What’s Wrong with Minority Rights in Europe

Monitoring the protection of minorities has become an accepted part of international law – and numerous monitoring structures are now established within the framework of inter-governmental institutions. However, monitoring has inherent difficulties which cannot be solved by inter-governmental groups alone. This paper argues that complementary monitoring by civil society is an important means of alleviating the inherent legal and practical problems facing monitoring. Ultimately, the involvement of minority representatives in the process of monitoring is essential for effective functioning of minority protection regimes.

Instruments: who monitors what, and how?

In Europe, the Council of Europe (CoE) and the Organisation for Security and Cooperation in Europe (OSCE) provide the main frameworks for monitoring minority protection regimes. Both are inter-governmental mechanisms, although input from independent monitoring organisations is also permitted.

The most relevant standard pertaining to minority rights and against which national measures are monitored in the Council of Europe (CoE) is the Framework Convention for the Protection of National Minorities (FCNM) adopted in 1995. Article 25 requires State Parties to submit regular reports every five years on measures adopted in its implementation. The CoE’s Committee of Ministers (CoM) transmits state reports to an Advisory Committee (AC), established specifically to consider them. The AC is composed of 12 persons with recognised expertise in the protection of national minorities who serve in their individual capacity, independently and impartially. The AC is authorised to request further information from the state concerned, and may receive information from other sources, including independent (non-governmental) monitoring organisations and minority representatives. Upon consideration of the reports, the AC transmits its opinions to the CoM. The CoM considers these opinions and adopts conclusions on the adequacy of the measures adopted by the contracting Parties to implement the FCNM. The CoM may also adopt recommendations and set a time-limit for the submission of information on implementation. [1]

The OSCE 1990 Document of the Copenhagen Meeting of the Conference on the Human Dimension contains further standards of protection. The position of “High Commissioner on National Minorities” was created some years later. [2] Subsequent activities have led, for instance, to the expert meetings that drafted the 1996 Hague Recommendations Regarding the Education Rights of National Minorities, the 1998 Oslo Recommendations Regarding the Linguistic Rights of National Minorities, and the Lund Recommendations on the Effective Participation of National Minorities in Public Life, September 1999.

However, from the perspective of monitoring, these systems are far from perfect, as is quickly seen by looking at the related difficulties of definitions, standards, and data.

The problem of definition: what is a minority?

The term “minority” is not defined in the FCNM and, as a result, is subject to definition by states. Serious issues arise from this omission. The AC has underlined that in the absence of a definition, Parties must examine the scope of application of the FCNM within each country. [3] But in reality, the broadly constructed rules can be misinterpreted by State Parties: their practices must be scrutinised by independent monitors.

National legislators may opt for self-definition by national minorities, or they may construct their own definition. Article 3 (1) of the FCNM obliges State Parties to guarantee freedom to every member of a minority to decide freely whether or not to be treated as a member of the minority. This presents a legal question for monitoring in Europe: how to interpret the individualist approach assumed by existing instruments. Current protection mechanisms do not envisage, in general, the recognition of collective rights, even in states that have ratified the FCNM. [4] The emphasis is placed on the protection of persons belonging to minorities, who may exercise their rights individually and in community with others. The idea is that members of minorities should not be discriminated against and that states should promote the effective enjoyment of rights.

Importantly, the minorities protected by the FCNM are limited to members of so-called “national” minorities (thereby excluding, inter alia, religious minorities). Moreover, the AC appears to pay attention to “historic ties” in requesting the protection of certain groups. What are historic ties? Does large-scale labour immigration in recent years from a certain country “create” a new group deserving protection – is this a historic tie? In general, the AC has advised including other groups as minorities, where appropriate, through processes of consultation with the relevant groups. [5] However, there is a need to monitor the extent to which states follow this recommendation and extend recognition in practice to de facto minority groups.

A related problem arises when a state recognises different standards of protection for different minorities. [6] What is the core minimum in these cases? Does the will of the state prevail in practice? Furthermore, the demographics of each state vary significantly across the OSCE area, a fact which complicates the application of a unified framework to different realities. [7] For example, concerning Denmark, the AC has questioned the fact that indigenous peoples are not considered minorities, and that some minorities were defined on a territorial basis. It has been recognised that “[e]ach state within the OSCE faces a different set of issues concerning linguistic rights, and no two states have adopted the exact same set of policies.” [8] Effective monitoring has to move away from abstract definitions and to take into consideration the de facto existence of minorities and their actual situation in various areas of public life.

The problem of standards

Another major problem in monitoring minority protection is a lack of clear-cut standards against which minority protection might be judged, which results in a degree of inconsistency. The FCNM contains mostly programme-type provisions – it sets out objectives which State Parties undertake to pursue. In this framework of principles, every state decides which measures it will adopt. This margin of discretion must be carefully monitored.

One example where ambiguity may give rise to unjustified discretion, and even violations, is Article 15 of the FCNM on the obligation of State Parties to “create the conditions necessary for the effective participation of persons belonging to national minorities.” What are these “necessary” conditions? How are they to be interpreted in cultural, social, economic life and public affairs? What is an acceptable level of participation? A study by Frowein and Bank refers to the participation of minorities in decision-making, including parliamentary participation and parliamentary control, representation of minority interests in governmental agencies, informal channels of participation, and approaches in federal systems. [9] However, the practice in different states is quite diverse, and should be monitored to ensure that the “necessary” conditions, as adopted by states, respect and guarantee essential minority rights.

Another example is a clash between classical conceptions of rights, and the “best policies” advised by experts. For instance, in the framework of participation, some experts advocate the prohibition of political parties on ethnic, religious or regional lines. This prohibition would clearly constitute a violation of the right of freedom of association with political purposes (e.g. FCNM, Article 7). Can a certain minority group be prohibited from defending their interests by means of forming a political party, when other groups can freely establish political parties to defend their own interests? Monitoring of minority protection should pay careful attention that states do not abuse these so-called “best practices” in order to deny specific minority rights.

At the same time, it is difficult to assess the level of participation of members of minority groups in regular (non-minority) parties. How many seats are due to minority representatives? The study refers to the nomination of a minority spokesperson. [10] But is that enough? Should the nominee be a member of the minority, or might this role be performed by another (non-minority) person? Even if the representative belongs to a minority, how representative is he or she? Some states, such as Albania, Austria, Slovakia, Croatia, Macedonia and Germany, have resorted to the creation of formal bodies in charge of minority issues. Assessing the effectiveness of such bodies has to be a specific task of monitoring.

The task of a monitoring body should not stop after identifying the existence of formal structures. Monitoring of participation also has to address the representativeness of State-chosen interlocutors, to highlight whether minority participation is in fact effective. This could be achieved only by means of independent monitoring, which would consider input from a variety of minority organisations.

The problem of assessment: lack of data

Lack of data is often a serious impediment both to developing measures for protection of minorities and to monitoring the effectiveness of such measures. At the same time, monitoring is an important tool for generating data that is not otherwise available.

In the absence of statistics or other data broken down by ethnicity, it is hard to identify discriminatory practices, for instance, at the various levels in academic establishments, in the selection processes of employers, or in access to goods and services. [11] Especially problematic is the issue of institutional racism, and how to change an institutional culture, e.g., the police, when dealing with groups that are generally discriminated against on racial or ethnic grounds. [12]

Paradoxically enough, the FCNM requests individual determination of belonging to a minority. How should this work in practice? Should members of minorities register officially, and if so with what offices? Should public officials such as the police be allowed to make independent determination, e.g. on the basis of appearance, and to record it without having individuals concerned either identify themselves or consent to identification?

A chilling aspect of the history of human rights violations is that the identification or profiling of members of minorities can subsequently lead to atrocities against them, making them easier targets of attack or discrimination. The collection of ethnic data can lead to contradictory results – sometimes even abuse – when conducted by governmental institutions. [13] The expertise and professionalism of persons charged with monitoring activities, and the appropriate consultation with reliable sources, such as NGOs with expertise in the area and background in the field, is a practical issue to be taken into account.

Monitoring public opinion through informal surveys or polls, particularly among members of disadvantaged groups, and in cooperation with non-governmental actors may be a tool to avoid undesirable profiling and accumulation of sensitive (e.g. ethnic) data in the hands of state bodies such as the police. Such measures, recommended for example by the European Commission Against Racism and Intolerance (ECRI) and the AC, could help establish how members of minorities themselves perceive their situation, and create a clearer picture of concrete problems and disadvantages faced by minorities in the enjoyment of their rights and attaining an equal status in society.

Conclusion: no alternative to minority participation in monitoring

Any process lacking a role for the main stakeholders is designed to fail. A process blind to the point of view of the “beneficiaries,” may be formally satisfactory but will lack substance. Real dialogue with minority members is indispensable in monitoring activities, if findings are to be accurate and measures meaningful. Clearly, states that have assumed obligations with regard to their minorities should also assume a more active role in identifying and remedying problems faced by minority members. However, state monitoring – particularly monitoring of legislation and policies – is insufficient: conflicts of interest are inevitable. At the same time, inter-governmental monitoring suffers from legal and practical problems, as outlined above. Therefore, it is vital to involve non-governmental actors, i.e. civil society and particularly minority representatives, in monitoring, in order to ensure the objectivity and credibility of findings and their appropriate use. The empowerment of minorities through participation in monitoring processes – design, definition of problems and objectives, elaboration of tools and mechanisms of control, and impact evaluation of the tasks – is key to ensuring the effectiveness of minority protection mechanisms.

Mara Fernanda Prez-Solla, LL.M., is the Secretary-General of International Protection, a Vienna-based NGO.

Footnotes

[1] Rules on the monitoring arrangements under Articles 24-26 of the FCNM are provided in Resolution (97) 10, adopted by the Committee of Ministers of the Council of Europe on 17 September 1997 at the 601st meeting of the Ministers’ Deputies.

[2] Consult ODIHR-OSCE, OSCE Human Dimension Commitments a Reference Guide, Warsaw, 2001, p. 97.

[3] ACFC/INF/OP/1(2001)5, Advisory Committee on the Framework Convention for the Protection of National Minorities Opinion on Denmark, adopted on 22 September 2000, para. 8.

[4] An important question arises when a State is not a party to the FCNM and is therefore under no international obligation to report to inter-governmental monitoring bodies. Again, independent (non-governmental) monitoring may be an answer to this legal or political gap.

[5] See e.g., ACFC/INF/OP/I(2001)1, Advisory Committee on the Framework Convention for the Protection of National Minorities Opinion on Slovakia, adopted on 22 September 2000, para. 12.

[6] Resolution ResCMN(2002)10 on the implementation of the Framework Convention for the Protection of National Minorities by Italy (Adopted by the Committee of Ministers on 3 July 2002 at the 802nd meeting of the Ministers' Deputies).

[7] See ODIHR-OSCE, OSCE Human Dimension Commitments: A Reference Guide, Warsaw, 2001, p. 4.

[8] See High Commissioner on National Minorities, Report On The Linguistic Rights Of Persons Belonging To National Minorities In The OSCE Area, p. 2.

[9] DH-MIN(2000)1, The Participation of Minorities in Decision-Making Processes, November 2000.

[10] See DH-MIN (2000)1, p. 5.

[11] See e.g., OSCE Mission to Bosnia and Herzegovina, OSCE Office of the High Representative, OHCHR, UNHCR, Prevention And Elimination Of Discrimination In Employment Fair Employment Practices Strategy Revised Policy Paper October 2001, and Fair And Equal Employment Principles, 5 November, 2001.

[12] See e.g., Resolution ResCMN(2002)9 on the implementation of the Framework Convention for the Protection of National Minorities by the United Kingdom Adopted by the Committee of Ministers of the Council of Europe on 13 June 2002 at the 799th meeting of the Ministers' Deputies.

[13] See e.g., ACFC/INF/OP/I(2001)1, Advisory Committee on the Framework Convention for the Protection of National Minorities Opinion on Slovakia, adopted on 22 September 2000, para. 14.