1. Introduction
1. The motion for a recommendation entitled “Drafting
an additional protocol to the European Convention on Human Rights:
basic standards for national minorities” (
Doc. 11897) was referred to the Committee on Legal Affairs and
Human Rights on 20 November 2009 for report. At its meeting on 16
December 2009, the committee appointed me as rapporteur.
2. At its meeting of 6 and 7 June 2011 in Oslo, the committee
held an exchange of views with the participation of the following
experts:
- Professor Geoff Gilbert,
Professor of Law, Editor-in-Chief, International
Journal of Refugee Law, School of Law and Human Rights
Centre, University of Essex, United Kingdom;
- Professor Krzysztof Drzewicki, Professor of Law, Ministry
of Foreign Affairs, Warsaw, former Senior Legal Adviser in the Office
of the OSCE High Commissioner on National Minorities.
3. The above-mentioned motion for a recommendation stresses the
need to adopt an additional protocol to the European Convention
on Human Rights (ETS No. 5, “the Convention”), to set out and to
guarantee basic standards for national minorities within the framework
of the Council of Europe. That need arises in view of the inadequacy
of the present legal framework for the protection of minorities.
4. Indeed, binding minimum standards should be established for
national minorities and their members in order to guarantee equal
treatment for both majority and minorities and to eliminate any
difference between the Council of Europe’s member States in this
regard.
5. The Council of Europe broke new ground by adopting, on the
one hand, the Framework Convention for the Protection of National
Minorities (ETS No. 157, “the Framework Convention”) and, on the
other, the European Charter for Regional or Minority Languages (ETS
No. 148, “the Charter”). Most countries now recognise the positive
contribution that national minorities make to the societies in which
they live. However, these legal instruments appear to be inadequate,
in particular because they are relatively flexible and because they
do not apply to all of the Council of Europe’s member States.
6. It should be noted that some States refuse to sign and/or
ratify these instruments. This refusal has recently been examined
in depth by the committee.
7. As a result of the non-ratification of the Framework Convention
and the Charter by some member States, national minorities in those
States are discriminated against both collectively and individually,
being deprived of some basic rights such as freedom of association,
political representation, instruction in the mother tongue or free
use in public of the minority language. However, this is also the
case in some countries which have ratified these legal instruments
but do not implement them in an appropriate way.
8. I shall begin this explanatory memorandum with a presentation
of the Council of Europe’s principal legal instruments on the protection
of national minorities, and a survey of the Assembly’s and the committee’s
earlier work in this connection. I shall try to give a brief account
of the principal concerns about the implementation of these instruments
in practice. Then, I will strive to explain why it is necessary
to adopt an additional protocol to the European Convention on Human
Rights on minimum standards for the protection of national minorities
and what would be the advantages of such a protocol. I am greatly
indebted to the experts who took part in the exchange of views on
6 June 2011 for agreeing to assist me in this task.
2. The international
and European legal framework
9. It should be noted that there is no well-established
definition of “national minority” in international law. However,
Article 27 of the United Nations International Covenant on Civil
and Political Rights of 16 December 1966 stipulates that “in those
States in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be denied the right,
in community with the other members of their group, to enjoy their
own culture, to profess and practice their own religion, or to use
their own language”.
10. In the United Nations context, attention is also drawn to
the Declaration on the Rights of Indigenous Peoples,
adopted by the United Nations General
Assembly in September 2007, which affirms, in particular, that indigenous
peoples have the right to self-determination and that, by virtue
of that right, they freely determine their political status and
freely pursue their economic, social and cultural development.
11. At the European level, in 1990, States participating in the
Organization for Security and Co-operation in Europe (OSCE) signed
the Copenhagen Document, which introduced numerous new commitments
in the areas of human rights and the rule of law, among others.
This document also includes the
rights of national minorities, a subject which had hitherto been
paid little attention. The Copenhagen Document contains a definition
of “national minority” and a catalogue of minority rights. Following
the signature of this document, the OSCE High Commissioner on National
Minorities (HCNM) was established in 1992. Although his mandate
is focused on early warning and conflict prevention, the HCNM has
elaborated comprehensive sets of recommendations (which are not
legally binding).
3. Increased protection for minorities
within the Council of Europe framework
3.1. The European Convention on
Human Rights and national minorities
12. The European Convention on Human Rights does not
confer any specific rights on national minorities, although it enables
members of those minorities to enjoy, individually, some pertinent
rights guaranteed in it. They include, in particular, the right
to freedom of expression (Article 10), freedom of thought, conscience
and religion (Article 9), freedom of assembly and association (Article
11), the right of a person charged with a criminal offence to be
informed, in a language which he understands, of the nature of the
accusation against him (Article 6, paragraph 3.
a), the prohibition of discrimination
on grounds of “association with a national minority” (Article 14),
the right to education (Article 2 of Protocol No. 1) or the right
to free elections (Article 3 of Protocol No. 1). Under Article 34
of the Convention, persons belonging to national minorities may
rely on these rights directly in proceedings before the European
Court of Human Rights (“the Court”). However, in cases concerning
national minorities, the case law of the European Court has proved
to be somewhat timid. In its judgment in
Gorzelik
v. Poland, for example, while recognising the importance
of the protection of those minorities for stability, democratic
security and peace in Europe, the Court concluded that “it cannot
be said that the Contracting States are obliged by international
law to adopt a particular concept of 'national minority' in their
legislation or to introduce a procedure for the official recognition
of minority groups”.
13. The adoption of Protocol No. 12 to the Convention and its
entry into force on 1 April 2005 was a step forward in protecting
national minorities against discrimination. Article 1 of this protocol
introduces a general prohibition on discrimination in the enjoyment
of “any right set forth by law” (paragraph 1), which applies to
all acts of public authorities (paragraph 2). Therefore, any discrimination
against a person belonging to a national minority, including discrimination
based on the fact that they belong to such a minority, is covered
by the general ban on discrimination. Regrettably, the geographical
scope of the protection stemming from Protocol No. 12 is limited,
because so far only 18 of the 47 member States of the Council of
Europe have ratified it.
3.2. The Framework Convention for
the Protection of National Minorities
14. The Framework Convention for the Protection of National
Minorities,
drawn up within the Council of Europe
by the Ad hoc Committee for the Protection of National Minorities
(CAHMIN) under the authority of the Committee of Ministers, was
adopted by the Committee of Ministers on 10 November 1994 and opened
for signature by the member States on 1 February 1995. The Framework
Convention entered into force on 1 February 1998 and has now been
ratified by 39
of the 47 member States. It was
drafted and promulgated as a direct result of the rejection of Assembly
Recommendation 1201 (1993) on an additional protocol on the rights of national
minorities to the European Convention on Human Rights (see paragraph
33 below).
15. To date, four States – Belgium, Greece, Iceland and Luxembourg
– have signed but not yet ratified the Framework Convention, and
four other States – Andorra, France, Monaco and Turkey – have neither
signed nor ratified it. The Assembly has repeatedly urged member
States which have not signed and/or ratified the Framework Convention
to do so.
16. In view of the failure of earlier and often more ambitious
attempts, such as the Assembly recommendations (see below), the
Framework Convention for the Protection of National Minorities is
based on a particularly flexible legal framework. It is a detailed
text, but it is concerned only with principles, and has no real
binding monitoring mechanism.
17. It should be observed first of all that the Framework Convention
itself does not define the groups of persons who are entitled to
the protection it provides. Consequently, the scope of the Framework
Convention remains one of the most controversial issues connected
with its implementation, although the Advisory Committee of the
Framework Convention (“the Advisory Committee”) has attempted to
elucidate it through its thematic commentaries.
18. States parties have a wide margin of discretion in determining
the scope of the Framework Convention, because it contains programme
provisions defining certain objectives which the States parties
undertake to achieve.
While
these provisions are not directly enforceable, the States parties
must nevertheless respect the general principles of international
law and the fundamental principles set out in Article 3 of the Framework Convention,
which states that every person belonging to a national minority
has the right to choose to be treated or not to be treated as such
(paragraph 1). Moreover, the Advisory Committee of the Framework Convention
has repeatedly stressed that the interpretation given by the States
parties cannot be a source of arbitrary or unjustified distinctions.
The implementation
of the Framework Convention by the States parties is marked by a
variety of methods ranging from minimalist approaches (for example,
limiting its scope to the so-called “historical” minorities or to
certain selected minorities, while arbitrarily refusing to recognise
others) to more open and generous approaches.
19. The Assembly initially criticised the wording of the Framework
Convention, which it considered to be weak.
However, the
Framework Convention is the first multilateral treaty on the protection
of national minorities in Europe. It recognises collective rights
of minorities, to be exercised not by individuals but by the minority
group as a whole. The Advisory Committee is responsible for monitoring
the process of implementing the Framework Convention; this classic
treaty instrument is set in an intergovernmental framework, which
does not extend beyond the conventions and declarations of the United
Nations and the Council of Europe.
20. The pre-eminence of States or the State language is often
highlighted. The legal standards described in the Framework Convention
are not addressed directly to the minority groups. Only the States
parties can rely on the provisions of the convention. Moreover,
the scope of some articles is limited by vague expressions such as
“as far as possible” (for example, Article 9.3) and “where appropriate/necessary”
(for example, Articles 12 and 18).
21. Because of its flexibility, this legal instrument can be adapted
to the situation of the States parties, but it is not incisive enough
to afford effective protection to minorities. In fact, the Framework
Convention is strictly inter-State in nature, and a political consensus
in the Committee of Ministers is required to effect any change in
its provisions. In the event of any political disagreement, the
decision-making process in the Committee of Ministers is blocked.
22. As a result, the Framework Convention is closely bound up
with the need for political endorsement by the States parties, and
this may limit its extent and interpretation and its implementation.
The idea of an additional protocol to the European Convention on
Human Rights, on the protection of minorities, therefore seems to
be an effective tool to enable members of minority groups to rely
directly and individually on the provisions of this text.
3.3. The European Charter for Regional
or Minority Languages
23. The European Charter for Regional or Minority Languages
was adopted in 1992 to protect and encourage historical regional
languages and minority languages in Europe.
It entered into force on 1 March 1998.
24. It is a “variable geometry” treaty, since it proposes a great
many different measures that the signatory States can take to protect
and encourage regional or minority languages, such as, for example,
the use of bilingual road signs or opening schools specialising
in teaching a protected language. States are required to select
and take at least 35 of these measures.
25. To date, the Charter has been ratified by 25 States: Armenia,
Austria, Bosnia and Herzegovina, Cyprus, Croatia, the Czech Republic,
Denmark, Finland, Germany, Hungary, Liechtenstein, Luxembourg, Montenegro, Netherlands,
Norway, Poland, Romania, Serbia, the Slovak Republic, Slovenia,
Spain, Sweden, Switzerland, Ukraine and the United Kingdom. Eight
other States have simply signed it: Azerbaijan, France, Iceland,
Italy, Malta, the Republic of Moldova, the Russian Federation and
“the former Yugoslav Republic of Macedonia”. The Assembly has repeatedly
deplored the fact that almost half the Council of Europe member
States have not yet acceded to this legal instrument.
3.4. The groundbreaking work of
the Parliamentary Assembly
26. Already at the beginning of the 1950s, the Assembly
was reflecting on the best way to protect the rights of national
minorities and in 1961 it adopted
Recommendation 285 (1961) on the rights of minorities, which proposed to include
a provision on minorities in the European Convention on Human Rights.
While that attempt was rejected because of the abstract and imprecise
nature of the concept of protection of national minorities, the
criterion of “association with a national minority” was added to
the list of grounds on which a difference in treatment is prohibited
in the Convention (Article 14).
27. The Council of Europe subsequently concentrated on more sector-oriented
protection designed to preserve the culture of minority groups in
Europe. In this connection, the Assembly had attempted, in
Recommendation 285 (1961), to include in Protocol No. 4 to the Convention a provision
on the protection of minorities. However, that proposal had not
been supported by the Committee of Ministers.
28. While the idea of introducing legal standards to protect the
rights of minorities is not new, it was relaunched and developed
by the Assembly only in the early 1990s. In that sense, the transition
to democracy in the countries of central and eastern Europe brought
out into the open the problems associated with minorities in Europe
which had long been artificially stifled under the totalitarian
regimes.
29. In October 1990, the Assembly adopted
Recommendation 1134 (1990) on the rights of minorities on the basis of a report
by Mr Joseph Brincat (
Doc.
6294). For the first time, this recommendation advised the Committee
of Ministers to draw up a protocol to the Convention or a special
convention to protect national minorities. While general measures
to prohibit discrimination were needed, the Assembly also recommended the
introduction of special measures for minorities, such as the right
to maintain contacts with citizens of other States, and the right
to maintain their own institutions and to participate fully in decisions
on education in their mother tongue, which ultimately entails positive
measures on the part of the States. It is true that the Committee of
Ministers did not act on this proposal,
but the reference to the concept
of collective minority rights was an innovation that has since gained
ground.
30. In February 1992, the Assembly adopted
Recommendation 1177 (1992) on the rights of minorities, in which it expressed its
support for the adoption of an additional protocol to the Convention
(paragraph 12) and a declaration setting out the basic principles
relating to the rights of national minorities (paragraph 13). The Assembly
took note of the terms of reference given to the Steering Committee
for Human Rights by the Committee of Ministers in order to draw
up a proposal for a European convention for the protection of minorities.
However, it was doubtful about the proposed supervisory machinery
and insisted on drawing up an additional protocol to the European
Convention on Human Rights. Thus, in January 1993,
Recommendation 1201 (1993) containing the proposed protocol was adopted.
31. This proposed protocol recognises the individual rights of
persons belonging to a national minority and gives a definition
of the expression “national minority”. The text is noteworthy in
that it recognises rights with respect to education and language
and grants a certain autonomy to minority groups in the regions
where they are in a majority. It is true that
Recommendation 1201 (1993) is not binding, but it forms part of the commitments
undertaken by member States acceding to the Council of Europe and
is included as a reference document in bilateral treaties.
32. The idea of an additional protocol to the Convention was submitted
to the heads of State and government at their summit meeting in
Vienna on 9 October 1993. They instructed the Committee of Ministers only
“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 ….” and
“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”.
For that purpose,
on 4 November 1993, the Committee of Ministers set up an ad hoc
Committee for the Protection of National Minorities (CAHMIN).
33. In its
Recommendation
1231 (1994) on the follow-up to the Council of Europe Vienna Summit,
the Assembly deeply regretted that the Vienna Summit did not follow
its
Recommendation 1201
(1993) and recommended that the Committee of Ministers revise
its decision.
In the view of the Assembly, at
least a framework convention and an additional protocol on cultural
rights should have been adopted in order to reflect the principles
formulated by the Conference on Security and Cooperation in Europe
(CSCE) and in the Copenhagen Document.
34. The Framework Convention was adopted by the Committee of Ministers
on 10 November 1994 and CAHMIN continued its work on 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.
However, in its
Recommendation 1255 (1995) on the protection of the rights of national minorities, the
Assembly considered that the Framework Convention was a weak instrument,
because of the vague terms contained therein and because its monitoring
mechanism was too flexible, leaving too much discretion to the member
States. Recalling the principles listed in
Recommendation 1201 (1993), it recommended again that the Committee of Ministers
draw up an additional protocol to the European Convention on Human
Rights guaranteeing cultural rights to persons belonging to national
minorities. Despite this recommendation, in January 1996, the Committee
of Ministers decided to suspend the work of CAHMIN
on
this subject and “to continue reflection on the feasibility of further
standard setting in the cultural field and in the field of protection of
national minorities”, taking into account the Vienna Summit Declaration.
According
to the Committee of Ministers, drafting an additional protocol to
the Convention was not feasible, because some of its elements such
as the definition of a national minority, the nature and scope of
certain rights, did not muster the support of all member States.
35. In 2001, in its subsequent
Recommendation 1492 (2001) on rights of minorities,
the Assembly recalled its
Recommendation 1201 (1993) and reaffirmed the need for an additional protocol to
the Convention on the rights of minorities. However, once again,
the Committee of Ministers considered it premature to reopen the discussion
on this issue, stressing that Protocol No. 12, which was about to
enter into force, would cover all forms of discrimination based
on an association with a national minority.
4. Establishing an additional
protocol to the European Convention on Human Rights
4.1. Main elements to be taken into
consideration
36. As demonstrated above, the need for an additional
protocol to the Convention has been invoked several times by the
Assembly and, in view of the weakness of the current instruments
concerning protection of national minorities, it may be necessary
to come back to this issue now.
37. As stressed by Professor Gilbert at the hearing in June 2011,
there are various issues that need to be addressed if a protocol
to the Convention, on the protection of national minorities and
persons belonging to a national minority, is to be adopted: the
definition of rights-holders, the content of the rights to be included
in the protocol, the justiciability of any such rights and the sorts
of remedies that might be necessary to give full effect to the rights.
4.2. The definition of rights-holders
38. There is no definition of “national minority” in
international law. The Framework Convention does not contain such
a definition, which might be seen as one of its main weaknesses
and is one of the reasons why it is so difficult to secure a balanced
opinion on the situation in individual countries.
39. Legal precision requires that, if substantive rights are granted
to a specific group of people such as a national minority, this
group should be clearly defined in law. If an additional protocol
on the rights of national minorities were to be established, it
would need to define its rights-holders and therefore contain a
definition of the term “national minority”.
40. The draft protocol contained in
Recommendation 1201 (1993) proposed the following definition of the term "national
minority":
“a group of persons
in a State who: a) reside on the territory of that State and are
citizens thereof; b) maintain long-standing, firm and lasting ties
with that State; c) display distinctive ethnic, cultural, religious or
linguistic characteristics; d) are sufficiently representative,
although smaller in number than the rest of the population of that
State or of a region of that State; e) are motivated by a concern
to preserve together that which constitutes their common identity,
including their culture, their traditions, their religion or their
language.”
41. This definition contains four objective elements, (a), (b),
(c) and (d), and one subjective element (e), namely the desire of
the members of a minority to affirm their status as such and to
claim attachment to whatever gives them their specific identity.
Such a definition is essential, because it avoids confusion with
the rights of aliens, migrants or refugees.
42. However, although the Assembly was in favour of defining the
concept of “national minority”, there is no general acceptance for
filling this lacuna. As noted by Professor Gilbert at the hearing
in June 2011, there is always a risk that States will try to reformulate
this definition in order to exclude some groups from its scope. Moreover,
States may try to exclude certain groups through restrictive definitional
practices and interpretations (which has already been the case with
the Framework Convention). Thus Professor Gilbert considered that
one should refrain from defining the notion of “national minority”,
stressing that the Court had not done so either.
43. On the other hand, in any judicial procedure it is indispensable
to clearly define the rights-holders. The absence of a definition
of “national minority” would leave too much leeway for interpretation
and could only entail never-ending arguments between the Court and
States in the course of judicial proceedings. Therefore this issue
would require further reflection at the level of the expert bodies
which would elaborate the draft of the additional protocol. The
definition contained in
Recommendation
1201 (1993) could serve as a basis for further discussions.
4.3. The scope of rights
44. As stressed by Professor Drzewicki at the hearing,
two general options can be envisaged if an additional protocol to
the Convention is to be adopted. One is that the protocol contains
a detailed list of minimum rights for persons belonging to minorities.
Another option could be that a draft protocol provides for a general formulation
of minority rights in specific fields and limitation clauses. The
first option has the merit of “imposing” on the Court the specific
content of the rights in question and particularly their substantive
scope. However, it may imply more difficulties in the course of
negotiations and may lead to a final version of the protocol in
which the substantive content of minority rights would be seriously
limited. The second option is more flexible, because it leaves broad
scope for the Court’s interpretation of national minorities protection
standards. Moreover, as proposed in paragraph 9 of
Recommendation 1255 (1995), the additional protocol could include rights which
may be taken from both the Framework Convention and the draft for
an additional protocol proposed by the Assembly in its
Recommendation 1201 (1993).
45. Bearing in mind the advantages and disadvantages of these
options, I consider that a draft additional protocol could contain
the following minimum rights:
a. the
right of every person to express freely his or her belonging to
a national minority;
b. political rights (such as freedom of association, the
creation of political parties, participation in elections, representation
in public bodies, at both national and regional level);
c. cultural rights, including the right to cultural autonomy
as the main instrument to preserve the national identity;
d. the right to make decisions on different forms of autonomy,
in accordance with European practices and national or regional traditions;
e. the right to freely use the minority language in private
and public life, especially in relations with the administrative
authorities or the judicial system in areas where national minorities
represent a significant percentage of the regional or local population.
4.3.1. The right of every person to
express freely his or her belonging to a national minority
46. The right of every person to express freely his or
her membership of a national minority is a fundamental right, enshrined
in Article 3.1 of the Framework Convention.
As stated
in the Copenhagen Document, belonging to a national minority is
“a matter of a person’s individual choice and no disadvantage may
arise from the exercise of such a choice” (paragraph 32). The draft
protocol contained in
Recommendation
1201 (1993) also enshrines this right in its Article 2.
47. It results from this principle that the membership of a minority
cannot be imposed by the State authorities and that it also implies
freedom to alter that choice or not to identify with any minority.
A
person should be protected from any negative consequences resulting
from their choice.
4.3.2. Political rights (such as freedom
of association, the creation of political parties, participation
in elections, representation in public bodies, at both national
and regional level)
48. Article 11 of the Convention guarantees to every
person freedom of assembly and association (with the limitations
stemming from its paragraph 2). In addition, Article 7 of the Framework
Convention stipulates that States should ensure to persons belonging
to national minorities the right to freedom of association, which implies
the right to create political parties and organisations. However,
it would be useful if the right of national minority groups to create
associations, including political parties, were clearly enshrined
in a legally binding text such as a protocol to the Convention.
49. Indeed, persons belonging to national minorities should enjoy
rights allowing them to participate in public affairs. First of
all, they should be entitled to establish and maintain their own
associations (educational, cultural, religious, etc.), which can
seek voluntary contributions or public assistance (see also the
Copenhagen Document, paragraphs 32.2 and 32.6). Considering the
frequency of prohibitions on the setting-up of political parties
on the basis of membership of a national minority,
a
provision on the right to establish political parties would be very
useful indeed. Moreover, Article 6 of the draft protocol contained
in
Recommendation 1201 (1993) reaffirmed
these two rights.
50. Although the right to free elections is generally enshrined
in Article 3 of Protocol No. 1 to the Convention, there are no other
specific provisions on it in the Convention or its additional protocols.
Moreover, according to Professor Gilbert, the case of
Sejdic and Finci v. Bosnia and Herzegovina shows that
the right to participation in public affairs is even better protected
if it is granted to a group.
51. Effective participation in public affairs of persons belonging
to national minorities is also contained in paragraph 35 of the
Copenhagen Document and Article 15 of the Framework Convention.
According to the latter, “the Parties shall create the conditions
necessary for the effective participation of persons belonging to national
minorities in cultural, social and economic life and in public affairs,
in particular those affecting them”. This means, according to the
explanatory report, that States could promote,
inter alia, effective participation
in the decision-making processes and elected bodies both at national
and local level, as well as decentralised or local forms of government.
52. The issue of participation in public affairs has been explored
in the second thematic commentary of the Advisory Committee – “Commentary
on the effective participation of persons belonging to national
minorities in cultural, social and economic life and in public affairs”.
In the view of
the Advisory Committee, “representation and participation of persons
belonging to national minorities in elected bodies, public administration,
judiciary and law-enforcement agencies is an essential but not sufficient
condition for effective participation. Their inclusion in elected
bodies at different levels largely depends on the constitutional
traditions and guarantees provided for by electoral legislation.
The choice and modalities of the electoral system often has a direct
impact on the effectiveness of minority participation in decision-making”.
The Advisory Committee has found that, besides the possibilities
provided for by the two main types of electoral systems (majoritarian and
proportional), measures facilitating the representation of persons
belonging to national minorities in elected bodies, such as exemptions
from threshold requirements, reserved seats or veto rights, etc.,
should be supported.
53. I therefore consider that appropriate representation of national
minorities in public bodies, at both national and regional level,
could be ensured in an additional protocol to the Convention, irrespective
of the constitutional system of the State. For instance, the system
of proportional representation would ensure the fair participation
of persons belonging to national minorities in public affairs, especially
in constituencies where they constitute a large part of the local
population. In practice, this system could be coupled with other
measures such as those mentioned in the Advisory Committee’s commentary.
4.3.3. Cultural rights, including
the right to cultural autonomy as the main instrument to preserve
the national identity
54. As stated by Professor Gilbert at the hearing, expression
as part of the culture of a minority group contains many different
aspects beyond the obvious literature, art, music or performance:
the use of one’s mother tongue; different alphabets; names (particularly
with respect to official documents); access to various media. Some
of these aspects might be protected under Article 8 (right to respect
for private life) and Article 10 (freedom of expression) of the
Convention.
55. The right to express, preserve and develop one’s cultural
identity is mentioned in the Copenhagen Document (paragraph 32)
and is enshrined in a combination of provisions of the Framework
Convention (Articles 5, 6 and 15). Its general nature means that
the right to a specific identity is the basis for all the other substantive
rights.
One of the important aspects of cultural
rights is access to the media: persons belonging to national minorities
need to be able to create and make use of their own media.
The second thematic commentary of the Advisory
Committee also focuses on cultural rights. It stresses that delegating
competences to cultural autonomies can play an important role in
enabling national minorities to participate effectively in cultural
life.
In this context,
the process of decentralisation is of particular relevance.
56. Article 3.1 of the draft protocol included in
Recommendation 1201 (1993) enshrines the right of persons belonging to national
minorities to “express, preserve and develop in complete freedom
his/her … cultural identity, without being subjected to any attempt
at assimilation against his/her will”.
57. Some elements of expression are more susceptible to protection
through litigation. If an issue affects the group as a whole, it
has been argued that it is better for the application to the European
Court of Human Rights to be brought by the group itself (for example
with respect to the cultural autonomy of the group).
4.3.4. The right to make decisions
on different forms of autonomy, in accordance with European practices
and national or regional traditions
58. The Framework Convention does not provide for the
right of persons belonging to national minorities to autonomy, whether
territorial or cultural. However, in its second thematic commentary,
the Advisory Committee examined the functioning and impact of territorial
and cultural autonomy arrangements on participation of persons belonging
to national minorities in States parties where they exist. It found
that, “in the States parties in which territorial autonomy arrangements
exist, as a result of specific historical, political and other circumstances,
they can foster a more effective participation of persons belonging
to national minorities in various areas of life”.
59. Article 11 of the protocol to the Convention proposed in
Recommendation 1201 (1993) provides for the right of autonomy of national minorities:
“In the regions where they are
in a majority the persons belonging to a national minority shall
have the right to have at their disposal appropriate local or autonomous
authorities or to have a special status, matching the specific historical
and territorial situation and in accordance with the domestic legislation of
the State.”
60. As stated in the explanatory memorandum by Mr Worms,
this
right may have political repercussions, as States are afraid of
infringing the principle of the “territorial integrity of States”.
However, the proposed article was drafted with the intention of
preserving the integrity of the State in all circumstances: contacts
with nationals of another country must not infringe the above-mentioned
principle and they are subject to the possibility of derogation
provided for by Article 15 of the European Convention on Human Rights
(this is the only circumstance in which the proposed protocol provides
for the possible use of that derogation clause). Thus, the inclusion
of the right to autonomy in an additional protocol could be useful,
since the Advisory Committee has demonstrated that that can have
a positive impact on the participation of national minorities in different
walks of life; however, such a provision would need to be carefully
drafted.
4.3.5. The right to freely use the
minority language in private and public life, especially in relations
with the administrative authorities or the judicial system in areas
where national minorities represent a significant percentage of
the regional or local population
61. Linguistic rights of persons belonging to national
minorities are guaranteed as part of freedom of expression in the
European Convention on Human Rights (Article 10); however, their
protection in the case law of the Court has sometimes been weak.
These rights
are also enshrined in paragraphs 32.1 and 34 of the Copenhagen Document.
They are guaranteed in Articles 9 to 11 of the Framework Convention
and in more detail in the European Charter for Regional or Minority
Languages. However, the wording of Articles 9 to 11, in particular
the use of the formula “the Parties undertake to recognise that
…”, makes these rights weak.
62. Article 7 of the protocol to the Convention proposed in
Recommendation 1201 (1993) provides for linguistic rights. I agree with Mr Worms that
the inclusion of these rights in an additional protocol to the Convention
would be necessary because of the specific nature of the protection
offered by the machinery of the Convention.
4.4. Justiciability
63. If a protocol on minority rights were to be adopted,
the European Court of Human Rights would be able to receive individual
complaints concerning the rights contained therein on the basis
of Article 34 of the Convention
from persons
belonging to national minorities and from national minority groups.
64. Under the current system, complaints concerning minority rights
might be individual or collective. An application can be lodged
by individuals, groups of individuals and non-governmental organisations.
As mentioned by Professor Gilbert at the hearing in June 2011, procedurally,
there is nothing to prevent the European Court of Human Rights from
hearing complaints from individual persons belonging to a national minority
or from a group if the complainants can show themselves to be victims
of a violation of a Convention right. However, in practice it has
transpired that such complaints have not been successful for various
reasons, including formal ones.
This
is because the rights set out in the Convention are designed for
individual applicants and minority groups cannot always show a victimhood
separate from that of their members.
66. According to Professor Drzewicki, individual complaints to
the Court could undermine the position of the Advisory Committee
and its jurisprudence. Therefore, the Advisory Committee should
act as an intermediary between the Court and governments and develop
the jurisprudence on minority rights for the needs of recourse to
the Court.
67. As stressed by Professor Gilbert, a protocol concerning itself
with the rights of national minorities as well as persons belonging
to national minorities would have an advantage over the United Nations
system. While the International Covenant on Civil and Political
Rights provides expressly for the rights of persons belonging to
national minorities in Article 27, only individuals can submit a
communication to the Human Rights Committee under the First Optional
Protocol. Nor can any individual submit a communication with respect
to the right to self-determination under Article 1, for that is
a right of peoples.
4.5. Giving full effect to the rights
68. Remedies available before the European Court of Human
Rights are financial (namely payment of just satisfaction) while
national minorities want changes in legislation and policy. However,
the implementation of judgments of the Court finding violation(s)
of the Convention may sometimes lead to important changes in the legislation
and practice of the respondent State, since, on the grounds of Article
46 of the Convention, States must take so-called “general measures”,
aimed at preventing new similar violations in the future. The general measures
required by the Committee of Ministers in the framework of its supervision
of the execution of judgments can improve the situation of the community
as a whole.
.
5. Disadvantages of an additional
protocol and the idea of “guiding principles on rights for persons belonging
to national minorities”
69. As stressed by Professor Gilbert at the hearing,
several factors argue against the promotion of an additional protocol
to the Convention: the delay in getting cases dealt with by the
Court because of the backlog of applications; the limited reparation
offered by the Court; the nature of a judicial response generally
in this area of international law; the danger of duplication and
confusion with the work of the Advisory Committee; and the general
lack of political will at the international level to protect groups.
70. Hence, Professor Gilbert proposed encouraging greater liaison
between the Court and the Advisory Committee, for example through
the elaboration of “guiding principles on rights for persons belonging
to national minorities”. This could be carried out by academics,
judges and parliamentarians, for example in the form of a general
comment. Such guidelines would assist the Court in its interpretation
of the Convention.
They
could cover each provision of the Convention and its protocols so
as to alert the Court to a context broader than individual claims
alone. Given the need to obtain political impetus for the additional
protocol to be adopted and then ratified, guiding principles would
be swifter, more far-reaching and promote consistency across the Council
of Europe area.
6. Conclusion
71. This is not the first time that the Committee on
Legal Affairs and Human Rights and the Assembly have addressed the
question of adopting an additional protocol to the European Convention
on Human Rights in order to strengthen the protection of national
minorities. The protocol to the Convention proposed in Assembly
Recommendation 1201 (1993) was not followed up and its ideas, dating from 1993,
cannot be taken up today. In the meantime, the Committee of Ministers
of the Council of Europe adopted the Framework Convention for the
Protection of National Minorities and Protocol No. 12 to the Convention.
Although some progress has been made in the member States which
have ratified the Framework Convention and/or the European Charter
for Minority or Regional Languages, the issue remains an important
one and there is an urgent need to find effective solutions. Many
minorities are still in a precarious situation because States prefer
to promote and implement a single cultural model which very often
disregards the more diversified reality.
72. As stressed by Professor Drzewicki at the hearing, decades
of debates have demonstrated broad support for a complaints mechanism
on minority rights among the parliamentarians and civil society,
including national minorities themselves. This attitude has not
been entirely accepted by the governments in spite of the democratic
framework and mechanisms within the constitutional systems of governance
of member States of the Council of Europe. It seems that democratic
mechanisms do not operate in a satisfactory way. Hence, I conclude,
that it is time to eradicate the discrepancy between, on one hand,
the will of societies and its democratically elected representatives
and, on the other hand, that of governments, and, consequently,
adopt an additional protocol to the Convention guaranteeing minimum
rights to national minorities.
73. There are many reasons for considering an additional protocol
to the Convention. Most of all, any right must be accompanied by
a remedy. The rights set forth in the Framework Convention are not
justiciable, as they cannot be used before the European Court of
Human Rights, while Article 34 of the Convention allows groups of
individuals to be seen as victims before the Court.
74. The advantage of such a protocol would also be that all or
some of the provisions of the Framework Convention for the Protection
of National Minorities could be enforced by the European Court of
Human Rights, which could refer to the “jurisprudence” of the Advisory
Committee. The minimum rights contained in the additional protocol
should apply for:
- the right
of every person to express freely his or her belonging to a national
minority;
- political rights (such as freedom of association, the
creation of political parties, participation in elections, representation
in public bodies, at both national and regional level);
- cultural rights, including the right to cultural autonomy
as the main instrument to preserve the national identity;
- the right to make decisions on different forms of autonomy,
in accordance with European practices and national or regional traditions;
- the right to freely use the minority language in private
and public life, especially in relations with the administrative
authorities or the judicial system in areas where national minorities
represent a significant percentage of the regional or local population.
75. I am convinced that the incorporation of these rights in a
binding legal text, namely an additional protocol to the Convention,
would be the only way to curtail discrimination against national
minorities in the member States of the Council of Europe. The Assembly,
which secures respect for the principles of democracy, the rule of
law and human rights, could therefore again invite the Committee
of Ministers to draft such a protocol.
76. Drafting, adopting and ratifying such a protocol may take
many years. Therefore, as suggested by Professor Gilbert, a parallel
procedure would be needed: before the Council of Europe member States
adopt an additional protocol to the Convention, a quicker response,
such as guiding principles on rights of national minorities to guide
lawyers before the Court, could be drawn up.
77. In any event, members of the Parliamentary Assembly should
start actively promoting the adoption of an additional protocol
to the Convention at domestic level, both within their parliaments
and vis-à-vis their governments. Without political will, none of
the above proposals will be followed up. Therefore, I call again
on my colleagues in the Assembly to give impetus to the idea of
an additional protocol, in line with the Assembly's previous resolutions
and recommendations.