was the course of the debate in the Council (Parliamentary Assembly, Committee of Ministers) on the conditions to be set?
- What steps have the relevant countries taken, legally and politically, to comply with these conditions? Examples are amending legislation (constitutionally or otherwise), incentive measures, political negotiations with representatives of the minority, the creation of institutions such as an ombudsman scheme, or an anti-discrimination commission, and giving space to any existing NGOs concerned with national human rights and minorities.
- The Council of Europe has developed a series of activities and legal instruments in the field of the protection of national minorities and their members. To begin with there is the European Convention on the protection of Human Rights of 1950, which is often of assistance with 'minority questions' (for example, Article 5 on liberty and security of the person, Article 11 on the freedom of assembly and association, or Article 2 of the First Protocol to the Convention, on the right to education). There is also the European Charter for Regional and Minority Languages of 1992, and the Framework Convention for the Protection of National Minorities of 1994. With each of these three treaties, the first question to ask is obviously whether it has been ratified by the countries concerned, and if so, with what reservations, and with the last two treaties, also to which languages or national minorities the treaties have been declared applicable. As regards ratification, there is still much to be desired in many cases, although this is a situation, which will change during the current research. Based on the ratification of the states involved, it may be asked to what extent being a signatory to these treaties has been a positive influence on shaping the legal protection available in national law for national minorities and their members, and what extent the treaties offer supplementary legal protection. It should be noted here that the first Convention mentioned can be relied on correctly by a person affected, while the last two take the form of framework treaties that cannot be invoked directly.
- To supplement the legal instruments available, research is needed into what the Council of Europe can offer the countries concerned, to allow them to bring their practice into compliance with their treaty obligations. Of particular interest here are assistance programs on the creation of an independent judiciary, a fair electoral system, or more generally the protection of national minorities and their members. The Council of Europe has a series of programs and funds, the question being to what extent the countries concerned have made use of these and with what results.
In addition to these four more or less specific questions, the research program will also need to devote attention to two more fundamental questions, also closely connected with the foundations of the European legal system.
- The first question concerns the degree to which a number of collective rights should be recognized in relation to the protection of national minorities. Such rights include the right to autonomy, the right to preserve a cultural identity, and probably also the right to use natural resources. This is an issue on which the Council of Europe has been very divided until now. It is true that this is an extraordinarily complex issue: who exactly would be the subjects of such rights, what would be the consequences of granting collective claims for the position of an individual member of the relevant national minority, is it sufficient to retain the model of the protection of individuals and an accompanying multiculturalism, how does this relate to the fundamental ideals of liberal democracy, and, on another level, to what extent would claims to exercise the right to autonomy exacerbate nationalist tendencies? These are clearly complex questions, and therefore should be granted a prominent role in the study planned.
- Similar considerations apply to the question of how best to approach minority issues. The legal instruments available are one possibility. We may also think of political, economic and military means. The place of legal instruments in this range of means deserves close attention, with a particular emphasis on the strength and weakness of the specifically legal approach. A link should also be made here, if only in passing, with the other European organization which has focused with so much energy and success on the question of minority rights: the Organization for Security and Cooperation in Europe (OSCE) with its High Commissioner for National Minorities (since 1992). The research should weigh up the specific strength of the Council of Europe's work, with its primary focus on legal means, in comparison with the OSCE's way of working which is more focused on the political and diplomatic approach.