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1. Introduction
2. International Standards on Minority Rights:
3.1 Legal and Political Standards
3.2 Types of Minorities
3. Recent Progress on Standards:
4.1 Organisation for Security and Cooperation in Europe
4.2 United Nations
4.3 Council of Europe
4. Implementation of Agreements:
5.1 Organisation for Security and Cooperation in Europe
5.2 United Nations
5.3 Commission on Human Rights
5.4 Council of Europe
5.5 Donors and Banks
5. Outstanding Needs
6. Conclusions
7. End Notes
8. Appendices
A UN Declaration on the Rights of Persons belonging to National
or Ethnic, Religious and Linguistic Minorities.
B Copenhagen meeting of the Conference on the Human Dimension
of the OSCE, November 1990 (part of Conference on Security and Cooperation in Europe)
C Sponsors of resolutions on Minorities at the UN Commission on
Human Rights (1991-1995).
1. Introduction
All countries in Europe are characterised by varying degrees of ethnic, linguistic and religious diversity. However this diversity has only been recognised as a major European issue since the collapse of communism in Central and Eastern Europe, and the eruption of violent conflicts involving minorities in Europe. The situation in former Yugoslavia - including Croatia, Bosnia and Serbia (with its Vojvodena and Kosovo regions) - has featured in news headlines daily. Violence continues in the Caucasus and in Moldova, while the potential for other violent conflicts is substantial. Many have been killed, and over 2 million people are refugees or displaced people from former Yugoslavia alone. The danger of conflicts within the emerging democracies of the former USSR and Communist states was apparent, even in 1990, when the CSCE moved quickly to establish new standards for States regarding their treatment of minorities.
The history of Northern Ireland and the Basque Country have shown that inter-communal tensions could develop into violent conflicts in Western Europe, while the growth of racism, xenophobia and intolerance has been recognised as a serious issue in Western Europe. Nevertheless, during the 1990's, some governments of Western Europe have been the most adamant in opposing new measures to secure minority rights in Western Europe, denying the existence of minorities within their state, while devising language and mechanisms that will apply to minorities in Central and Eastern Europe1. Double standards seem to exist in the policies of some States which have held back both the setting of standards and the implementation of minority rights. It will be seen that often the concern is not primarily for minorities and minority rights, but for stability and economic development at the periphery of Western Europe2. Although most OSCE States have been constructive, the response has been mixed with a significant number of States who have not signed the Council of Europe Framework Convention, a number who did not sponsor the UN Declaration on ... Minorities at the UN General Assembly, and others who have not lent their name to supportive resolutions at the UN Commission on Human Rights. The supporters are detailed in appendix C.
Support for minority rights since 1990 by the West in Eastern Europe is not governed by security issues alone, but reflects endeavours to create good government for economic development. The World Bank3 in 1991 stated:
'Investing in people, if done right, provides the firmest foundation for lasting development. And the proper economic role of government is larger than merely standing in for markets if they fail to work well. In defining and protecting property rights, providing effective legal, judicial and regulatory systems, improving the efficiency of the civil service, and probably the environment, the state forms the very core of development'.
The Copenhagen CSCE meeting4 (June 1990) included a similar agreement:
This paper is intended to provide an introduction to the current state of play regarding international instruments within Europe, providing references for those who wish to follow up the issue in more depth.
2. International Standards on Minority Rights
2.1 Legal or Political
The relevance of international standards on the real situation of minorities in European countries may seem obscure, especially when they may not be enforceable through domestic legislation. The CSCE and its participating states, however, have made a set of political agreements on security, economic co-operation and the human dimension since the Helsinki Final Act in 1975. This was a crucial negotiating forum between the North Atlantic Treaty Organisation and the Warsaw Pact with a number of neutral intermediaries. Suggestions that a state might be in breach of a CSCE agreement was considered to be a very serious issue and all states either conformed or endeavoured to be seen as conforming. It is for this reason that some distinguished commentators5 argued that the political regimes of the CSCE were much more effective than the legal or moral agreements of the UN or the Council of Europe.
International lawyers will appreciate the strengths and weaknesses of international human rights law adopted through the United Nations. The adoption and ratification of international covenants, sometimes incorporated into domestic legislation directly, is a binding commitment on States which may be scrutinised through international treaty monitoring bodies. Individuals may also seek personal redress, if optional protocols have been signed. However, some States often ignore their commitment under international law, while others do not become parties to Human Rights Covenants.
By 1990, there were no specific UN instruments, adopted by the General Assembly, whether they be Covenants or Declarations, that were devoted to minorities. There was the Convention on the Elimination of Racial Discrimination (CERD) and Article 27 of the major Covenant on Civil and Political Rights (1966), but both concentrate on non-discrimination of individuals.
2.2 Types of Minorities
In various standard-setting and implementation mechanisms in Europe, there has been an attempt to identify two different kinds of minorities: national minorities and other minorities (ethnic, linguistic and religious minorities) who are not national minorities. However, the concept of 'national' has different meanings in different countries and languages. In the English language the phase 'nation state' is often used without any intended difference from the word 'state', while nationality refers to citizenship and not historical, ethnic origins or 'mother country'.
The definition of what is a minority is a source of controversy and can be a topic of endless and often fruitless debate, with governments wanting a restrictive definition and minority communities wanting a broad one.6 The OSCE, in its various concluding documents [e.g. Copenhagen 1990], refers to 'persons belonging to national minorities', without attempting a closer definition of either national or minority. Separate, specific references to the Roma imply that they, inter alia, may not be included in this category.7
The Council of Europe has referred to the 'national minorities, which the upheavals of history have established in Europe',8 and quite separately refers to a 'Declaration and Plan of Action on combating racism, xenophobia, anti-Semitism and intolerance'. The distinction is being reinforced between national minorities, who are perceived as posing a security threat, and other minorities.
The United Nations Commission on Human Rights refused to define minority in the 'UN Declaration on ... Minorities' though it provides some definition by referring to national or ethnic, linguistic and religious minorities. Much earlier, a definition by Capotorti for the Sub Commission was rejected by the Commission on Human Rights.9
3. Recent Progress on Standards
In the 1980's, minority rights were considered a fringe issue within human rights, which itself was a marginal political issue. The UN kept discussions on human rights in Geneva, quite separate from the concerns of the Secretary General's office and the Security Council. The draft 'UN Declaration on the Rights of Persons belonging to National or Ethnic, Linguistic and Religious Minorities' (UN Declaration on...Minorities) had made little progress over the previous ten years. Similarly, no substantial standards on minorities had been agreed by the OSCE or the Council of Europe.
The rapidity of the political changes in Eastern Europe in 1989 caught many governments by surprise. A 'new world order' was a major subject for discussion, where democratic values might be cherished and human rights observed. There was a fear that the nascent democracies needed to rectify the injustices towards the minorities that had been a major flash point for changes in Romania and Bulgaria, while Hungary and even Yugoslavia were pressing for new international agreements on minorities. Many western governments recognised that minority rights were an important issue, but were largely unprepared for the political momentum or the major conflict in former Yugoslavia which alerted governments to the importance of minority rights.
3.1 OSCE
The Conference on Security and Co-operation in Europe (CSCE), known as OSCE since 1995, led the way in tackling these issues. It included 35 states and provided a dynamic, non-bureaucratic framework that was responsive to the collective political needs of its participating states. Its members included two key actors, the USA and the Soviet Union, (unlike the Council of Europe), and was able to be effective.
The Copenhagen Human Dimension meeting (June 1990) marked a watershed. Those who were at the Copenhagen meeting will know that the issue of minority rights was nearly excluded from the agenda at the outset.10 It was argued by some Western governments that consensus was unlikely and that consequently it would be futile to establish a working group on minority issues. The Pentagonale group of Central European States led by Hungary insisted on establishing a working group, and by the end of the conference a remarkable set of agreements on national minorities was approved by consensus. It offered national minorities the rights to express, preserve and develop their identity, the freedom to use their mother tongue, establish their own educational, cultural and religious institutions, profess and practice their religion, disseminate information in their mother tongue and to establish and maintain organisations or associations.
States had additional obligations to protect the identity of national minorities, to create conditions and offer opportunities for the promotion of that identity, to have adequate opportunities for instruction in, or of, their mother tongue and its use before public authorities, in education establishments, (to take account of the history and culture of national minorities) and to respect their right to effective participation in public affairs. Some Western governments have since regretted this move and have attempted to place limitations.
Paragraph (30) was particularly telling and related back to World Bank thinking:
'The participating states recognise that the questions relating to national minorities can only be satisfactorily resolved in a democratic political framework based on the rule of law, with a functioning independent judiciary. This framework guarantees full respect for human rights and fundamental freedoms, equal rights and status for all citizens, the free expression of all their legitimate interests and aspirations, political pluralism, social tolerance and the implementation of legal rules that place effective restraints on the abuse of governmental power'.
The OSCE here, as before and since, used the phrase 'National Minorities' in standard setting, where it has made a distinction between standards for the treatment of national minorities and measures to combat racism, xenophobia, anti-Semitism and intolerance.
The measures agreed for other minorities were different:
'The participating states clearly and unequivocally condemn totalitarianism, racial and ethnic hatred, anti-Semitism, xenophobia and discrimination against anyone, as well as persecution on religious and ideological grounds. In this context they also recognise the particular problems of Roma (Gypsies)'.
They also suggested legal measures, protection arrangements, the promotion of understanding and tolerance through education, culture and information and the right of individuals and groups to initiate and support complaints. These measures, valuable in themselves, do not have the empowerment characteristics afforded to national minorities and have few resource implications for established democracies.
At the Geneva Expert meeting (July 1991) it noted 'the efforts taken to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities by establishing, as one of the possible means to achieve these aims, appropriate local or autonomous administrations'.
These measures were not significantly strengthened at the CSCE expert meeting11 (Geneva 1991). However, Chapter II included crucial language limiting state sovereignty:
'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'.
3.2 The United Nations
The United Nations, through a Working Group of the Commission on Human Rights, had been discussing the wording of a declaration on minorities since 1978. Slow progress was being made and although Yugoslavia was taking a leading role there was no sense of urgency and there was little pressure from NGOs. The UN Charter12 had no reference whatsoever to minorities and the issue had been neglected within the UN.
In 1990 much changed, there was considerable interest in the Declaration shown by the OSCE states, especially Russia, Hungary and Austria and there now was some effective NGO lobbying and representations. By February 1991 the first draft was completed and by December 1991, the second and final draft had been approved by the Working Group13, it was endorsed by the Commission on Human Rights in Geneva, February 1992 and promulgated by the General Assembly on 18 December 1992.
This momentum, initiated in Europe, has taken much longer to influence attitudes in New York. The Secretary General's 'Agenda for Peace' contains only one significant mention of minorities where it states:14
'Democracy within nations requires respect for human rights and fundamental freedoms, as set forth in the Charter. It requires, as well, a deeper understanding and respect for the rights of minorities and respect for the needs of the more vulnerable groups of society, especially women and children'.
The UN Declaration on the rights of persons belonging to national or ethnic, linguistic and religious minorities clearly covered more than national minorities. The agreements reached included most of the provisions of the Copenhagen CSCE final statement15. It did have some useful additional provisions in articles 4 and 5.
4.5 States should consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development in their country.
5.1 National policies and programmes shall be planned and implemented with due regard for the legitimate interests of persons belonging to minorities.
5.2 Programmes of co-operation and assistance among states should be planned and implemented with due regard to the legitimate interests of persons belonging to minorities.
Article 8(4) reminds the reader of the principles of the United Nations including sovereign equality, territorial integrity and political independence of states, while Article 9 obliges UN bodies and organs to contribute to the full realisation of the rights and principles in the UN Declaration.
The specific standards that have been agreed by governments in one forum often lead to the acceptance of similar standards in different fora, where the impact may be different. The acceptance by the CSCE (Copenhagen 1990) that
'The participating states will protect the ethnic, cultural, linguistic and religious identity of national minorities on their territory and create conditions for the promotion of that identity'
was the only reference to national minorities without the caveat of 'persons belonging to'. This precedent was used successfully to persuade the UN to accept a Declaration on ... Minorities whose first article reads:
'States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories, and shall encourage conditions for the promotion of that identity'.
going beyond the limitations of 'national minorities'.
The UN Covenant on Civil and Political Rights (1966) is a cornerstone of international human rights law. Article 27 stipulates:
'In those states in which ethnic, religious and linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language'.
The Covenant has been signed by 126 States (June 1994) and therefore takes on considerable significance. The Committee on Human Rights is the treaty monitoring body and, in 1994, published General Comment No. 23, on the definition of minorities as far as this Covenant is concerned, though it has a wider impact throughout the United Nations. The Committee commented on the applicability of Article 27:-
'Just as they need not be nationals or citizens, they need not be permanent residents. Thus, migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights'.
It later continued
'The existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria'16.
This interpretation is helpful for the implementation of this Treaty. However, it may encourage states to be much more cautious generally in their provisions for minorities if it is thought that they must include all those described under the Committee's General Council.
3.3 The Council of Europe
The Council of Europe had developed a concern for minority issues over many years. It had projects for the Roma and it had been developing a convention on linguistic rights for many years. However, one of its most influential bodies, the European Court of Human Rights could only receive individual complaints on abuses of Human Rights and not class actions for minority communities. It had grappled with the issue but submerged in other terminology, including the Charter on Regional or Minority Languages.17
Although the former Secretary General, Madame LaLumière a former French politician from Bordeaux, was an inspired crusader for minority rights, the limited membership of the Council of Europe in 1990 made it difficult for there to be an early actor in establishing relevant standards. It had to wait for political progress at the CSCE before it could consider any legal framework, though considerable preparatory work was undertaken by the Venice Commission.18 By 1993, there was considerable pressure for the two bodies to work more closely together, drawing on the considerable legal expertise of the Council of Europe Secretariat in Strasbourg and the political agreements formed through the CSCE mechanisms.
This point was emphasised at the Warsaw CSCE seminar on National Minorities in May 1993, where the Netherlands recommended that the impressive results achieved within the CSCE be co-ordinated with the work of the Council of Europe and the United Nations. One of the two rapporteurs of this seminar was nominated by the Council of Europe and is closely associated with its work. The Council of Europe, Heads of Governments meeting in Vienna (8-9 October 1993) recorded:19
'We confirm our determination to implement fully the commitments concerning the protection of national minorities contained in the Copenhagen and other documents of the CSCE,' and continued
'We intend to pursue the close co-operation engaged between the Council of Europe and the CSCE High Commissioner for (sic) National Minorities'.
The Council of Europe summit was a significant breakthrough. Although it set no new standards, it reinforced the sentiment that 'the protection of national minorities is an essential element of stability and democratic security in our continent'. However attempting to restrict asylum seekers and migrants it noted:
'We will continue our efforts to facilitate the social integration of lawfully residing migrants and to improve the management and control of migratory flows, while preserving the freedom to travel within Europe'.
It then agreed six important steps, including initiatives:
! to improve the effectiveness of the European Convention on Human Rights;
! to enter into political and legal commitments relating to the protection of national minorities in Europe;
! to pursue a policy for combating racism, xenophobia, anti-Semitism and intolerance.
In the detailed text on national minorities, it instructs the Committee of Ministers:
! to draw up confidence-building measures aimed at increasing tolerance and understanding among peoples;
! to respond to requests for assistance for the negotiation and implementation of treaties on questions concerning national minorities as well as agreements on transfrontier co-operation;
! 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;
! to begin work on drafting a protocol complementing the European Convention on Human Rights in the cultural field by provisions guaranteeing individual rights, in particular for persons belonging to national minorities.
There did not seem to be a limitation to 'persons belonging to' national minorities but refers to 'protection of national minorities'. This group dimension was critical.
The Framework Convention
The Council of Europe then went forward and developed a framework convention20,21 on national minorities.
The `Framework Convention' is legally binding under international law and contains principles which each Contracting Party must implement through national legislation and appropriate government policies.The Framework Convention sets out, in the form of provisions, the principles to be respected by the State Parties. They thereby undertake:
! to combat discrimination,
! to promote full and effective equality,
! to promote the conditions necessary to preserve and develop the culture and safeguard the identity of national minorities,
! to afford persons belonging to national minorities freedom of peaceful assembly, freedom of association, freedom of expression and freedom of thought, conscience and religion,
! to ensure the right of access to and use of the media,
! in the field of linguistic freedoms
- to allow the use of the minority language in private and in public, as well as in dealings with the public authorities,
- to recognise the right to use one's name in the minority language,
- to recognise the right to display information of a private nature visible to the public in the minority language,
- to make efforts to display topographical indications in the minority language.
! in the field of education,
- to provide opportunities for learning minority languages and for receiving instruction in these languages,
- to recognise the creation of educational and training establishments,
! not to hinder transfrontier contacts,
! to foster transfrontier and international co-operation,
! to encourage participation in economic, cultural and social life,
! to promote participation in public affairs,
! to prohibit forced assimilation,
Following a year of careful negotiations, this led to the adoption of a Framework Convention on National Minorities which was open for signature in February 1995.
Combating Racism, Xenophobia, Anti-Semitism and Intolerance
The Declaration and Plan of Action on Combating Racism, Xenophobia, Anti-Semitism and Intolerance include important statements. The Declaration states boldly,
Alarmed by the present resurgence of racism, xenophobia and anti-Semitism, the development of a climate of intolerance, the increase in acts of violence, notably against migrants and people of immigrant origin, and the degrading treatment and discriminatory practices accompanying them;
Equally alarmed also by the development of aggressive nationalism and ethnocentrism which constitute new expressions of xenophobia;
Concerned at the deterioration of the economic situation, which threatens the cohesion of European societies by generating forms of exclusion likely to foster social tensions and manifestations of xenophobia;
Convinced that these manifestations of intolerance threaten democratic societies and their fundamental values and undermine the foundations of European construction.
The Plan of Action involves a European Youth Campaign, measures by states to combat racism, xenophobia, anti-Semitism and intolerance, mechanisms to propose further initiatives, support for seminar and research programmes, and promotion of education in the field of human rights and respect for cultural diversity inter alia. These represent an attractive menu of activities but the proof of the pudding will lie in the eating. The Council of Europe is well funded for conferences, seminars, parliamentary meetings and to a lesser extent, for acting as the European Human Rights Council. However, it is poorly funded for educational and project activity.
4. Implementation of Agreements
These agreements on minority rights have been drafted and entered into voluntarily by governments at intergovernmental meetings and it is primarily the responsibility of the same governments to ensure that social, economic and political measures are taken for their effective implementation.
4.1 O.S.C.E.
The OSCE has a plethora of monitoring mechanisms, which are essential for the verification of collective security agreements. These are seen in a positive light. It is not acceptable to suggest that these threaten sovereignty; their very presence is a confidence-building measure leading to greater security. In the OSCE Framework, these include major human dimension implementation meetings lasting three weeks, the last of which ended in Warsaw in October 1993. The regular meeting of the Committee of Senior Officials (CSO) receive reports from special missions, these may be ad hoc or more permanent such as those in the Baltic States. The High Commissioner on National Minorities also keeps the CSO informed, while maintaining his independence.
The mandate of the new High Commissioner agreed at the Helsinki Summit22 July 1992 stated:
The High Commissioner will provide 'early warning' and, as appropriate, 'early action' at the earliest possible stage in regard to tensions involving national minority issues which have not yet developed beyond an early warning stage, but, in the judgement of the High Commissioner, have the potential to develop into a conflict within the CSCE area, affecting peace, stability or relations between participating states, requiring the attention of and action by the Council [of Foreign Ministers] or the CSO [Committee of Senior Officials].
There are many words used here that do not have a precise meaning and consequently the interpretation by the first High Commissioner was crucial. The appointment of Max van der Stoel (the former Dutch Foreign Minister) was an exemplary choice and he is already working quietly and effectively in the Baltic states, in Macedonia and Albania, in Slovakia and Hungary, in Moldova, and on the Roma issue.
The danger of the Council of Europe and the OSCE having different standards and there being different standards in bilateral agreements has been pointed out23. This not only causes confusion, but a weakening of the concept of minority rights with the acceptance only of the lowest common denominator. Consequently, the emphasis by the Council of Europe summit on OSCE commitments was important. A second problem is that some states may believe that any Council of Europe legal instruments may make the CSCE political agreements obsolete. This would be highly deleterious for minorities, the two different `regimes' should be, and indeed can be, complementary, and implementation mechanisms can be mutually reinforcing.
Each country has a different legal system, some are in the process of finalising new constitutions, many face severe economic pressures at the moment and all have to respond to new political realities. It is unreasonable to judge a State's performance at a moment in time exclusively against legal norms, it is more constructive to include measurements of progress or regression over time in both the legal and political fields.
4.2 United Nations
The United Nations has long established mechanisms, with treaty bodies for supervising compliance with human rights conventions.24 These treaty bodies are made up of a limited number (10-20) independent experts, usually lawyers, nominated by their states. There is the Human Rights Committee, the Committee on Economic and Social and Cultural Rights, the Committee on the Elimination of Racial Discrimination (CERD) and the Committee on the Rights of the Child. In 1994, for example, the Human Rights Committee completed an interpretative opinion of Article 27 which has specific relevance to minorities. Treaty bodies receive state reports, enter into dialogue with the states and publish their conclusions.25 Unfortunately, these Committees have few sanctions and little coercive influence and their findings are not well known to `we, the peoples' on whose behalf the UN Charter was signed.26 The Committees monitor, interpret and comment, including the provision of encouragement to states or reprimanding them on their poor performance. A closer attention to these reports by UN agencies in their programming could be a highly constructive way of taking early action to prevent conflicts.
The 'UN Declaration on ... Minorities', which does not have the legal force of a convention ratified by a state, may however become part of customary international law, particularly for those states who proposed the supporting resolution and may be interpreting it in the same way as a convention. This could include most of the states of Central and Eastern Europe and the Nordic states, but excludes France, UK, Belgium, Spain inter alia. The challenge is to press states to treat this Declaration seriously.
It had been suggested by some participants in the Working Group on the Declaration27 that the UN Commission on Human Rights establish a working group with a mandate to reviewing minority situations which fall within the scope of the Declaration and, in so doing, to hear the views of governments, minorities, persons belonging to minorities and non governmental organisations.
Commission on Human Rights (February/March 1994)
MRG was asked to convene an informal Seminar around the Commission on Human Rights on Minorities and the UN System. The meeting attracted 31 participants from UN bodies and Agencies, Delegations to the Commission on Human Rights, experts on Minorities and MRG Staff. Ambassador Halinen from Finland chaired the meeting, which included a number of ambassadors among the participation from 17 governments.
The discussion included presentations from UN Agencies and bodies on their work in this field, dialogue on conceptual issues including definitional issues, tensions between university and diversity of regional approaches, and confidence building measures. The Seminar looked at key implementation issues and a range of suggestions28 were made including a Working Group of the Commission and/or Sub Commission.
The meeting was remarkable in the degree of interest that was generated in an NGO meeting around the Commission. Normally, it is unusual to attract more than a handful of governments to such a generalised discussion. The high attendance indicated the political sensitivity of the subject and the depth of concern felt by a significant number of governments.
In the debate at the UN Commission on Human Rights in 1993, a number of governments criticised the Sub Commission for its failure to give sufficient attention to minority issues29 and the inadequacy of its treatment of Professor Eide's highly acclaimed report. However, the final consensus resolution did not propose a Working Group of the Commission or any further implementation mechanisms for the UN Declaration or Professor Eide's report; it looked forward to the considerations of the Sub Commission. One clear dissenting statement was made by Finland, who criticised the weakness of the consensus resolution.
At the subsequent Sub Commission meeting [August 1994] there was a substantial and highly constructive debate held over 2 days, where most expert members of the Sub Commission made significant and supportive interventions. The importance of the UN Declaration was recognised in the final resolution and genuine appreciation was expressed for Professor Eide's major study.30 The Sub Commission then adopted a unanimous resolution proposing to the Commission that the Sub Commission should establish a Working Group on the UN Declaration ... on Minorities.
Once again, in February 1995, MRG convened a seminar around the Commission on Human Rights and it had a similar attendance to the previous year's meeting.31
The meeting was once again chaired by Ambassador Halinen and included a general discussion around Professor Eide's report and the recommendation of the Sub Commission to the Commission.
A wide number of proposals were discussed but the importance of establishing at least one new mechanism to promote the UN Declaration on ...... Minorities was emphasised. It was proposed that the role of a working group of the sub commission should be developed within this framework. The Working Group was not intended to become a permanent chamber of complaints, but might be established for a limited period of three years, to address the ways in which existing problems could be solved, including the effective implementation of the 'UN Declaration ... on Minorities' through establishing various mechanisms for its implementation.
Some two weeks later the Commission voted to accept a consensus resolution led by Austria and proposed by 32 other states to establish a Working Group of the Sub Commission.32
4.4 Council of Europe
The Council of Europe has a wide range of implementation procedures, including the proactive role of conferences, seminars and research. The new Framework Convention33 signed in its first week by 22 of the 33 member states will have an implementing mechanism. The Framework Convention includes a monitoring system for implementing these provisions, whereby the Committee of Ministers, assisted by an advisory committee, evaluates the adequacy of the Convention's implementation. The States Parties who have signed the Convention are obliged to present, within one year of the entry into force of the Convention, a report containing full information on legislative and other measures taken to give effect to the Convention. Thereafter, each Party shall submit reports on a periodical basis and whenever the Committee of Ministers so requests.
It is probably too early to judge the significance of the Convention, but much work will need to be done by States and the Council of Europe to ensure that this Convention has the confidence and support of national minorities. Minority Rights Group is currently conducting a survey of governments on how they intend to publicise and implement the Framework Convention and the OSCE agreements for non-signatories. Already MRG has received replies from eighteen states. These will be published in due course. However, it is also a critical time on standards. The additional cultural protocol is making little progress. there is a deadlock. This may not be a bad thing, as it is much more important to ensure that there is a protocol of some quality that will stand the test of time over 20 or 30 years, than to have something which will not be implemented and may undermine the quality of the whole Council of Europe.
A delay will help ensure that the Framework Convention is effectively implemented and that the quality and integrity of the Council of Europe standards are not undermined. Key questions remain on:
Who will provide information to the Council of Ministers?
Will there be financial aid to assist minority representations?
What will be the composition of the 'Advisory Committee' - expertise, selection, term of office?
Will the monitoring system be in public and how will conclusions be publicised?
How will the beneficiaries know of the convention?
What training will there be of Public Officials in these standards?
I would suggest that governments listen carefully to Officials of the Council and those with expertise on ECHR on what is needed for effective implementation.
The Framework Convention will enter into force immediately in each state party after ratification by 12 member states. Non-member States may also be invited to accede to it.
The signature of a convention by Western European democracies with a proper legal system to adjudicate claims has considerable constitutional implication, affecting internal case law interpretation and the behaviour of domestic courts. How states will choose to implement this Framework Convention is not clear, the Minority Rights Group has written to each of the signatories in an attempt to establish this.34 If we consider the monumental changes in the political map of Europe in recent years, and the rapid way conflicts between communities have developed, it will be crucial for the Council of Europe to ensure the speedy domestic implementation of the Convention. The immediate impact of the Framework Convention is therefore crucial.
4.5 Donors and Banks
The linkage that is being drawn between good governance and economic progress by western governments and lending institutions such as the World Bank, International Monetary Fund and the European Bank for Reconstruction and Development35 (EBRD) can place economic pressures on governments in Central and Eastern Europe. As yet this is not very sophisticated, though it can be expected that banks in their assessment programmes will be paying more attention to minority rights, with the serious implications for unsecured investments, than to human rights observance on its own.36
However, the European Community must go much further to be effective. Its larger schemes include neither equal opportunities provisions nor, at present, a sensitivity that 'National policies and programmes shall be planned and implemented with due regard for the legitimate interests of persons belonging to minorities'. It was the French Prime Minister Eduard Balladur who presented a proposal for a pact on stability to the 1993 Copenhagen summit.37 This would be supported by 'incentives and flanking measures' that could be taken to encourage peace and stability in Europe. Balladur specifically asks:
Economic: can the Community decide to provide specific assistance to countries taking particular care to solve their problems relating to minorities (for accompanying projects in specific regions), immigration or refugees (setting up resettlement programmes)? In the opposite case, can it also decide to cut off all co-operation ties with a country flagrantly violating the rights of minorities or calling existing borders into question? The Yugoslav experience shows that such incentives have their limits when they are not implemented in timely fashion.
The Stability Pact was signed in Paris (21 March 1995) it states in its opening declaratory paragraph
'We undertake to combine our efforts to ensure Stability in Europe'.
It continues
'A stable Europe is one in which peoples democratically express their will, in which human rights, including those of persons belonging to national minorities, are respected, in which equal and sovereign states co-operate across frontiers and develop among themselves good-neighbourly relations. A stable Europe is necessary for peace and international security'.
The major provisions are a list of inter state agreements, arrangements and political declarations for good neighbourly relations inter alia, including 4 projects in Hungary and Slovakia on minorities, and a list of 98 Phare supported projects. However, only a small proportion of these are of benefit to minorities and the ideas of incentives has not been included.
5. Outstanding Needs
5.1 GENERAL UNDERSTANDING
States are well aware that the fundamental political changes in Central and Eastern Europe has reduced the risk of a war between states and certainly between the NATO and the Warsaw Pact countries. However, OSCE, in particular, has also recognised that this new Europe is accompanied by major social and economic upheavals and has increased the possibility of violent conflicts within states, often provoked by neighbours.
Experience over former Yugoslavia, in particular, has led to a much better understanding by foreign ministries of the complexity of the issues, the impotence of many external actors, the ramifications of how an interstate conflict could lead to a regional war in the Balkans and, a recognition that pressure through the media sometimes obliges Western governments to intervene. Furthermore the high costs of military support, emergency aid, and several million refugees and displaced persons on the borders of Western Europe has dismissed any complacency.
There is a new determination by western European countries to prevent social upheaval, unplanned migration and social conflicts by taking earlier action to place regional security above state sovereignty. There is also a determination to reinforce democratic values to build a stable, economic environment. A dilemma remains for some western governments: how to limit tensions between ethnic groups in Central and Eastern Europe, while retaining the sovereignty of western governments to continue with their existing domestic policies on minorities.
Certain crucial issues including geographical and cultural autonomy have been too controversial for States to agree standards in this area. Nevertheless, in many cases of revolving tensions between communities in Western Europe, this has been found to be crucial. New forms of cultural autonomy within the media, education systems and resource allocations, undoubtedly need to be explored and lessons may be learned from Asia.
5.2 INTERPRETATION OF STANDARDS.
It is doubtful if much more progress will be made on standards for minorities in Europe in the near future and there is a real danger of the existing standards being inadequately implemented with weak monitoring mechanisms and less enthusiasm for rigorous enforcement regimes. One crucial issue is achieving the best interpretation of existing standards.
The device of focusing on a tight definition of national minorities is gradually breaking down as it is obvious that it is intellectually unsustainable and morally indefensible. Intellectual rigour and moral imperatives have never been important considerations for foreign ministries, however intergovernmental agreements necessitate political consistency and intellectual coherence so that they may be implemented equitably through political, economic and legal institutions. International Conventions, in particular, do demand clear agreements by all parties for the central mechanisms to be effective. However the very narrow interpretation of 'National Minorities' by states may lead to the new Council of Europe Framework Convention falling into disrespect. A wider interpretation of 'national minorities' is essential.
5.3 CONSISTENCY OF APPROACH
A second important issue is to promote a consistent approach within different regimes. The work on new standards has been rapid and there has been some 'leapfrogging' by developing standards agreed in one fora in a second. In some fora, CSCE and Council of Europe, the emphasis has been on national minorities and the agreements have included aspects of group rights and measures for empowerment. The references are primarily to `persons belonging to minorities' but not exclusively so. The notion that a person can freely choose whether to belong to a minority is cherished, but in reality identity is much more complex.
The UN Declaration on ..... Minorities, in contrast, refers to national or ethnic, linguistic and religious minorities, it includes issues of involvement in economic development, planning and programmes of co-operation between states. Its major weakness is that it is a declaration, a possible contribution to customary international law, it has a political and moral impact without the security imperatives of CSCE or the legal regime that the Council of Europe is introducing. A variety of different standards in different international fora can cause confusion and all of them falling into disrepute.
Hence it will be important for the new OSCE and Council of Europe to come closer together and for the Framework Convention to be implemented in a consistent manner.
5.4 INTER-COMMUNAL COOPERATION
A third central issue is to explore long-term approaches to building inter-community co-operation. The CSCE Human Dimension meetings in Copenhagen, Geneva and Moscow generated considerable debate and research within foreign and domestic ministries, many conferences and a new wave of research. This, together with the body of research already available, but often neglected, has led to a much better understanding of the issues by many governments. However, in this highly complex area that spans individual and group rights, social, economic and political rights, local state and international arrangements, much more needs to be done to find effective ways of achieving minority rights and peaceful coexistence.
Issues such as the promotion of identity, the full participation of minorities in economic progress, the planning of national policies and programmes to take due regard of minorities deserve serious studies to give practical meaning to these agreements between states.
There is a recognition that standards alone, even if adopted, are not enough and that specific implementation measures are needed in countries whether at state or local level. The work being done to look at 'models of good practice' will undoubtedly help governments and donors identify the more successful cases of 'accommodation' between communities, the factors that are helping to pull them together as well as apart. Some of the studies have been exercises in public relations and the demand for more serious, objective and timely reviews is growing. These are especially needed at local town and village level and examining influences that impact on local inter-community relations.
5.5 FUNDING POLICY
Fourthly, it will be important to involve funding institutions who have a mutual interest in promoting stability. The fear of reduced funding and possible exclusion from economic trading zones has led to governments with poor minority rights records being the first to sign various minority rights standards. The new standards agreed in the last four years by the OSCE ,by the United Nations and the Council of Europe have major implications.
States balance the treatment of minorities and the sovereignty of a state in a number of circumstances and, at least in Central and Eastern Europe, these are being reinforced by economic measures and new legal regimes both in constitutional arrangements and within the additional protocol to the European Convention of Human Rights. The large number of OSCE missions and interventions (already 110 by the beginning of 1993) and the High Commissioner for National Minorities (Max van der Stoel) are having an impact. It is however, always difficult to prove the success of early actions; it is often forgotten how much hard work is essential to secure good intercommunity relations.
The OSCE and the Council of Europe are attempting to work much more closely together and need to build a close rapport with the financial institutions of the European Community, the World Bank, the IMF and the European Bank for Reconstruction and Development. This may, over time, provide the pressure to conform to standards that the military pressure from the Warsaw Pact and NATO provided five years ago. However much has to be done and the International Monetary Fund's financial support of Russia, following the army's intervention in Chechnya, requires close monitoring to ensure that democracy and liberal policies are practised or the investment will be wasted.
The United Nations agencies are instructed to give due regard to the UN Declaration on .... Minorities in their activities including the provision of economic and technical assistance. There is little evidence that such constructive measures are being taken either by UN or by states in their programmes of assistance. This should be reviewed by the new UN Working Group on Minorities.
6. CONCLUSION
The pressures on Western European states to conform to these agreed norms is less than those in Central and Eastern Europe and the current divisions among European Community countries on practical measures inside the Community make immediate progress difficult: Belgium, France, Germany, Greece, Spain and UK are reluctant to promote minority rights because of domestic concerns. The addition of Austria, Finland, and Sweden to the European Community in 1995, all of whom have clear and positive attitudes towards minority rights inside and outside of their countries, should be helpful.
The economic recession which is confronting most of Europe, and the move towards open borders in the European Union are unlikely to lead to any liberalisation in policy towards immigrants and refugees for some years, though demographic pressures may eventually lead to more liberal policies towards migrant workers. Nevertheless, the concern over the growth of racism and xenophobia in Western Europe and growing concern in Southern European States over North African migrants may mean more resources will be provided by the European Union for programmes to promote stability in the periphery and to combat racism within Western Europe.
Past and current trends are not easily extrapolated into future trends. It is too dramatic to speak of the end of history, though it is self evident that the history based upon super power rivalry has gone at least for the time being and economic imperatives and new technology are dominating even the former communist states which have re-elected their former communist leaders under a new socialist guise, from Poland to Bulgaria. The notion that we also have a conflict of civilisations in east and western Europe bounded by the limits of Catholicism and the beginning of the Orthodox church and Islam has some semblance of historical truth, but trivialises the complexities of group cultures and identities, the multi-religious nature of much of Europe and the mobility that has always occurred within the region. The situation in each sub-region, in each state and indeed within communities, needs careful review, where generalisation provides greater confusion than clarity.
Long term initiatives are essential and the time for inter-governmental statements and agreements of principle need to be transformed into action. The emphasis in the future will continue to centre on conflict prevention and management, but the focus should and is likely to grow on longer term measures to encourage robust multi-cultural societies, providing "democratic security" that in practice will provide the protection from
inter-communal conflicts. However contradictions can arise. New democracies have inherent instabilities in the short term which totalitarian regimes do not possess. In the longer term the converse is true. The challenge remains to promote effective minority rights and economic development that will bridge the short and long term.
The European Union will be planning for further expansion in the next century. Consequently the emphasis is likely to be on new economic incentives to encourage stability, while stability at the periphery will attract new investments and the prospects of membership of a wider European Union. Conversely, those states that are unstable with tense, intercommunal relations are likely to be excluded from the new European Union, leading to further intergroup tensions.
This paper has been written as a personal contribution. It is based on the experience gained while Director of the Minority Rights Group. During the last few years it has been possible for me to attend the CSCE Human Dimension meetings in Copenhagen and Moscow, the Expert Meetings on National Minorities in Geneva and Warsaw, and the major review meetings in Helsinki and Budapest as an independent NGO member of the UK delegation. I have also attended meetings of the UN Human Rights Commission since 1989, briefing its working group on the UN Declaration on Minorities, as well as the UN Sub Commission, and the UN World Conference on Human Rights. Contacts with the Council of Europe have been more limited, the most recent of which took place in September 1995. The views expressed here are not necessarily the views of the Minority Rights Group.
Alan Phillips
© Copyright Minority Rights Group, November 1995
______________________________
1. The French, Belgian, Spanish and, more recently, German governments have failed to support measures at the Council of Europe and the United Nations.
2. See Stability Pact, Paris, 21 March 1995, signed by 52 CSCE states.
3. The World Bank: The World Development Report 1991.
4. CSCE Human Dimension meeting held in Copenhagen (June 1990) whose concluding statement was agreed by consensus by all 35 then participating states.
5. See Arie Bloed, L. Leicht, M. Novat and A. Rosas (eds) Monitoring Human Rights in Europe: comparing International Procedures and Mechanisms (Dord recht/Boston and London 1993).
6. See Francisco Capotorti, Study of the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, New York, 1979, UN Sales No E 78.XIV.I.
719. Professor Thornberry points out that there is some ambiguity here. The Roma certainly constitute an ethnic and perhaps linguistic group for international law purposes, and possibly (in some cases) a `tribal' group under ILO Convention No 169. The Council of Europe has described them as an archetypal European Minority [see The Council of Europe and minorities. P Thornberry and M Amor Martin Estebanez. September 1994]
8. Council of Europe Summit: Vienna, October 1993. The phrase National Minority was used in Article 14 of the European Convention of Human Rights in 1950. The earlier origins are not obvious.
9. Opus cit.
10. The author was an NGO member of the UK delegation and was able to listen in to the early informal discussion when the detailed agenda and working groups were planned.
11. See CSCE Human Dimension concluding statements from Copenhagen (June 1990) and Moscow (October 1991).
12. See note 4.
13. UN Charter (1945) and agreed to subsequently by all new member states.
14. See Patrick Thornberry in Universal Minority Rights, to be published in Spring 1995 by Åbo Akademi (and Minority Rights Group).
15. UN Secretary General, Agenda for Peace, September 1992, page 46.
16. See note 17.
17. See general comment adopted by the Human Rights Committee on 6 April 1994. CC PR/C/21/Rev.1/Add.5. United Nations.
18. See P Thornberry and M Amor Martin Estebanez in `The Council of Europe and Minorities' 1994.
19. The European Commission for Democracy through law, known also as the Venice Commission.
20. See note 19.
21. The Council of European Framework Convention on National Minorities was opened for signature in February 1995.
22. A valuable description of the development of the Framework Convention on National Minorities is given by Eeroo Amio in Universal Minority Rights, opus cit.
2335. CSCE Review Conference Helsinki 1992 was concluded with a Summit of head of Governments in July 1992 and a final document.
24. See Arie Bloed in Universal Minority Rights, opus cit.
25. For details of UN Treaties and Treaty Monitoring bodies see UN Centre for Human Rights `A compilation of International Instruments'.
26. For a critique of their work see bulletin of International Service for Human Rights Geneva, biannual publication.
27. It is often forgotten in the United Nations, which is dominated by governmental representatives, that the Charter of the United Nations beings `We the peoples of the United Nations determined ...'.
28. MRG was able to play an active role in the Working Group, attending the meetings and presenting papers with ideas.
29. See Alan Phillips, UN Commission on Human Rights, Occasional Paper, published by Minority Rights Group, March 1994.
30. See presentations of Nordic Counties inter alia and Commission resolution 1994/23.
31. Resolution of Sub Commission 1994/4.
32. See UN Commission on Human Rights, Occasional Paper by Alan Phillips, Minority Rights Group, February 1995.
33. See resolution of Commission on Human Rights proposed by Austria and 32 other states adopted on 3 March 1995.
34. The following states signed on 1 and 2 February: Austria, Cyprus, Denmark, Estonia, Finland, Hungary, Iceland, Ireland, Italy, Liechtenstein, Lithuania, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland and the United Kingdom.
35. Letter from Director of MRG. One small state has replied noting that it has no national minorities but signed this out of solidarity.
36. See mandate of European Bank for Reconstruction and Development.
37. The agreement (March 1995) by the IMF to provide conditional loans to Russia, reviewing developments monthly, may seem to contradict this following the Russian intervention in Russia but see The Economist, January 28 1995 and March 10 1995.