This paper draws on the short formal presentation made to government officials and others in Strasbourg to mark the 10th Anniversary of FCNM coming into force. It highlights the key elements of the FCNM, major developments, participation and the impact of the Framework Convention.
The 10th anniversary of the Framework Convention for the Protection of National Minorities
( Full referencing is given in the published version)
This paper draws upon and develops the presentation made on the tenth anniversary of the Framework Convention for the Protection of National Minorities (FCNM) coming into force in February 1998. A ceremonial event was held in Strasbourg under the Slovak Chairmanship of the Council of Europe on March 11. Each speaker was constrained by time limitations as there were 18 platform speakers before any interventions from the floor.
The author’s presentation was delivered as President of the Advisory Committee on the Framework Convention (ACFC), representing the 18 independent experts and its capable, but small, Secretariat on the occasion of the 10th anniversary of the FCNM. However this paper allows for this presentation to be developed and open to a wider audience.
The Committee of Ministers and the Advisory Committee, made up of independent experts, are both involved in the monitoring of the Framework Convention.
The monitoring procedure requires each State to submit a first report within one year of entry into force of the Convention and additional reports subsequently every five years, or upon a specific request of the Committee of Ministers. Where it requires specific additional information, the Advisory Committee also sends States written questionnaires.
The drafting of a good State report requires a process of consultation with minority and non-governmental organisations, who are also encouraged to submit alternative reports or information. These reports are examined by the Advisory Committee, who make use of a wide variety of written sources of information from State and non-State actors. The Advisory Committee has also developed the practice of carrying out country visits where it meets with government officials, parliamentarians, representatives of minorities, NGOs, Specialised Bodies and other relevant interlocutors.
Monitoring, which in programming language would more correctly be described as evaluation, is a means to an end. Its existence can act as a focus for governments and the Council of Europe to reconsider the implementation of the FCNM systematically every five years. It also provides an incentive for some States to intensify their discussion and activities with national minorities. It may lead to a deeper understanding of the elements that have been successful and those that are not. However one key component is the participatory component in determining the impact of the convention.
The Advisory Committee has been able to take an objective view on the current implementation of the Framework Convention guided by objective evidence and opinion based on experience. The continuing impact of the implementation of the Framework Convention in States in the next ten years will depend on the how much the FCNM is owned by governments and by national minorities as a valuable set of objectives encapsulated in legal norms that meet contemporary needs.
The Preamble of the FCNM indicates its main objectives to:
- Promote stability, democratic security and peace in Europe.
– Advance pluralist and genuinely democratic societies.
– Create a climate of tolerance and dialogue to enrich each society.
– Assist cooperation between States and transfrontier cooperation.
The Framework Convention seeks to protect national minorities in specific areas that include:
- Choice of identity
– Prohibition of discrimination
– Full and effective equality
– Maintenance and development of culture and identity
– Spirit of tolerance and intercultural dialogue
– Freedom of assembly, association and expression
– Manifesting religion
– Freedom of expression and access to media
– Use of minority language with authorities
– Minority language names, signs and topographic indications
– Education for tolerance and understanding cultures
– Minority education establishments
– Learning a minority language
– Effective participation
– Population proportions in areas
– Minority organisations and contacts across boarders
– Bilateral agreements.
The precise form of this protection can be seen in the language of the Articles of the Framework Convention and in the way that these have been interpreted in the Opinions of the Advisory Committee and the Resolutions of the Committee of Ministers.
The most visible products of the Advisory Committee’s work are the detailed 64 Opinions that the Advisory Committee has presented on the implementation of the FCNM in 39 individual States. They are generally well received by States, their neighbours and by national minorities, though there have been robust debates from time to time in the Committee of Ministers in camera on specific Opinions. The response of States can be seen in the formal “Comment” that they are invited to provide, however they reveal only part of the picture.
At the outset there were substantial criticisms of the Framework Convention. These shortcomings include the programmatic formulation of the FCNM, the limited scope of the special measures called for in order to eliminate discrimination and to achieve dignity and equal rights, weak wording and frequent qualifications in the text and the absence of group rights.
Part of the criticism may be attributed to the lack of transparency in the drafting of the Framework Convention in 1994, and the failure then of the Council of Europe to consult National Minorities. It certainly did not follow the effective participation that is demanded in Article 15 of the Framework Convention. Nevertheless some States, exceptionally, did include a member of national minorities in the drafting.
However it is widely accepted today that some of the “weaknesses” in the language of the Framework Convention are in fact “strengths” as practice has developed and civil society has become engaged. The programmatic formulation provided a more targeted response to many social, economic and cultural issues, allowing States a margin of appreciation of how to respond to their unique environment, while upholding key principles. Group rights are not recognised in international human rights Conventions, however the Advisory Committee was able to show in practice that certain individual rights and programming responsibilities could only be enjoyed effectively in community with others. Consequently the weaker language in the text, that has been robustly interpreted by the Advisory Committee and the Committee of Ministers over the years, led to the wide ratification of the Convention that is unlikely to have happened with a more prescriptive Convention. It has shown an organic growth following Opinions of the Advisory Committee and Resolutions of the Committee of Ministers.
The complex architecture for monitoring the implementation of the Framework Convention that involved both the Advisory Committee and the Committee of Ministers was dismissed by some as political control over the monitoring body. There has been no political control over the Advisory Committee, which acts as a collegiate body and jealously defends its independence. The initial nomination by States of “Independent Experts” to the Advisory Committee could be misused however this is subject to a peer group review and to a formal election.
However there is dialogue with the Committee of Ministers, consequently their “Resolutions” have closely followed the Concluding Remarks of the Advisory Committee. To date these have been adopted unanimously giving them an added authority.
There was an additional concern that States arbitrarily identify which minorities are entitled to protection under the Framework Convention, thus implying the rejection of other groups. The Advisory Committee scrutinises those who are deemed to be national minorities to ensure that there has not been any arbitrary or discriminatory practice. In general most States have been broad in the personal scope of application of the Framework Convention, but challenges still remain here as in some cases there are inconsistent approaches. One such example is that the large majority of States enable Roma to be protected by the Framework Convention, however there are a few in Western Europe that have a narrow scope of application and do not offer protection to Roma.
The Framework Convention is an organic living instrument and so too is the monitoring mechanism. A number of important achievements have been consolidated from the first cycle:
– Blanket authorisation given to the ACFC to meet with NGOs and independent institutions in the context of country visits as from 2nd cycle and for subsequent cycles.
– Authorisation to hold meetings with NGOs and independent institutions outside the context of country visits during the second cycle.
– Invitations issued by governments to the Advisory Committee to visit are now extended in a quasi-systematic way.
– Follow-up seminars have been widely recognised as a useful opportunity to discuss monitoring findings and give further impetus to their implementation.
– The translation of Opinions and Resolutions into local languages although this does not always happen with some States.
– The training of Civil Society organisations, to help produce “shadow report” alternative reports and enter into dialogue with governments.
– Anniversary International Conferences after 5 and 10 years, the latter to review the impact of the Framework Convention.
– The production of Commentaries by the Advisory Committee on Education and the soon to be published Commentary on Effective Participation.
In December 2006, when the President of the Advisory Committee last presented its biannual report at the Committee of Ministers, many States commended the FCNM and the Advisory Committee and, at the end of the meeting, applauded my predecessor on his departure. This was not because the President was leaving the meeting, but it was an overt sign of their appreciation of the quality of the work of the Advisory Committee. This did not inhibit a robust discussion the next day on the personal scope of application of the Framework Convention in a subcommittee.
2. Council of Europe Committees
The President of the Advisory Committee is invited to the Rapporteur Group on Human Rights, where the President presents each and every one of our Opinions and listens to State Comments. It is an unusual procedure for a legally binding convention and was initially part of the criticism of the Framework Convention architecture, however this participatory dialogue helps resolve misunderstandings and helps show the depth of evidence and the accuracy of the analysis of the Advisory Committee. A Resolution is then formulated that is based on the Concluding Remarks in the Advisory Committee Opinion that is then recommended to the Committee of Ministers for adoption.
The President of the Advisory Committee has been able to resolve a significant misunderstanding on Opinions, promoted the Opinions of the Advisory Committee and clarified the scope of application of the Convention for new members of the Committee. Similarly the Advisory Committee also responds, not by changing its independent Opinions which are final once formed, but by adapting our language in the future to give greater clarity on certain issues. This is particularly apparent between different cycles of monitoring.
The DH-MIN, a Council of Europe committee of government experts from capitals, has proved useful in encouraging further discussion on cross-cutting issues identified in ACFC Opinions that include the collection of ethnic data, electoral legislation and legislation on political parties, access of national minorities to new media inter alia. The Advisory Committee and its Secretariat benefit from these analyses, while, in return, it contributes its wide-ranging practical experience to these deliberations. There is care to ensure that there is no duplication as the DH-MIN Committee does not engage in any way in the Advisory Committee country-by-country monitoring.
There is a continuity of action to promote the progressive implementation of the Framework Convention. Although States are generally required to report only every five years, events take place in the large majority of Council of Europe member States. These events include exhaustive and exhausting week-long visits to States, follow-up Seminars to present the Opinions, Comments and Resolutions of the Committee of Ministers. Additionally there are workshops and training events with government officials and national minorities to promote a local ownership of the Framework Convention and to promote its progressive implementation through joint initiatives between governments and national minorities. Resources limit what can be done; one of the major challenges is to support progressive officials, who wish to ensure that the Framework Convention is more effectively implemented throughout all parts of government and in all areas of a country.
A key principle behind the FCNM is to show that national minorities are valued in theory and in practice in a genuinely democratic society. Participatory processes are crucial to respond to the psychological situation in which minorities can find themselves, where, both individually and collectively, minorities can feel excluded and discriminated against. Participatory processes are also crucial for effective management of inter-community relation in a highly complex sphere.
The High Commissioner on National Minorities has shown that the FCNM can play a key role nationally and internationally in removing some of the rhetoric and drama on important minority issues. It places these issues within a legally binding set of Council of Europe negotiated standards and draws on wider, dispassionate, independent experience.
The Advisory Committee has used its wide experience accumulated inter alia in its 64 Opinions and State Comments to produce a Commentary on Participation. Its 6 page summary should be a genuinely practical tool for governments and national minorities alike. In the coming year the Advisory Committee would welcome invitations from States and minorities to help us promote constructive dialogue on this Commentary, which is a living document. Further discussions on this issue in this journal and elsewhere would also be valuable.
Many positive things have been said about the Framework Convention and the Advisory Committee. After 10 years there is a risk of becoming set in ways, making minor changes in procedural approaches, or the risk of adopting changes to avoid this criticism. Neither approach would be sensible. What the Advisory Committee intends to do is to go back to first principles and see how far it met the goals set for the Framework Convention, this can be seen implicitly in its Preamble, and how we can be more effective in meeting these goals. It needs to review the impact of the work over the last decade carefully to see where in the future it might have a greater impact in meeting the objectives, promoting the rights of national minorities and by working with governments, national minorities and other actors within the resource constraints that affect the work.
The Advisory Committee will be looking at ways in which international bodies, such as the European Court of Human Rights, the European Commission and the OSCE are using our Opinions and its impact.
Additionally it would be important to review the Resolutions of the Council of Europe on Opinions with the findings in the subsequent round to see what progress was identified.
Furthermore, as President of the Advisory Committee, I would like to encourage States and National Minorities to review together the impact of the FCNM locally, possibly through scientific studies, so that we can learn how best to use the Convention in the future.
Some questions come to mind:
- Do our Opinions help experienced officials, specialising in minority issues, take forward important issues with their colleagues?
– Are our own methods of working efficient?
– Are we sufficiently dynamic in promoting good quality information and understanding on the FCNM?
– Are we taking fully advantage of new ways of communicating and involving wider audiences in a participatory manner?
One new problem is emerging that we will need to present to the Committee of Ministers.
- How can we minimise the delay in releasing our initially confidential Opinions?
Delays are reducing the impact of our participatory work as it has been found that most Opinions are released for publication only after 7 months, and remain confidential for over a year after their adoption. The initial plan was for Opinions to be available after 4 months.
The impact of our human rights monitoring mechanisms has hitherto been considered in a somewhat ad hoc, anecdotal way. We need to change this.
There remain many challenges ahead to ensure that we remain dynamic and relevant for the next decade. The Advisory Committee cannot rest on its laurels and it must even question the applause, though this is likely to be well received by the friends and colleagues that support the Framework Convention.
There will be risks and the Advisory Committee will need advice and support. This should come from academic and civil society, as well as from national minorities and governments, as it moves into the third cycle of reporting, where it will use its thematic commentaries on Education and Effective Participation as well as its impact analysis to continue to strengthen its work.
The 10th anniversary of the Framework Convention for the Protection of National Minorities
The Framework Convention (FCNM) entered into force 10 years ago. It seeks to protect national minorities in specific areas. In the beginning there were substantial criticisms of the FCNM. Today, however, it is widely accepted that some of the “weaknesses” in the language of the FCNM are in fact “strengths” as work with the FCNM has developed and civil society has become engaged. In this context, the monitoring of the Convention by the so-called Advisory Committee, made up of independent experts, and by the Council of Europe Committee of Ministers plays a decisive role. The weak language in the text of the FCNM has led to its wide acceptance (39 states have by now ratified the Convention), but has been robustly interpreted by the Advisory Committee. Thus a number of important achievements have been consolidated from the first monitoring cycle. Nevertheless, there remain many challenges ahead to ensure that the monitoring process remains dynamic and relevant for the next decade.
Correspondence: Alan Phillips, President of the Advisory Committee on the Framework Convention for the Protection of National Minorities, Council of Europe, DG-HL, 67075 Strasbourg, France, e-mail: email@example.com, homepage: http://www.coe.int/T/E/human_rights/minorities/.