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Minorities in Europe

Legal Instruments of Minority Protection in Europe - An overview

By Thomas Benedikter

Bolzano/Bozen, 30. November 2006

Introduction [ top ]

1.1 What is a "minority? Some remarks about the terminology

The term "national minority" is still ambiguously defined in specialised literature as well as in the political debate. According to Capotorti's definition for the UN (Pan/Pfeil, 2003, p. XV) "minority" means a community
a) compactly or dispersedly settled on the territory of a state;
b) which is smaller in number than the rest of the population of a state;
c) whose members are citizens of that state;
d) which have ethnic, linguistic or cultural features different from those of the rest of the population;
e) whose members are guided by the will to safeguard these features.

In European research and debate on minority protection various terms are commonly used with different connotations, but rarely in a congruent manner (Pan/Pfeil 2003). In Central Europe the most common term is "ethnic group" or "Volksgruppe" (German for part of a people). This refers mainly to ethnic communities divided by national borders from the respective kin-people. This term is not matching the self-perception of peoples without their own state like the Catalans, the Bretons, the Corsicans, the Romany or the Raetoromanians.

The term "nationality", historically often used to designate a membership to a national community, rather refers to the citizenship of a country and is mostly overcome in the context of minority rights issues. Even the term "minority" itself includes disadvantages vis-à-vis the term "ethnic group", not only due to the fact that in all societies there is a wide range of different kinds of minorities, but also because the pejorative connotation. A minority is designated as national if it shares its cultural identity (culture, language) with a larger community that forms a national majority elsewhere. National minorities in this sense are, for example, the Germans in Denmark, the Danes in Germany, the Hungarians in Romania, the Romanians in Hungary etc.

In contrast to this, the term "ethnic minority" refers to persons belonging to those ethnic communities which do not make up the majority of the population in any state and also do not form their own nation state anywhere, such as the Raetoromanians in the Alps, the Celts or the Gaelic-speakers in North-western Europe, the Frisians at the North Sea, the Catalans in South-western Europe and a major number of peoples in Eastern Europe, especially in Russia. Such smaller communities in official texts are sometimes referred to as "groups speaking lesser used languages" to downplay their self-perception as smaller peoples.

In some European countries the term "linguistic group" or "linguistic minority" is also used in legal terminology referring to minorities (Belgium, Switzerland, France). As in the European context language (not religion) is the decisive feature of an ethnic group or people, linguistic and ethnic are mostly used as synonymous terms. But it can be observed that "linguistic" is also used when the problem of ethnic groups and their multifaceted nature is to be politically downplayed and differentiation of an ethnic group is to be reduced to language.

It has to be acknowledged that the issue of "minority rights" in Europe generally is referred to ethnic or national minorities. Sure, the principal distinctive single cultural feature of a minority is the language, thus often the reader comes across to the term linguistic minority or group. In contrast to South Asia in the European reality in the whole discussion there is nearly no reference to religious and caste related minorities, but in a few cases the "national" character of a minority is derived from an identity construction based on religious issues too (e.g. the Bosniaks in Bosnia, the Catholic Irish in Ulster, the Jews in the Russian Federation, which are "titular nation" of one autonomous territory).

In view of the difficulties of precisely carrying over the existing great variety of terms into the most important European languages, the Council of Europe, when editing the "Framework Convention for the Protection of National Minorities" (chapter 4.2), has chosen to simplify the terminology and decided to use the expression "national minority" in a representative manner. Hence, also in the following this term will be the dominant term when referring to ethnic communities in a minority position within a given state. Nevertheless it has to be kept in mind that there are good reasons for a more specific terminology.

1.2 National minorities between collective and individual rights

In Europe most national minorities live in their traditional homeland and due to historic evolution found them included in a state with a major "titular nation", a national majority which normally exerts a cultural hegemony by the sheer effect of numbers, economic, social and political power. The smaller ethnic groups tend to be structurally disadvantaged and excluded from power. How to redress this implicit bias of nation-states? Are anti-discrimination provisions sufficient? Which are the fundamental rights granted to ethnic or national minorities in Europe? How is cultural survival and protection of collective rights of national minorities safeguarded?

In the post-war period the UN-system of human rights has stressed the individual dimension of human rights, achieving to establish them as universal standard. But only after the decolonization period, the collapse of the Soviet bloc and the growing number of intra-state conflicts caused by the denial of the collective rights to minorities, the international community came back to focus on the collective dimension of minority rights. Minority rights are an essential part of the fundamental human rights in defence of human dignity against the state. But compared with the classical individual human rights there are specific features of minority rights as they can only be exercised collectively (religious activities, cultural, education facilities, language rights in public sphere etc.).

General attempts at minority protection based upon human rights at the international level are found, among others, in the prohibition against discrimination in Art. 14 of the European Convention of Human Rights (ECHR), in Art. 26 of the International Covenant of Civil and Political Rights (ICCPR) and in the minority clause of Art. 27 ICCPR and the UN-Declaration on the rights of persons belonging to national minorities of the 18 December 1992. The ECHR, in force since 4 November 1950 as a universal instrument of protection, does not directly touch upon the question of national minorities. But, as 55 years of experience with ECHR have shown, the purely formal equal treatment is not enough to solve the discrimination dilemma through democracy and human rights alone. This assumption has often brought about a policy of tacit assimilation, just omitting positive measures of protection of minorities a groups. The system of individual human rights needs to be integrated by the positive protection of national minorities on an individual as well as collective basis. Language, for instance, cannot be reduced to an individual right since its exercise depends on an institutional framework based on a collectivity which shares that culture. Culture is product and heritage of a group of people and its spiritual substratum, and thus it can only be preserved and developed as a group.

In many European states persons belonging to national minorities cannot use their language in the public sphere, in the media, in the institutions, in the education system. A number of languages are not even recognised. Hence, they are compelled to use the majority language whenever they get in touch with the public sphere or state institutions. Collective rights include not only the fundamental right to official recognition and the right to existence and identity, but other fundamental rights as a consequence of the recognition
- the right to use one's own language in the public sphere
- the right to education in one's native language
- the right to establish separate organisations including political parties
- the right to maintain contacts with the kin-sate or persons and institutions who share the same culture
- the right to exchange information and mass media in one native language.

The system of democracy, too, if minority rights are to be respected, needs to be corrected. The democratic principle of majority by virtue of numbers does not respect the interests of minority groups, especially when cultural, linguistic, "national" affairs are to be settled. National majorities tend to disregard ethnic minorities and need a permanent supplementary mechanism to protect them. Pan/Pfeil distinguish three types of participation in the political decision making process in order to grant real equality of minorities with majorities:
a) proportional representation (including the right to be represented at all);
b) equal representation in case of matters of vital interests of a minority group;
c) autonomy and self-governance for those national minorities, settling in their home-regions, and interested to manage their own internal affairs without interference of national majorities.

Only since the collapse of the Soviet bloc in 1990 the need of a new relationship between states and different ethnic groups living on its territory gained more attention. This was fostered first by the CSCE (Conference on Security and Co-operation in Europe), in particular from the Copenhagen document 1990. Its catalogue of protecting ethnic, cultural, linguistic or religious minorities is of such significance since it was the first time that 30 European states reached an agreement on minority rights under international law.

The second impulse came from the Council of Europe on its summit in Vienna 1993, which gave rise to a threefold approach to minority protection:
- a Charter for the protection of minority languages
- a Convention of the rights of minority members
- an additional Protocol on the Rights on minorities to the European Convention on Human Rights.

Whereas on the first two the European governments found a compromise, the third section of the minority protection system has been temporarily suspended. It would represent a decisive "third pillar" since only the inclusion of minority rights in the ECHR gives each individual European citizen the right to bring violations of his rights before the European Human Rights Court. A fourth pillar of a complete minority protection system would consist in a "Right of national minorities to autonomy" as a means to internal self-determination and self-governance., to be recognised in the form of a special convention. This issue will be dealt with in a second essay of this volume. Many European states are not even willing to discuss this proposal (a draft convention has been presented in 1994), considering autonomy as possible threat to their territorial integrity. The supporter argues that autonomy, does not infringe upon the integrity of a state, but prevents secession, instability and violent resistance.

In terms of international law a collective right means that a group is subject of the right, and hence a minority as a whole is entitled with rights, not just their single members. The group rights are more than the simple sum-up of the individuals. Minority protection requires a combination of collective and group rights. A member of a national minority can keep his identity only if his group or people has the possibility to exist and develop. Collective rights integrate individual rights and may not violate them. The states have been very reluctant to recognise collective rights of national minorities, as the UN-Declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities of 18 December 1992 in its strictly individual right approach, is to prove. But slowly the international community begins to acknowledge also group rights as legitimate to solve minority conflicts.

2. Some empirical background on Europe's ethnic minorities [ top ]

Between 1999 and 2002 in almost all European states census registrations have been carried out. According to the results in 2003 the number of persons belonging to a national or ethnic minority in Europe accounts to 86,674 millions (11,45% of the population) divided on 329 national or ethnic groups. In other terms: every tenth European citizen is directly concerned by the minority issue. Due to the quantitative dimension of the phenomenon this issue is one of the most important political questions in Europe at all. Apart from the mini-states like Andorra, San Marino, Liechtenstein, Malta, Monaco etc., which are not faced with minority questions, all European states are home to ethnic and national minorities. Even Portugal and Ireland, which someone retained to be "minority-less", are hosting minorities.

The empirical evidence is offering a new and somehow surprising view on Europe's ethnical and cultural variety:
1. No European country with more than one million inhabitants has no national minorities.
2. Even in Portugal, often retained a country without minorities, apart from the Romany, are living two Hispanic minorities. The remaining countries are hosting between 3 and 45 minority groups each. The major number of ethnic minorities obviously are living in the European part of Russia (45 groups), followed by the Ukraine (23 groups) and Romania (19 groups).
3. The respective share of national minorities on the total national population of the single European states is moving between a few percent and more than 30% as in Latvia, Moldova, Macedonia, Estonia and Serbia-Montenegro.
4. There are Romany groups in 28 states and German speaking groups (not as titular nation) in 22 states. Russians, after the collapse of the USSR, are a minority in 9 European and 7 Asian states. Ukraine alone is home to 11 millions of Russians.
5. The number of peoples in Europe is surprisingly high: 87. Some of these peoples count less than 10.000 members as the Tsachurians, the Karaime, the Kernians and the Livs, the smallest group living in the Baltic states.
6. There is a considerable number of languages which are without a State background: whereas Europe is counting 37 national languages, 53 languages are without a state (in other terms: no state is using that language as official language), but are spoken by just 5% of the Europeans. Those languages are also the most threatened languages.

Source: Christoph Pan/Beate S. Pfeil (2003), National Minorities in Europe, Vienna, ETHNOS, p. 10. The original version has been slightly corrected, assuming that in the case of the multinational states of Switzerland, Belgium and Bosnia-Herzegovina there are official titular nations and minorities in strict sense. Switzerland is considered the prototype of a multinaltional state, based on the concept of "linguistic communities".Thus, despite being by numbers a minority, the Germans in Belgium or the Raetoromanians in Switzerland cannot be considered a minority by constitutional law and rank. Since the secession of Kosovo from Serbia-Montenegro the new situation with the imminent creation of an independent Kosovo had to be considered. This would further increase the numbers of minorities.

The variety of cultures and languages is enriching Europe as language diversity is enriching South Asia. This variety is marking not only the Eastern part of the continent, but also the "old democracies" in the West. But a living culture depends on a living cultural and social habitat as a group. Having acknowledged this fact as a fundamental value along with the fundamental individual right to use and learn one's own mother language in every field of life there is growing space for the assertion that equality of rights is needed not only for individuals, but also for peoples or minority groups.

Since 1990 the protection of ethnic minorities in Europe has gained significant new momentum, fostering a growing activity of minority rights research. While in Europe in 2003 329 national minorities with more than 86 million members have been counted, just about 30 years ago the number of Europe's ethnic minorities has been estimated with 90 ethnic groups with a maximum of 38 millions of members. How can this expansion of the quantitative weight of the phenomenon be explained?
1. In modern Europe there is more political transparency and correct demographic data collection and publication. The information technology has added to the possibility to research and register also about ethnic groups hitherto unknown or forgotten.
2. Under the newly gained democratic structures, rule of law and respect of human rights many minorities have found back to their identity and the courage to stand up for their rights. The very existence of a national minority does not anymore depend on previous recognition by official state institutions. The UN-Human Rights Commission confirms with regard to Art. 27 of the International Covenant of Civil and Political Rights (UN ICCPR 1994): "The existence of an ethnic, religious or linguistic minority in a state party of the ICCPR cannot depend upon the decision of that state party, but requires to be ascertained by objective criteria."
3. The very number of European states since 1990 has increased significantly from 31 to 45. 14 states, almost a third, have gained or regained independence only in the 90ies. In those 14 states about 140 of the overall number of 329 minorities have been ascertained. Every new state led to additional national minorities.

Hence, the creation of new states is certainly not the best way to reduce the number of ethnic minorities. The modern means of minority protection are conceived to accomplish with human rights, democracy and the rule of law while respecting the territorial integrity of existing states. The real impact of national boundaries, under a ever more enlarging European Union, is even weakening, but on the other hand the issue of self-determination by the means of secession in Europe too is still not overcome. Several examples of splintered off regions in Eastern Europe and in the Caucasus (Transnistria in Moldova, Kosovo and Serbia, Abchasia and South Ossetia in Georgia, Chechnya and Russia) are proving this fact, and the ongoing low intensity warfare in Chechnya is demonstrating that violence due to national conflict between majority nations and ethnic minorities hasn't disappeared from Europe yet.

Many ethnic minorities are still seriously endangered. Ethnic groups can recover and increase by number, but in the same time others are moving steadily towards extinction. On the basis of new empirical data, there is new evidence about how and in which extent national minorities are threatened to get extinct, as the following examples show (Pan/Pfeil 2003):
1. Notably the minor, small ethnic groups face the major difficulties to survive due to various reasons. But when can an ethnic or national minority be considered a "small" one? According to some research the critical limit lies at around 300.000 speakers of a language. Below that limit a language is on long term seriously threatened. About 80% of Europe's 329 national minorities have less then 300.000 members. Thus the majority of those groups are strongly relying on minority protection systems if they are to survive.
2. Still there are various states in Europe which are strenuously opposing any real implementation of modern minority protection provisions. Their state doctrine does not even allow the recognition of national minorities (e.g. France, Greece and Turkey). At least 25 national minorities are living under this kind of backward regime regarding minority protection, although their number is decreasing.
3. A further problem is posed by several states which consider the basic rules and acts of non-discrimination of individuals as sufficient and reject any serious measure of positive enhancement of minority members.

Minority rights are group rights, and a purely individual human rights approach in many cases has proved to be ineffective. The minimal protection through anti-discrimination law has to be integrated by positive provisions of protection of group rights or collective rights. But more than the half of Europe's states still do not recognise collective rights of ethnic groups, and this is causing serious problems to more than the half of European ethnic minorities. Within the 15 old members of the EU until May 2004 there have been just 73 minorities which before 2004 made up just a quarter of all European minorities. After the last round of enlargement on 1 May 2004 the number of minorities inside the EU has risen to 156 and with the next enlargement to Bulgaria, Croatia and Romania the EU will be home to more than 190 minorities which is more than half of all 329 minorities living between the Atlantic and the Ural.

Source: Christoph Pan/Beate S. Pfeil (2003), National Minorities in Europe, Vienna, ETHNOS. Not included are the micro-states: Andorra, Iceland, Liechtenstein, Monaco, San Marino and the Vatican.

3. Minority issues: national or international? [ top ]

3.1 Minority protection on the national level

The recognition and protection of ethnic groups and national minorities in Europe is fundamentally an issue of state level politics. National parliaments of the single European states approve acts either for comprehensive regulations regarding the rights of all national minorities, enabling central or national governments to take action for promoting and protecting minorities, or delegating the issue to a lower governmental level (regional, provincial, municipal). In Italy, for instance, apart from establishing of several special autonomies due to the presence of national minorities, the centre has enacted a general provision to meet its obligation under Art.6 of the Constitution where the protection of national minorities is enshrined (framework law…….). The implementation of such provision, as in many other European states, is demanded to lower government levels, in the Italian case to the ordinary Regions. The political representation of national minorities in parliaments and governments and its international implications is however a feature typically retained in the powers of the centre.

Most of European states have launched some interventions to recognise and promote national minorities (or "regional languages", "local traditions" or "lesser used languages") many years before the first international covenants were discussed and came into force (1992 UN-Declaration on national minorities, 1995 the FCNM and the Charter on Regional or Minority Languages). Autonomy has been accorded to some specific regions mostly by national laws or constitutional amendments except two cases which have an international entrenchment: South Tyrol and the Aland Islands. Language policies have been a permanent important issue in such states with major ethnic communities or smaller nations as Belgium, Spain, the United Kingdom, and before 1989 Yugoslavia. But it was only in the 90ies that strongly emerged the need to entrench minority rights on a continental level in the form of international conventions, ensuring a common minimum degree of protection.

Hence, as for the legal basis of minority protection by the states and regions there is a considerable complexity of legislation, made up by national and regional acts of general or just sectoral nature (for instance acts referred only to minority languages in the field of education, in the public administration or in courts etc. Cf. MIRIS and MERCATOR ), and the related enactment decrees and provisions. A broad field of comparative analysis and evaluation is waiting for the researcher with huge differences and gaps in the quality of protection. Some more transparency has been provided by the annual reports each state party to the FCNM has to deliver periodically to the Council of Europe . But still an enormous work lies ahead if the politics of recognition and protection are to be critically evaluated. When considering the following international instruments of minority protection, the crucial role of implementation through national law and government provisions and The gap between paper and reality has to be kept in mind.

3.2 The interdependence of the minority question and its international character

Since in Europe nearly all states have ethnic or national minorities there is a mutual dependence between majorities and minorities with positive and negative aspects. The borders, drawn by history to demarcate the states and the settlement areas of the ethnic groups and peoples in Europe, does simply not coincide. Apart from the potentially destabilising effect of this fact, the presence of ethnic minority is a challenge for the recognition and protection of their fundamental rights. Europe has been the cradle of the ideology of the nation-state. From that perspective quite often minorities living in states with ethnically different majorities are facing the suspicion to be a kind of "fifth brigade"of their respective "kin-state" or at least they are considered "nationally not enough reliable". But finally it has been recognised that the minority question is a common problem for all Europeans and there is a growing awareness that this destabilising effect can be neutralised just tackling this important issue on an international level with general rules set out in internationally agreed frameworks. Exactly this is happening since about 15 years in Europe in different legal frameworks:

1. The whole OSCE-process started already 1975 with the Final Act of the Helsinki Conference and culminated with the "Copenhagen Document of 1995" (John Packer 2000). of these politics of recognition began with a common statement by CSCE-experts in Geneva in 1991: "Issues of national minorities and the fulfilment of international agreements on the rights of minorities are a legitimate international question and do not represent just an internal affair of a given state." This new principle has been confirmed by the Moscow Conference on Security and Co-operation regarding the human dimension. Since stability and peace cannot be established without a satisfactory settlement of minority questions the French prime minister Balladur in 1993 initiated the Stability pact for Europe which aimed to provide for security and stability for central and eastern Europe:
- encouragement of good neighbourhood including border and minority questions
- regional co-operation and
- enforcement of democratic institutions.

These purposes should have been achieved through a network of bilateral agreements containing also minority provisions. This stability pact has been signed and ratified by 52 state parties and has been most relevant for all the candidates for accession to the European Union: Latvia, Lithuania, Estonia, Czech Republic, Slovakia, Poland, Slovenia, Bulgaria, Romania and Hungary. In case of problems during the implementation of the stability pact's provisions it was arranged to adopt the rules and institutions of the CSCE for peaceful assessment of conflicts.

2. The European Council, the supreme decision-making body of the EU, in 1993 with regard to the Eastern enlargement of the European Union adopted the "Copenhagen criteria" as fundamental premise for accession to the EU. Major priority was put on the criterion of full respect of institutional stability as a guarantee of democracy and rule of law, full respect of human rights and the protection of minorities. Only after having met these obligations negotiations on accession can be started. This criterion is still the most important during the accession negotiations with further candidates in South-eastern Europe.

3. In addition also within the Council of Europe (CoE) there have been created two international protection instruments aimed to accommodate the minority questions: these are the European Charter for Regional and Minority Languages in 1992 and the Framework Convention on the Protection of National Minorities (FCNM) in 1994. Both instruments could come into force at the beginning of 1998 after a sufficiently big number of ratification by the parliaments of signatory states.

The FCNM came into force as a tool of binding international law to protect minorities. Actually 32 states have ratified the FCNM, some more have signed it already and will proceed to ratification soon. Just three countries, France, Greece and Turkey, keep on sticking to their national doctrine denying the existence of national minorities. In this overview we will have a look on four different spheres of minority protection provision: the Council of Europe, the OSCE, the EU and the bilateral dimension.

4. Instruments of minority protection in the framework of the Council of Europe [ top ]

The scope of the regional organisations and in particular the Council of Europe was to be the framework within which the most relevant developments in this field would occur during the last period. Thus, in addition to the work of the European Court of Human Rights (Strasbourg), which concentrated mainly on the principle of non-discrimination established in the European Convention for Human Rights (ECHR), this period has seen the approval by the Council of two international treaties, closely linked with this matter. These are the European Charter for Regional or Minority Languages ("Language Charter", 1992) and the Frame-work Convention for the Protection of National Minorities of 1994 (FCNM). The member states of the Council of Europe are 45.

4.1 The European Charter of Regional and Minority Languages

This Charter has been adopted as a Convention by the Committee of Ministers in its meeting of 25 June 1992, with the abstentions of Cyprus, France, Greece, Turkey and the United Kingdom. France, Greece and Turkey had opposed that the Charter had the nature of a convention and proposed to consider it as a "recommendation". The Charter was ready for signature by the member states on 5 November 1992 and came into force on 1 March 1998 after having been ratified by the first five countries.

The main purpose of the Language Charter is to protect and promote regional or minority languages as a threatened element of Europe's cultural heritage. So, the Language Charter tries to ensure the use of these languages in education and the mass media, allowing also their use in administrative, judicial, economic and social fields. The charter does not establish individual or collective rights for the speakers or regional or minority languages, but sets out the obligations of states and their respective legal systems with regard to the use of these languages. Indeed, the Language Charter seeks to promote regional or minority languages and only in an indirect way can it be considered as a legal instrument to protect linguistic minorities as such.

In Part I the Language Charter defines its terms of reference excluding from its contents the non-European languages which have recently appeared in the member states as a consequence of immigration. Although the protection is not limited to languages with a linguistic dominion in a given territory, the purpose of the Language Charter is to develop the use of the languages traditionally spoken in the continent, regardless of their official status, that is to say, the languages which are used in limited areas of the territory of a state or which are part of the heritage of minority groups not concentrated in any specific part of such territory. In this respect, each state, at the time of ratification, must declare which regional or minority languages are spoken within its jurisdiction and what dispositions of the Charter will be applied to each of them, whilst being aware of the different socio-linguistic realities and the structure of the Language Charter. This includes in Part II a list of basic principles that must be implemented with respect to all the languages concerned, while the Part III contains more specific provisions allowing the states, within the limits and requirements shown on the text, to decide freely whether to apply a provision for a given minority language. Finally, the Charter establishes in its Part IV measures for its application, including the creation of a European Committee of Experts.

This Charter nonetheless is designed for a limited purpose and that it manages to achieve providing a limited "undertaking" to recognize minority languages rather then to accord specific language rights to recognized languages. The approach adopted by the Charter enables countries to apply only those provisions which the state retains to be capable to apply allowing a huge space of flexibility. What might appear as an advantage to many states, in reality is a disadvantage to the national minorities which are not entitled to challenge concrete provisions under a precise text of international law.

4.2 The Framework Convention for the Protection of National Minorities

The origin of the Framework Convention for the Protection of National Minorities (FCNM) can be found in Recommendation 1134 (1990) of the Assembly of the Council of Europe, in which the parliamentary body defined some principles that should be applied to the protection of national minorities. On 10 November 1994 the Convention was adopted by the Committee of Ministers and came into force on 1 February 1998 after having been ratified by 12 member states. The FCNM is the first multilateral legally binding instrument devoted to the general protection of European minorities. Its aim is to protect the existence of national minorities within the respective territories of the parties. The Convention seeks to promote the full and effective equality of national minorities by creating appropriate conditions enabling them to preserve and develop their culture and to retain their identity. It sets out principles relating to persons belonging to national minorities in the sphere of public life, such as freedom of peaceful assembly, freedom of association, of expression and thought, conscience and religion and access to the media, as well as in the sphere of freedoms relating to language, education, cross-border co-operation.

The FCNM tries to give the signatory states a high degree of flexibility with respect to its implementation and to encourage the participation of the maximum number of states. The dispositions contained in the FCNM, unlike conventional international treaties, are not directly applicable, but oblige the state parties to set forth legislative and executive measures appropriate to implement the dispositions of the convention. The FCNM does not contain any definition of the term national minority. This initial claim was rejected on a pragmatic basis because of the great difficulties involved in reaching a general consensus amongst the different states in such a definition. On the other hand, according to the European liberal perspective, the rights included in the Convention correspond to the persons belonging to minorities and there is no reference to collective rights for the minority groups themselves. The explanatory report notes that the Convention does not imply the recognition of collective rights. This individualistic approach, following the UN-Declaration on minority members of 1992, recognises the right of any person to be considered as a member of a given national minority, regardless of his or her ethnic, linguistic or religious identity.

Generally the FCNM carries many flexible definitions open to each kind of interpretation depending on the interests and attitudes of the states. A good example is Art. 14.2: "In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the Parties shall endeavour to ensure, as far as is possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language." Formulations of this kind clearly give national governments a good deal of discretion on whether and, if so, how, to make provision for minority language education.

The FCNM can be considered therefore as a weak protective legal instrument giving to the states a wide margin within which to operate, within the respect to the existence of national minorities and the rule of non-discrimination. Its adoption shows in a way the fear generated by the Yugoslavian conflict, in the sense that neglect of protection for national minorities could provoke political instability, mainly in the Eastern and Central part of Europe. Despite its flaws, the Convention in its form and contents offers a minimum level of protection. The tentative nature of its goals is also reflected in the mechanisms which monitor its implementation contained in Section IV. These are based in the submission by member states of periodical reports that will be analysed by an Advisory Committee and the Committee of Ministers.

After the approval of the FCNM, the Parliamentary Assembly of the Council of Europe continued to press for the elaboration of an "Additional Protocol to the European Convention of Human Rights" to include the rights of persons belonging to national minorities, particularly in the cultural field. How has the FCNM been implemented? The control mechanism established by the FCNM is based mainly on the state reports on the implementation of the Convention to be delivered within a year. In 2002 32 European states were obliged to provide for this report. Most of them reported about the new legislation put into force since the 1990ies in the field of minority protection. This legislation very often still is to be improved and applied, but the first steps have been set and are enforcing a growing dynamics towards recognition and protection of minorities. It is sometimes astonishing to assist to real U-turns of state behaviour from ignoring totally the very existence of a minority, to a friendly attention and activity. A new political culture of appreciating ethnic minorities as a general enrichment is slowly spreading over the continent. From the single state reports some major issues are resulting.

a) About 50% of the states do not anymore have any problem with recognising their traditional minorities. Most of them in the next census will register the ethnic and linguistic affiliation of their citizens, if they have not done it yet. Some states (for instance Finland, Norway and Sweden) went further: beyond the already recognised minorities they are recognising more of them.
b) About 50% of the states have already created the legal prerequisites for the non-discrimination of members of minorities and the formal equality for all legal aspects. Of course full compliance by facts is still to be delivered, especially regarding the Romany.
c) The factual equality in terms of equal opportunities of all minorities in most states is still lying ahead and still seem in many fields a long way to go.
d) The right to use the mother tongue when dealing with public institutions and in the judiciary in nearly all states still is quite inadequate. Sometimes existing legal provisions are simply not applied. In some cases this is due to the fact that minorities have no homogenous settlement area rendering any language facilities more difficult.
e) The public education in the mother tongue of minorities is assured in a few states only. Most of the states are still lacking the legal basis or haven't yet implemented it.
f) The compliance with assuring the right to free association is much better now as 2/3 of the states have met their obligations.
g) The right of members of ethnic minorities to have cross-boarder contacts with their fellow persons and organisations sharing the same culture, language, history, traditions.
h) The right to information requires the equal access of minority members to all audiovisual and print media. In only 1/8 of the states this right is definitely assured, but not for all minorities living therein.
i) Major problems, apart from some more progressive states, have arisen with the political representation of the minorities, with the right to self-government and administration, with autonomy, with safeguarding the legal protection and enforcing the laws.

Regarding autonomous development there is nothing more than the statement that "the parties shall create conditions necessary for the effective participation of persons belonging to national minorities in cultural and economic life and in public affairs, in particular affecting them" (art.15), this a very weak obligation.

4.3 The effects of the Framework Convention of National Minorities and the Charter on Regional and Minority Languages

The Framework Convention on National Minorities has come into force in 2003 for 34 European and Transcaucasian states. Just France and Turkey still keep aside as their very raison d'etat does not recognise any minorities at all. In January 2006 38 states have ratified the FCNM, 4 governments had put their signature, but parliaments have denied ratification. No signatures have been registered by: Andorra, France, Turkey, and Monaco. No ratification has been accorded to the text by Greece, Belgium and Luxembourg. The "Language Charter" has been adopted by 19 European states , but 13 governments had given their signature without a ratification following. For both instruments there has been developed a multiphase control mechanism within the Council of Europe. This mechanism since 1999 has been successfully applied in several cases.

Both legal instruments, the FCNM and the Language Charter, in recent years have triggered a considerable dynamics in the recognition and protection of ethnic minorities in Europe. Not only the Eastern European countries seem to be fully involved in this evolution, but in a certain extent even the Caucasus region. Whereas the emphasis of the FCNM is lying in fundamental features and encompassing all basic issues of minority protection, the Language Charter is focusing on the linguistic and cultural questions, but in a more detailed way. The implementation of the Language Charter is linked to a broad set of practical and technical decisions, while the FCNM in many aspects provides provisions for minority protection in rather flexible and generic terms. The Language Charter might appear an instrument with a lesser impact as only the languages, but not the speakers are protected. But as languages, at least in the European social reality, are the main distinctive feature of cultural identity, their recognition, protection and active promotion is of utmost importance. Adopting effective means to protect and promote a minority language often is the immediate official public commitment to a comprehensive responsibility for the minorities as such.

The introduction of both instruments has in some cases even produced some surprising results. The implementation of the FCNM brought about divergence in both, the choice of the goals and the choice of the means, due to the diverging interests of the states and the national minorities. There are different strategies to tackle the respective interests. Some states try to involve their minorities in solving the problems like Hungary and Finland; others are not even interested to reach a consensus with their minorities. This is simply the continuation of a pattern of state actors behaviour tracing back to the constitution of Europe's nation states. France, with its deeply rooted tradition of centralist organisation, is only slowly setting new steps towards the recognition of its minority languages.

On the other hand it has been surprising that not a few minorities have not yet been capable to participate in the process of elaborating objectives and projects, tools and proposals for their own protection. This phenomenon came up mostly in those cases where minorities did not face resistance from central governments and they have been invited to join the process of implementation. There are many minorities in Europe which are still not politically organised and technically prepared to assume a role of full self-representation, as they still have to solve the problem of democratic legitimacy which is essential in a democratic system with the rule of law.

Some specific questions turned out in the 90ies as a medium and long term consequence of the dissolution of the Soviet Union in 1991. This is the change of roles between majorities and minorities which occurred in various former member states of the USSR, which gained independence. The former national minorities of the Latvians, Estonians, Lithuanians, Byelorussians, Ukrainians, and Moldavians became overnight state-nations, whereas the Russians living in USSR as a dominant majority in those states found themselves as national minorities. In all the new nation states the respective national language was accorded the status of official languages and to put much effort in recovering as a standard language. Paradoxically this new state languages - Estonian, Latvian, Lithuanian, Byelorussian, Ukrainian and Moldavian - had to be sustained, instead of protecting the new national minorities of the Russians. In most fields of state functions, from the education system to the judiciary, those languages had to be strengthened vis-à-vis the former dominant public language Russian.

5. Minority protection in the framework of the OSCE [ top ]

In the absence of a general covenant on linguistic rights and rights of linguistic minorities the OSCE tried to fill the gap. The OSCE has been established in 1973 as "Conference on security and Co-operation" in Helsinki and at its Budapest summit in 1994, during the Balkan wars, was renamed OSCE. Its primary task is early warning, conflict prevention, crisis management and post-conflict rehabilitation under Chapter VIII of the UN Charta. In a comprehensive approach it addresses a wide range of security-related issues including those related to national minorities and the linguistic rights of members of these groups. The OSCE elaborated a number of documents relevant for the rights of national minorities and established the High Commissioner for National Minorities (HCNM) .

The work of the OSCE in the field of minority issues flows from the so called "Human Dimension", approved by the CSCE in Helsinki in 1975 and its different guarantee mechanisms. The most relevant documents adopted within the framework of the OSCE concerning national minorities in Europe will appear in the years following the fall of the Berlin wall. The minority issue was one of the main subjects of discussion during the Copenhagen meeting on the Human Dimension in 1990, when an agreement was reached on a list of rights that should be granted to national minorities, although it was not possible to agree on any definition of minority. As a consequence of this, one of four chapters of the final document of this meeting is specifically devoted to the rights of person belonging to national minorities. The Copenhagen Document contains the most comprehensive set of standards concerning the rights of persons belonging to national minorities in 1990, including the right to use of the mother tongue, education in mother tongue, non-discrimination. The political significance of the Copenhagen Document lies also in the fact that the OSCE member states accepted that the protection of national minorities was a fundamental goal of the OSCE to maintain human rights, fundamental freedoms, democracy and the rule of law.

The so called "Charter of Paris for a New Europe", signed on 21 November 1990, reiterates the determination of the then 34 participant states in the CSCE to promote the rights of minorities. In the follow-up-meeting in Helsinki 1992 a OSCE High Commissioner on National Minorities was appointed with the main task to provide early warning and, if necessary, to activate mediation procedures when tensions involving national minorities seem likely to develop in such a way as to threaten peace and stability in the continent. His work, starting with December 1992, followed the lines drawn by the document of Helsinki, although the lack of a definition of minority within the European institutional framework has allowed him to intervene in respect to minority groups of a very different nature. According to his mandate, the High Commissioner cannot have dealings with groups that support terrorism. His mediating activities are periodically published from his office in The Hague and by the OSCE itself.

In this respect it is remarkable that, so far, the entire work of the High Commissioner has been developed around the situation of minority groups, either in Central or Eastern Europe or in the former Soviet Republics, and there has not been any action on minorities living in the territories of the Western European countries. Special attention was drawn on national minorities with bordering kin-states, potential source of intra-state tension if not conflict. In his attempts of conflict solving the HCNM has to approach all actors as an independent, impartial and cooperative actor. He promotes dialogue, engages in preventive diplomacy, and issues reports when an OSCE member state does not meet the international norms and standards.

6. Minority protection in the framework of the European Union [ top ]

6.1 General development

Since 1 May 2004 the EU encompasses 25 countries with 450 millions of Europe's 770 millions inhabitants. The enlargement process is still far from being concluded. The next rounds will in a first step include Romania, Bulgaria and Croatia in 2007 or later, and in a second step embrace the Balkans. Probably within 2010 there could be 8 additional member states, while a stony way is expecting Turkey on its way into membership with the EU. Is minority protection an issue in the European integration process? While the UN, the OSCE and the Council of Europe have unfolded a broad range of activities on the issue of ethnic minorities, the EU seems to be much less engaged. This, in history, is mainly due to the fact that the integration process has been first of all an economic project, more and more embracing political aspects too. The need to transfer political powers to the Union in order to harmonise minority protection principles, laws and politics towards ethnic minorities has never been a central issue yet.

Source: Christoph Pan/Beate S. Pfeil (2003), National Minorities in Europe, Vienna, ETHNOS. Candidate for membership is also Croatia with 4,4 millions inhabitants and 10 ethnic minorities maing up 11,4% of the total population.

The EU, in fact, is not an international, but a supranational organisation, which sets forth practical law in a broad range of policy sectors. It is estimated that nearly two thirds of all legal provisions in the area of the EU now is stemming from the Union. But every single act of the EU needs to be founded on a particular article of the EU-Treaty, where all its powers are precisely enumerated. In other terms, the EU cannot limit itself to issue just political statements and very flexible covenants, but it has to put in force concrete and binding legal instruments. Since commitment to minority issues would have binding force in legal terms for each member state, the EU members still have been reluctant to include this matter in EU-powers, considering it a classical core affair of the single states.

With the completion of the creation of the European Union (Treaty of Maastricht 1992) and the completion of the single market (1993) the European integration opened up to more political spheres, but still in the Amsterdam Treaty (in force since 1 May 1999) the EU refrained from taking up powers regarding ethnic or linguistic minorities. Although at least 30 millions of EU-citizens as their mother speak a regional or "lesser used" language, the efforts of the EU-institutions have been scarce. Rather a negative approach can be perceived as the EU is actively controlling whether national law aimed to protect minorities is compatible with EU principles and laws, for instance it is checking carefully whether specific linguistic provisions (bilingualism in minority areas) are compatible with the basic freedom of residence of EU-citizens and freedom of movement of workers on the whole EU-territory.

Hence, the activities of the EU relating to minorities, also after the Treaty of Nizza (2000) remained rather scarce. They can be divided into four groups:
- measures of mainly political character, developed by the European Parliament, in promotion of cultural diversity and preservation of the cultural heritage
- measures undertaken by the European Commission, the Council (and the Parliament), characterised by a functional approach;
- measures taken in the framework of the EU foreign policy, without touching the internal sphere of the EU;
- not minority oriented policies, which still are relevant to minority issues. These include areas such as human rights policies, anti-racism policy, refugee policy etc.

Among all European institutions (Parliament, Council, Commission, various courts) the Parliament is the organ which has shown the most intensive interest in minority issues. A range of resolutions dealing with ethnic and linguistic minorities have been approved by the Parliament:
- 1981: Resolution on a "Community Charter of Regional Languages and Cultures" and on a "Charter of Rights of Ethnic Minorities"
- 1983: "Resolution on Measures in favour of Linguistic and Cultural Minorities
- 1987: "Resolution on the Languages and Cultures of the Regional and Ethnic Groups in the European Community".
- 1994: "Resolution on Linguistic Minorities in the European Community" on the basis of the so called Killilea report.

The member states should recognise their linguistic minorities and create the basic conditions for the preservation and development of these languages. The legal acts should at least cover the use and encouragement of such languages and cultures in the sphere of education, justice and public administration, the media, topographic names and other sectors of public and cultural life. This resolution for the first time laid also to concrete measures and programmes of the EU to promote minority languages.

The European Parliament reiterated its fundamental approach to human rights establishing the respect of the rights of minorities (ethnic, linguistic, religious, homosexual etc.) as prerequisites for accession negotiations. Another example of that approach is the "Resolution on racism, xenophobia and anti-Semitism and on further steps to combat racial discrimination. It states that combating discrimination against immigrants and religious minorities is "integral to any comprehensive policy against racism and xenophobia". Last but not least there have to be mentioned some European Parliament-resolutions which are treating specific minorities (in Albania, Romania, resolutions on discrimination of the Romany in several countries). As the EU has no normative powers regarding the protection of minorities, it could not create any binding normative act such as directives or regulations.

6.2 Other measures of the EU to sustain minorities

A second group of measures taken within the EU implies measures of technical nature as, for instance, a budget sustaining minority-favouring institutions and activities. The EBLUL (European Bureau for lesser used languages) acts as a lobby group on behalf of the 30 millions of EU-citizens who speak more than 30 minority languages and acts as a coordination centre for minority language related activities. Partly through EBLUL the EU has commissioned and financed a huge number of studies, research and publication works related to minority issues. The EU's Eastern enlargement process provided a fresh impulse to go further in the only linguistic dimension of minorities in Europe, giving the minority question a clear political and legal dimension.

The Treaty of Maastricht (1992) already gave the European integration process a clear trans-economic dimension by establishing a political Union. Also the cultural dimension of the European integration and the culturally homogenous character of each member state now is fully acknowledged. This laid to the assumption of an article in the draft European Constitution Treaty which states in Art.22 "The Union shall respect cultural, religious and linguistic diversity". As EU-Commission president Prodi put it: "…we must never forget that Europe is all about diversity. Therefore it need us to respect and reap the rewards to diversity. European integration has always been about diverse peoples with varied cultures…Diversity is one of Europe's greatest treasures." Thus starting from the Commitment to the positive concept of cultural diversity, which has to be respected and protected, the Union tried to spur all member states to protect actively their minority cultures and languages.

6.3 Minority protection in the EU's foreign relations

Since 1992 minority protection has gained particular importance for neighbourly relations with central and eastern Europe with the prospect of accession to the EU. The "Pact on Stability" was adopted at a Conference in Paris in 1995 by the representatives of 52 member states of the OSCE, which also later became responsible for its implementation. The Pact showed that minority issues are of crucial importance for European politics. The European Council too saw in the Pact, despite its geographically wide character, a means by which to exercise some influence on the candidate countries in the political sphere.

In June 1993 in Copenhagen the European Council approved a set of criteria which every state interested in accession had to meet. One of the political criteria of Copenhagen, besides democracy, rule of law and human rights, is that the candidate for accession demonstrates respect for and protection of minorities. Subsequently the European Commission analysed and discussed in detail the situation of ethnic minorities, regretting various discrimination situations in some candidate states. The accession agreements adopted later on contained short-term and medium-term priorities also for the politics. For instance the Czech Republic, Hungary, Bulgaria and Romania in 1998 were invited to improve the integration of the Romany population. By that way the Copenhagen criteria turned out to be a kind of "Structural or founding principle" of the enlargement process, which are to be respected in any state applying for membership of the EU. Unfortunately not all member states of the EU would go away with a positive verdict when analysed under the Copenhagen criteria for minority protection, as for instance France and Greece, since stricter basic principles and rules for minority protection were still not elevated to primary EU-law. Although the Copenhagen criteria are not legally binding, they have to be applied to any further accession candidate state.

In conclusion it has to be recalled that nor in the EU law system nor in the external relations there are still no fully binding provisions on the issue of minority protection, but just political declarations and accession criteria. There is still non formal reciprocity, which would compel all EU-member states to implement those criteria themselves in their internal legal order. Hence, legally minority protection - despite general resolutions in a European level - is not yet clearly defined and equally provided by all member states. As a consequence minority protection still is no legal condition for accession or membership. and not yet a part of the so called "acquis communautaire" even if developments are currently moving in this direction. It will primarily depend on the political opportunities and priorities focused inside the EU-25. In political terms it seems quite impossible that the future EU will step back on this issue being it a significant part of all accession negotiations.

How has the issue of ethnic minority protection been inserted in the EU Constitutional Treaty? Art. 13 states: "Without prejudice to the other provisions of this Treaty and within its limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion, disability, age or sexual orientation". On the basis of this relevant reference in primary EU-law the EU provides for the inclusion of measures favouring ethnic or linguistic minorities through instruments such as, for example, action programs. This approach could even intensify in near future given the reference in the Constitution text, which has been approved.

6.4 The EU and its ethnic minorities: a long way ahead

Summing it up the issue of protection of ethnic minorities inside the EU-system is characterised by contradictions, but it is open to further improvement. The relevance of the issue in the last 15 years has been constantly proving. Whereas in the 80ies the European Parliament has pushed the necessity of preserving the linguistic and cultural heritage of national minorities, after 1992, the new concept of cultural diversity opened a new space to politics of recognition and promotion of ethnic minorities. The process of eastern enlargement in the 90ies brought minority protection to a stricter political dimension in external relations too. There is an increasing tendency to minority protection in the EU-system too, although it failed to establish a clear-cut reference to this principle in the EU Constitution Treaty. The overall conditions for establishing minority protection in the EU and in national law are strong, but still it depends on the political willingness whether this legal basis is going to be enforced.

Measures aimed to enact the effective and complete equality between members of a national minority and the members of the majority population of a given state hence cannot be any more considered an act of discrimination. This is a very significant step forward in protecting minorities, now binding law in all 36 states which are party to the FCNM, but not the EU-member state France. There is in this context a conflict between international law and EU-law regarding minorities. In cases of doubt the EU-law does give priority to its own law and considers measures of affirmative action of members of a minority as an act of discrimination.

In the future all EU-member states will still detain the primary competence on minority protection as residence states and secondary competence as kin states. The positive discrimination (affirmative action) as a fundamental principle of the protection of minorities therefore cannot be easily given up in order to fully respect the principle of equality before the EU-law. The EU-law should enable all member states to further develop their internal law and not offer opportunities to turn back to previous rules which proved to be insufficient. This leads to the conclusion that the EU-law should enshrine the principle of positive discrimination as a basic pillar of minority protection. About 86 million people in Europe need the implementation of these rights if they are to enjoy all their human rights. Exercising these rights is possible without doing any harm to the rights of the majorities .

The EU's approach to minorities is at best ambiguous. On the one hand Art.128 of the Treaty of the EU and the various EU-programs in force indicate a commitment to recognising minority nations as groups to be accorded distinct group rights. On the other hand major political and institutional developments in recent years suggest that the EU is more committed to individual rights, particularly in the moves to complete the single market, the application of Regional and Cohesion Policies, and the manner in which the Committee of the Regions has been established along functional, rather than cultural lines. Whilst the group rights approach in respect of ethnic minorities appears to have gained some ground in recent years, it is still "trumped" by the individual rights approach which grants all individuals the right to be different, whilst maintaining their full rights of citizenship. This is in contrast to the emphasis on the need to grant ethnic minority rights outside the EU which has become a major feature of the EU-enlargement negotiations and foreign policy in general.

In the foreseeable future, the European Union is unlikely to commit itself formally to a group rights approach in the accommodation of ethnic minority claims. Factors likely to prevent this include institutional disagreements and different policies toward minority nations inside and outside the Union. As the EU grapples with economic and monetary union, enlargement, institutional reform and the need to remain economically dynamic in an increasingly competitive global economy, it is unlikely to change its ambiguous approach to the issue of ethnic minorities. Concentrating on individual rights at the expense of national group rights, however, has various implications for the process of the European Integration. First, the recent history of the former Soviet Union and the Czechoslovak and Yugoslav Republics indicate that the perils of ignoring regional cultural diversity, as do the experience of Canada in its tense relationship with the province of Quebec. Secondly, seeking to accommodate minority groups through an individual rather than a group rights approach provides evidence to the nature of the European integration in the future. Where the efficient working of the market place conflicts with issues referring to cultural diversity the former will prevail. Minority nations and multi-nation states, which are concerned that European economic integration has implications for their cultural diversity, should take note.

The "Bolzano/Bozen-Declaration" , released on 1 May 2004, comprises a package of policy proposals for an enlarging EU in the area of minority protection. The declaration assumes a rising importance of the EU when it comes to the protection of European national minorities taking into account the overall principle of subsidiarity (powers should be devolved to the government level which manages them in the most efficient way). The declaration highlights what is politically and legally possible within existing policy and demonstrates how the protection of minorities can be strengthened in a consistent manner.

7. Autonomy as a means of minority protection [ top ]

In 1994 the FUEN (Federalist Union of European National minorities) has presented a draft convention on autonomy rights of ethnic groups in Europe as a document to enhance discussion for a special convention . Autonomy, in the interpretation of the FUEN, shall mean an instrument for the protection of national or ethnic minorities which, without prejudice to the territorial integrity of the state parties shall guarantee the highest possible degree of internal self-determination and at the same time a corresponding minimum of dependence on the national majority. Generally speaking, there are three types of autonomy:
1. the territorial autonomy for the regions where a minority forms a majority of the local population;
2. the cultural autonomy in traditional settlement areas of a minority where this minority doesn't form the majority of the population,
3. finally the local autonomy for single administrative units (i.e. in isolated settlements) where a minority forms the majority of the local population.

In 2003, the Parliamentary Assembly of the Council of Europe has adopted the Resolution 1334 and Recommendation 1609 on the positive experiences of autonomous regions as a source of inspiration for conflict resolution in Europe . In this sense, autonomy or regional self-government can be seen as a kind of national partnership of mainly two partners, namely the central power of a state and the democratically elected regional power. It can be said that it's always preferable to co-operate, saving resources, and seeking partnership instead setting up discrimination and risking confrontation. From this point of view, autonomy or regional self-government is a useful method of conflict prevention in particular in regions inhabited by more than one linguistic or ethnic group. Another essay in this volume will treat more extensively this particular instrument of minority protection and its application in Europe.

8. Other developments in the field of minority rights [ top ]

8.1 Bilateral Treaties

The legal developments concerning minority rights which took place in Europe after the fall of the Berlin Wall in 1989 did not only occur within the ambit of the international organisations. On the contrary, unlike the first decades after the Second World War, the new situation caused by the alterations to the European political map between 1989 and 1994, has encouraged the signing of many bilateral treaties by the states of Central and Eastern Europe as a complementary tool to the multilateral instruments. These treaties that can be grouped under a common category are generally known as "Treaties of Good Neighbourliness and Friendly Co-operation". The treaties, encouraged by the Council of Europe, the OSCE and the European Union, have the double aim of guaranteeing reciprocally the recognition of current boundaries and protecting the national minorities that very often symmetrically inhabit the different states of the eastern and central part of Europe.

The first treaties to be named are the Swedish-Finnish Treaty for the autonomy of Aland and the Gruber-De Gasperi-Treaty between Italy and Austria to establish autonomy for the German speaking Tyroleans in the province of South Tyrol. The new model of bilateral treaty was set only in the 9oies with the Treaty of Good Neighbourliness and Friendly Co-operation between Germany and Poland, signed on 17 June 1991. Since that time 18 similar treaties have been signed by the states of Belarus, Bulgaria, Croatia, Czech Republic, Germany, Hungary, Latvia, Lithuania, Moldova, Poland, Romania, Russia, Slovakia, Slovenia and Ukraine. The structure of all these treaties shows great similarities. After the initial declarations on the mutual recognition of borders and mutual adhesion to international standards, a second section is normally devoted to the protection of national minorities recognising some fundamental rights, such as the right of the minority to preserve its own identity, the right to effective participation in the national or local decision making processes and some linguistic and cultural rights, mainly in the educational field. Several treaties have been followed by the setting up of intergovernmental committees to monitor their implementation, but generally the treaty clauses regarding minorities, if they exist at all, are very vague. Some of the treaties incorporate literal dispositions from political documents by the United Nations, the Council of Europe or the OSCE, thus giving them a legally binding nature between the parties. None of the treaties include any provision establishing a system of territorial autonomy for the minority communities covered by them.

Although it might be recognised that these treaties had a positive effect on the protection of minorities in Eastern and Central Europe, it can also be argued that the lack of coercive measures to ensure their implementation makes them relatively ineffective. On the other hand, the treaties have been elaborated following governmental discussions in which the representatives of the communities concerned have normally not be involved. Finally, the treaties do not provide any definition of the term minority but it can be concluded from the respective text that the application of these clauses is restricted to those national minorities who are a majority in the territory of the other contracting state. This means that not all the territorial or personal minorities living in the concerned states are protected by their contents.

Finally, among the international treaties signed in this last period concerning minority issues or national conflicts, the Good Friday Agreement of the Northern Ireland Peace Process of 1998 should also be mentioned, given that two different states, the UK and the Republic of Ireland, are bound by it. This agreement, although most peculiar in character, must be considered a legal development to protect minority rights in this region. Its main interest is not only to establish new domestic and international institutions, but also to recognise the right of the inhabitants of Northern Ireland to self-determination in respect of their political status, either to remain part of the United Kingdom or to integrate the six counties into the Republic of Ireland.

8.2 Possibilities and limits of minority protection by the kin state

It is a new phenomenon in the field of the protection of minorities that an increasing number of European states are to regulate their responsibility on behalf of the members of minorities living outside the state's borders by national law. This process has started in Sweden and Finland in 1920 with the Alands, then in Austria in 1946, Slovenia followed in 1996, Slovakia in 1997, Greece and Romania in 1998, Russia in 1999, Bulgaria in 2000, Italy and Hungary in 2001. This new development is already embracing a considerable part of Europe and several more states are to follow those examples. The issue has gained momentum when Hungary accorded a special status to the members of the Hungarian communities living in the neighbouring countries of Slovenia, Croatia, Serbia-Montenegro, Romania, Ukraine and Slovakia (Law LXII of the 19 June 2001). This so called "Act of Status" provides a privileged treatment of Hungarian speaking people also inside the country of residence whose citizens they are. Hungary has prepared the way of this act by intensive bilateral consultation with its neighbours, some of these states raised criticism like Romania and Slovakia after the law came into force. But such measures are in accordance with international law if they respect the principle of territorial sovereignty, of good neighbourhood, the general human rights and civil liberties and the prohibition of discrimination. Hence it can be assumed that the kin state is entitled to take all measures compatible with the general international law, with bilateral agreements and, if a member of the EU and Council of Europe, with EU- and ECHR-law, particularly regarding the issue of discrimination on the basis of ethnic or religious features.

9. New perspectives of minority protection in Europe [ top ]

Based on the new protection instruments in international law a new era has began in Europe: it is a historical innovation that in most European states a general system of minority protection has been activated. The process of implementation will certainly require many years. It is not exactly foreseeable which kind of dynamics it will produce and which solutions for all single situations it will create.

The Framework Convention on National Minorities has come into force in 2003 for 34 European states. Just France and Turkey still keep aside as their very raison d'etat does not recognise any minorities at all. They are still considered a threat to the unity of the country. In January 2006 38 states have ratificated the FCNM, 4 governments had put their signature, but parliaments denied ratification. No signatures have been registered by: Andorra, France, Turkey, and Monaco. No ratification has been accorded to the text by Greece, Belgium and Luxembourg. The "Language Charter" has been adopted by 19 European states, but 13 governments had given their signature without a ratification following. For both instruments there has been developed a multiphase control mechanism within the Council of Europe. This mechanism since 1999 has been successfully applied in several cases.

Source: Christoph Pan/Beate S. Pfeil (2003), National Minorities in Europe, Vienna, ETHNOS.

This cautious, but however questionable attempt to evaluate the situation of protection of minorities in 36 states on a quantitative level leads to the conclusion that
- 6 states have met their obligations to an extent of more than 70%;
- one third (12 states) have respected between 50 and 70% of their duties;
- more than one third (14 states) have respected between 35-50% of their obligations;
- just four states (France, Belarus, Greece and Turkey) are lagging far behind.

It has to be acknowledged that only in the 90ies many states have complied with a wide range of minority rights, often under the obligations assumed with becoming first a candidate and then a full member of the EU. The rapidity of the diffusion of juridical provisions and fundamental norms, now generally entrenched in the respective constitutions, is respectable, but there is still a lot of work ahead. Three quarters of all European states have already inserted basic provisions of minority rights and protection in their constitutions removing this issue from the reach of simple majority decisions in the national parliaments. Taking into account that this evolution is coming up just since 10-11 years these results are not negligible. The overall result is positive in spite of the fact that no state party has met its obligations to 100%. But considering the rapidity of the implementation we have reasons to be optimistic.

Comparing the EU member states with the EU candidates (e.g. the newly accessed states) we may observe that the majority of EU members have complied to a major extent (60-80% of compliance) to their duties under both legal instruments, whereas the majority of new member states and the membership candidates are concentrated in the middle range (40-70% of compliance). But we should not ignore that even within the EU there are still quite considerable differences and France, Turkey and Greece can be considered developing countries with regard to the protection of ethnic minorities.

Additionally the EU in its foreign and security policy has set standards for the protection of minorities but on the other hand it has no powers to interfere or regulate these issues inside its "old members" which detain full competence regarding minority questions. If this sort of double standard policy is to be overcome it would require a unanimous decision by all member states. But this is unthinkable, unless France and Greece are giving up their dogmatic position of a unitary state. The strict application of the principle of formal equality prevents the recognition of group rights in field of ethnic minorities and does not allow a qualified protection of minorities.

The new developments in the field of minority protection, reflected in international law can be summarised as follows:
1. The mutual interdependence among states regarding ethnic minority question requires its internationalisation in order to neutralise its potentially destabilising effect. Since 1991 it has been definitely recognised that minority questions are a legitimate international issue and not any more an exclusive internal affair of the respective state. This is a principle, which, enshrined in article 1 of the FCNM, has been accepted formally by 34 European countries and Armenia and Azerbaijan.
2. The frame of the Pact for Stability has laid the base for more than 100 agreements for bilateral and regional co-operation, regulating sometimes among other issues also the protection of minorities. Thus all state parties to those agreements have gained recognition as kin-states.
3. With respect to the kin-state role of some states it has to be distinguished between:
a) Minorities with a kin-state, generally national minorities protected by a bilateral or multilateral agreement. Their kin-states have been accorded a certain amount of clearly defined rights on behalf of the respective minority.
b) Minorities without a kin state. Generally these ethnic minorities are entitled to call upon the control institutions of the European Convention of Human Rights under the universal prohibition of discrimination. As alternative the Council of Europe as controlling body of the international protection instruments (FCNM and Charter of Regional and Minority Languages) can be appealed to, but only in a monitoring rule ("soft law")

4. The weakness of bilateral agreements of minority issues in the frame of stability pact lies in the missing control of the implementation and in the lack of sanctions. This only partially can be compensated through the control mechanism, created by the Council of Europe for the international instruments FCNM and Regional and Minority Language Charter.
5. The protected national minorities have a double juridical relationship to both states, the one of residence and the kin-state with whom they share the cultural, ethnical or linguistic identity.
6. The primary responsibility for the protection of minorities lies with the states of residence. But also the kin states play a significant role for the protection of the minorities trying to conceive and develop all kinds of links and promotion with them. By this way they contribute to keep Europe's cultural diversity alive. Thus a sort of secondary responsibility of the kin-states on behalf of the protected minorities in neighbouring countries can be asserted.
7. States of residence and the kin-states detain a different interest in minority protection. Whereas the issues which counts more for residence states are equality before the law and social integration of the minorities, the kin-states are primarily interested to keep a high level of protection for their "relatives" in the neighbouring state. Both interests are legitimate, but need to come into a rational balance.
8. The primary and secondary competence for the protection of a minority is in a complementary relationship with each other. The protection function of the residence state is completed by measures of promotion of the kin-state and also reverse. This is basically a win-win-scenario.
9. Whereas the residence state is obliged to exercise its primary powers on minority protection under national law, the secondary competence of the kin state is partially based in codified international rules and law.
10. There is no doubt that the measures adopted by the kin states on behalf of the persons belonging to national minorities are touching very sensitive aspects. They affect foreign nationals also inside the territory of the kin-state either produce effects outside the national borders.
11. There is a need of a codification of the newly created international rules under official international law, which is claimed also by the Parliamentary Assembly of the Council of Europe.
12. There is a need to elaborate and to discuss a new juridical framework on territorial and personal (cultural) autonomy. Several positive examples of working territorial autonomies in Italy (South Tyrol, Aosta Valley, Friuli), Finland (Aland Islands), Denmark (Faroe and Greenland), Portugal (Madeira and Azores), Moldova (Gagauzia), Ukraine (Crimea), Spain and United Kingdom (various regions) prove the fundamentally beneficial effects of this concept for both minority rights and political stability.

In conclusion the protection of minorities in Europe does still not offer a very homogenous picture. In Western Europe, with very few exceptions, the political problems arising from the existence of national minorities in the different states are normally considered internal matter that can be dealt with constitutional means. On the contrary, in Central and Eastern Europe the differences between the political borders and the ethnic frontiers are regarded as a risk to the stability and security of the zone. To cope with this situation, similar to the one experienced after First World War, the Western powers, gathered today around the flags of the EU and the NATO, are demanding more or less openly that the countries wishing to become members of these organisation (supranational in character, not only international) ratify multilateral and bilateral treaties that ensure respect for both the borders and the national minorities living within their respective territories. While in 1920 the League of Nations was the body in charge of overseeing the treatment of minorities and trying to prevent any trouble which might one day escalate into an international conflict, nowadays this role is played by different institutional bodies, belonging to the OSCE, the Council of Europe and the EU, a fundamental preventive mission. Nevertheless, the shortcomings of the current system are also very obvious, such as the shortage of ways to implement the clauses included in the international treaties in force and the almost complete absence of international coercive mechanisms that could ensure its enforcement.

The needs for stability and security both at internal and at continental level have conditioned the shaping of legal documents aimed to protect national minorities. The role of international law in this field has not been very active to find solutions, but rather to contain conflicts and to restrict aspirations and claims for the minorities. Resorts to international law has been more frequent in Eastern Europe, while western European states are more inclined towards constitutional solutions for the accommodation of their national minorities. This fact, however cannot be taken as a proof of readier acceptance by the Eastern countries of their international obligations as compared with Western countries, because the submission by the former to internationally binding clauses seems to be due more to direct or indirect external pressure than to internal initiative. This is also true for recent developments in the ratification procedures for bilateral treaties of Good Neighbourliness as instruments conditioning their future incorporation into the European institutional framework.

This recalls the general difficulties faced by the international and constitutional law in regulating in an appropriate form the question of the protection of minorities. Not in vain there are some basic elements that obstruct the way of a satisfactory solution. As long as law continue to be just by states and international law is nothing else than expression of the interest of the states, there will be a huge imbalance between the interests represented by the voice of the state, even when it is a democratic one. On the opposite the will of the many minority communities, distant from the decision making centres converts them into passive subjects of the Law never to become producers of it. This imbalance conditions any juridical development in this field where interest and aspirations of the law making state agents are opposed or sometimes even incompatible with the interest of the concerned minorities. Some legal documents have shown a high degree of validity in some circumstances and have proved to be useful. However, a stable solution of the conflicts arising from the existence of minorities in some states depends not so much on the legal instruments of the current institutional structures but more in a fundamental reformulation of the political concepts which, although some of them are in decline, continue to preside over the exercising of power and in the end, the creation of the law.

References [ top ]

1. Single authors:
- Toggenburg, Gabriel, A Rough Orientation Through a Delicate Relationship: The European Union's Endeavors for its Minorities, EdoP Vol.4 (2000), n.16
- Biscoe, Adam, The European Union and Minority Nations, in: Peter Cumper and Steven Wheatley (eds), Minority Rights in the "New" Europe, The Hague 1999
- Pan, Christoph/Beate Sibylle Pfeil, National Minorities in Europe, Handbook, Vienna (Braumüller, Ethnos 63, 2003), Volume I and II
- Pan, Christoph, Minderheitenschutz in Europa und in der EU: Theorie und Praxis, in Europa Ethnica n.1/2003
- Steven Roach, Cultural Autonomy, Minority Rights and Globalization, Aldershot Ashgate 2005
- Danspeckgruber, Wolfgang, Self-governance plus regional integration: a possible solution to self-determination claims, in Marc Weller/Stefan Wolff (ed), Autonomy, Self-governance and Conflict Resolution, Routledge 2005
- Lantscher, Emma, Protection of National Minorities through Bilateral Agreements, in: European Yearbook of Minorities Issues Volume 1/2001/2, p.535-561 and also in: www.coe.int/t/e/human;
- Bakker, Edwin, Linguistic Rights and the Linguistic Rights and the OSCE, in S. Trifunovska (ed.), Minority Rights in Europe: European Minorities and Languages), TMS Asser Press, The Hague 2000
- Javaid Rehman, The Concept of Autonomy and Minority Rights in Europe in: P. Cumper and S. Wheatley (eds.), Minority Rights in the "New Europe", Kluwer Law International, London 1999
- John Packer, The Protection of Minority Language Rights through the Work of the OSCE Institutions, in S. Trifunovska (ed.), Minority Rights in Europe: European Minorities and Languages), TMS Asser Press, The Hague 2000
- Günther Rautz/Toni Ebner (ed.), Minority Dailies Association MIDAS, Bozen 2005
- Gabriel Toggenburg (ed.), Minority Protection and the Enlarged European Union - The way forward, CGI Books, Budapest 2004

2. Institutions:
- Council of Europe, Framework Convention for the Protection of National Minorities - Collected Texts (3d edition), 2005
- Council of Europe, Mechanisms for the implementation of minority rights, 2005
- Council of Europe, Filling the Frame, Five years of monitoring the Framework Convention on the Protection of National Minorities. All to be found in the Website of the CoE: www.coe.int
- www.coe.int/T/E/human_rights/minorities (in this website can be found the main monitoring results related to the FCNM country by country.
- Council of Europe, Periodical Report on the Implementation of the European Charter of Minority or Regional Languages at: www.coe.int/T/E/Legal_Affairs/Local_Regional_Democracy/Regional_or_Minority-languages/Documentation/
- Council of Europe, Information Centre editing the "Minority Website": www.humanrights.coe.int/minorities/
- European Centre for Minority Issues, at: www.ecmi.de
- The High Commissioner of National Minorities: www.osce.org/hcnm
- European Network for Regional and Minority Languages and Education: www.mercator-education.org
- www.ciemen.org/pdf/ang.PDF: Universal declaration of the collective rights of peoples
- EURAC Bozen, The Bolzano/Bozen Declaration on the Protection of Minorities in the Enlarged European Union, Bozen, 1 May 2004: www.eurac.edu/pecede
- EURAC Research, Minority Rights Information System MIRIS, at: http://www.eurac.edu/miris
- Eurac Bozen/Bolzano, Package for Europe - Measures for human rights, minority protection, cultural diversity and economic and social cohesion, Bozen 1998, available at: www.eurac.edu

The author, Thomas Benedikter, is an economist and social researcher in Bozen (South Tyrol, Italy, 1957), graduated in economics at the University of Munich (D) and in political economy at the University of Trento (I). Besides many years of professional activity in empirical social and economic research in his home region South Tyrol, since 1983 he has been continuously committed to activities in development co-operation projects and human rights NGO activities with particular regard to minority and indigenous peoples rights, peace and international conflict, information on North-South-issues. T.B. has been director of the South Tyrolean branch of the international NGO "Society for threatened Peoples" (based in Germany) and some other international solidarity initiatives. Committed to journalistic and humanitarian purposes he spent about two years with research and project activities in Latin America, the Balkans and South Asia (especially in Nepal, Kashmir and Sri Lanka) and is writing for several news-magazines and reviews. Since 2003 he is collaborating with the European Academy of Bozen (Department for autonomies and minorities) for an "Exchange Programme for the Politics of Recognition" (minority protection systems) with South Asian partners.