Cheers! (And now what?) The protection of minorities in the post-enlargement Union

About the author: Fellow, The Carr Center for Human Rights Policy, The John F. Kennedy School of Government, Harvard University; Visiting Assistant Professor of International Law, The Fletcher School of Law and Diplomacy, Tufts University; Former Director, Office of the OSCE High Commissioner on National Minorities.

The enlargement of the European Union must surely be judged among the most successful, and likely the most peaceful, political processes in history. Indeed, the idea of the Union is great by any measure. And so it has been recognised at both popular and official levels across the continent.

Europe and its Union generate aspirations and confidences in both security and prosperity. And historical experience evidences that they deliver on both. But Europe and its Union also, and perhaps fundamentally, carry moral values with a seemingly powerful social-psychological effect. They provide a framework for how to live together valuing the richness of shared historical experience, of geography and of socio-cultural diversity. Europeans appear simply to feel a sense of belonging and so support (lately apparently more so in the East than in the West) the political project, structure and institutions of an enlarging Union.

The essence of the political project of the Union is in the economic inter-dependence and prosperity that attends the peaceful co-operation of deliberative democracies respecting human rights under the rule of law. The Union and its members are not only committed to this project, but they are required to manifest that commitment in their own domestic orders, and are subject to controlling Union institutions to ensure that they do. As enlargement has proceeded from the original six to now 25 members, this deal has proved a powerful force – and a wholly necessary and defensible one in moral terms – for the reform of domestic orders and institutions within applicant States.

So, the European Union is a success. But will it remain so? With increasing diversity and scale, the new Union also features additional and widespread disparities, with expectations on all sides, at both popular and official levels, which might be difficult to meet. Of course, much depends on the concrete outcomes of enlargement – on the degree to which the promises of the ideal are delivered in fact. These arise both within the Union itself (for old members and new, if in different ways) and between the Union and its foreign relations. Certainly, there can be no doubt that enlargement has imported into the Union a number of problems, none so spectacular as the case of Cyprus which is not only divided but features foreign troops stationed on a part of its territory. How such challenges will be managed will be crucial to any sense of success. Within the enlarged Union, it is also likely that the increased diversity of nationalities, languages, cultures, religious groups (established or otherwise) and perspectives will tug at the seams of the Union. Some response in terms of applicable standards and institutions seems unavoidable. Foreign relations will also be affected, first of all in terms of interested new neighbours, but also relations beyond. Notably, the still continuing enlargement process must be kept in mind, with the same conditions for new members vital to maintain both for reasons of consistency and because of their inherent value in addressing existing problems.

To consider first the Union itself, it can only be hoped that the process of elaborating a new constitutional treaty will address two important short-comings of the Union with regard to the protection of minorities: 1) to bring “language” within the gambit of the non-discrimination principle applicable throughout the Union, and 2) to give concrete meaning to the declared common value of “diversity” by incorporating the Charter for Fundamental Rights in the new constitutional treaty framework. These two steps would not only enhance the credibility of the Union in the eyes of its citizenry and those of others, but they would ensure that the governing institutions and judicial bodies of the Union act accordingly. This is especially important for groups whose cultural attributes, especially languages, are not protected by domestic legislation through “official” status or entrenched rights. Concretely, this means many tens of millions of EU citizens with some groups larger than several titular communities who will be protected upon entering the Union by virtue of the official status of their language, culture and even religion.

While the interests and rights (pursuant to several international instruments applicable to EU members States) of persons belonging to minorities who are Union citizens could usefully be addressed through a developed policy and programme supporting cultural diversity, the more vulnerable (and certainly diverse) non-citizen population requires at least protection of their basic human rights. In this regard, the increasingly powerful Union and its executive and administrative arms should respect the principle of non-discrimination as articulated, especially, in Articles 2 and 26 of the International Covenant on Civil and Political Rights (which is applicable to all EU member States) and Protocol 12 additional to the European Convention on Human Rights (which provides largely the same as Article 26 of the International Covenant for Civil and Political Rights). As a matter of State responsibility, EU member States do not enjoy an excuse by virtue of their voluntary pooling of sovereignty (or use of agency) through the EU and its Commission. Rather, they are required not only to respect but to ensure that human rights are enjoyed by all human beings within their jurisdiction. This does not imply any privilege for anyone, neither EU citizens (belonging to majorities or minorities) nor non-citizens. Simply, it places upon the authorities of States Parties an obligation to ensure that they (and their agents) do not treat persons arbitrarily, i.e. treat them differently without sufficient (and permissible) reason. As human beings, non-citizens enjoy this entitlement which Member states should guarantee also in terms of the scope of authority delegated to the EU. If the Union or Commission have good reasons for differentiated treatment, and if this would be applied proportionate to the legitimate aim pursued and consistent with the rights and reputations of others, then distinctions between EU citizens and non-citizens would be permissible. But this would require to be established in each matter and case. Unfortunately, for the moment the Union and Commission appear relieved of the constraint of this basic principle at least with regard to “language”, notwithstanding that all EU Member states are bound to ensure rights for all human beings within their jurisdictions. This state of affairs seems wholly inconsistent and raises numerous questions; it also seems unnecessary, and so should be repaired without delay.

Corrective action with regard to the standards applicable within the Union should be attended by consistent and appropriate action in terms of institutions and programmes. For the Union to declare it values its cultural and linguistic diversity, but then fail to support it with much in the way of institutional behavior or dedicated programmes opens the Union to charges of hypocrisy. To be sure, the widening enlargement will add much in the way of support for a number of comparatively lesser used languages which, as official languages of new Member states, will now enjoy official recognition across the continent along with the enormous boost of investment in terms of the language services of the Commission. This will be to the clear benefit of certain minorities (e.g. Hungarians in Austria) in the old Member states who now will be able to access EU/EC materials in their mother tongue. Notably, this will have positive consequences for Turkish-speakers who, as a result of the entry into the Union of Cyprus (a bilingual State), will enjoy the benefits of official status of their language throughout the Union. (This may also have a positive effect for enlargement vis-à-vis the application of Turkey.) At the same time, there will be further disparity in treatment among linguistic communities within the Union, with, e.g., some 1.2 million Estonian-speakers, 2 million Latvian-speakers, 2 million Slovene-speakers and so forth (all net beneficiaries of Union economic transfers) enjoying greater protections than, e.g., some 10 million Catalan-speakers or much smaller numbers of Basques (net contributors). And this to say nothing of large minorities of Russians, Roma and others. If in fact the Union values (equally) its own substantial diversity, it must structure itself and function in such a manner as to extend practical support to all of its composite parts, especially to those parts of its diversity which are most vulnerable and in need. If it fails to do so, then it may not expect to be viewed as “successful” for the many millions of its citizens and others for whom it has held out such promise. As such, the Union should not expect to enjoy the confidence, support or even loyalty of these persons. This is not a small matter in a world where security and prosperity increasingly depend upon exactly such commitments.

The challenges in the Union’s foreign affairs are no less. As far as enlargement is concerned, its own great success risks to be undone for its new members who might conclude, in the absence of internal EU reforms, that there is no consequence to back-sliding on steps taken in the enlargement process. As regrettable and problematical as this would be, it would be a disaster for EU policy and the process of enlargement vis-à-vis the remaining and future candidate States. In particular, the 1993 Copenhagen criteria regarding respect for human rights and the protection of minorities had definite and substantial effects for many of the recently admitted States. This was important as a contribution to internal stability and for external relations. It would seem no less important (indeed, perhaps much more important) in the cases of some of the remaining and future candidate States. Should they learn that there is little consequence to failing to meet the requirements, or to backsliding upon admission, this would cause serious substantive harm to the processes and, eventually, the Union itself. In this respect, both scale and geography matter: arguably, the substantively similar challenges in the cases of, e.g., Estonia and the Slovak Republic are nothing to compare in terms of possible consequences with those arising in the cases of Turkey, the Balkans or (later) the Caucasus. As such, consistency of EU policy in favour of human rights and the protection of minorities would seem imperative.

The same might be argued, although with less immediate impact for the Union, with regard to the Union’s foreign and security policy beyond the context of enlargement. Specifically, the increasing projection and participation of the Union in the affairs of non-member States as a contribution to international peace, security, humanitarian relief and development demand a consistent approach – consistent in terms of the various engagements and consistent with the Union itself. For example, engagement in the former Yugoslav Republic of Macedonia is likely to be followed by a range of similar activities in parts of Georgia and Azerbaijan and beyond. Not only will the Union have to develop its capacity (as it is doing), but it will have to develop its policy in a consistent and credible way. One would hope that Europe’s own historical experience (recent and past) would have taught the Union that attention to the legitimate demands of minorities and the importance of management of existing diversity is imperative for peace, security, development and eventual prosperity everywhere. It should also have demonstrated the legitimacy and efficacy of political conditionality which it should not hesitate to employ in terms of its increasing international trade relations and in its development assistance and co-operation, e.g. in the context of the Lomé Conventions. In this respect, Europe would be viewed less as a hegemon and more as a partner which is internally and externally consistent and, therefore, reliable; as a consequence, Europe could shape developments through the use of its “soft power” with important gains for itself and others in terms of security and economic and social development.

On 1 May 2004 Europe (at least those fortunate to have made it in the Union) will rejoice. This is an occasion worthy of celebration and well deserved by all those whose efforts have contributed to its realisation so far. But, like any political project, it is only as good as what is delivers each day and, in this respect, how it is viewed by its constituents. In fact, the European project is unfinished and on-going. If it is to retain the support of tens of millions of persons belonging to minorities, both within the Union and those in still aspiring candidate and other States, it must demonstrate its ability to delivery its promise of security and social and economic development also for them. In a similar way, the same may be said for the development of Europe’s common foreign and security policy. In regard to both, important challenges remain. That our current celebrations will prove justified depends in part on the still-to-be-achieved success in meeting these challenges.