The Rights of Minorities and their Interstate Dimension.
This article, published in March 2011, explores the interrelationship between the Recommendations of the OSCE High Commissioner on National Minorities and the experience of monitoring the CoE Framework Convention.
1. INTRODUCTION
This paper reviews the “OSCE HCNM Bolzano/Bozen Recommendations on National Minorities in Inter-State Relations” with the approach of the Advisory Committee on the Framework Convention for the Protection of National Minorities (hereinafter the Framework Convention) towards this topic.
The author, alongside some former and current members of the Council of Europe, Advisory Committee on the Framework Convention (hereinafter Advisory Committee) and its Secretariat had offered their advice on the Recommendations on National Minorities in Inter-State Relations (hereinafter Bolzano Recommendations) and played a modest role in helping to shape this document. Regardless of all this, as the OSCE High Commissioner on National Minorities (hereinafter High Commissioner) points out correctly, these are his Recommendations.
The impact of national minorities on interstate relations was one of the crucial elements that led to the Council of Europe drafting the Framework Convention in 1994 and led to its ratification by 39 of its 47 Member States and its signature by a further four states. A significant number of these states had tense relations with neighbouring states, including those that had emerged from the violent conflicts in the Caucasus and former Yugoslavia in the 1990s. The Preamble to the Framework Convention refers euphemistically to “the upheavals of European history” as well as to stability, democratic security and peace recognizing that this instrument of international human rights law is set within a security context.
This paper addresses some of the interrelationships between the Bolzano Recommendations and the experience of the Advisory Committee Opinions, an outcome of it’s monitoring of the implementation of the Framework Convention in the State Parties. It addresses the Framework Convention as a human rights instrument, considers the different but mutually reinforcing approaches of the OSCE High Commissioner and the Advisory Committee, while it comments on the importance of minority rights and state cooperation for the more effective realization of these rights. However a considerable emphasis is given to the Advisory Committee “doctrine” represented through its country Opinions on aspects of minority rights and interstate relations. These include cross frontier contacts, bilateral treaties and agreements, cultural cooperation, the media and education. The paper concludes with some reflection on how the Bolzano Recommendations may be used by the Advisory Committee.
This paper does not attempt to explore in depth the situation of any particular national minority or the approach of a specific state in detail. Nor does this paper attempt to provide a comprehensive review of the approach of all the states that have ratified the Framework Convention, but it offers some insights based on a range of Opinions of the Advisory Committee. Furthermore the particular case of Hungarian minorities has been carefully dealt with in the scholarly analysis of the Council of Europe body, the Venice Commission and is not covered here.
2. THE RIGHTS DISCOURSE
In the minority rights discourse, where minority rights are an integral part of human rights, states are viewed as duty bearers and persons belonging to minorities as rights holders. This is reflected in the Recommendations 5 to 8 of the Bolzano Recommendations, which have the subheading “State obligations regarding persons belonging to national minorities”, while Recommendations 9 to 15 are referred to as “Benefits accorded by States to persons belonging to national minorities abroad”.
The Framework Convention emphasizes that key stakeholders need to work together in good faith and in a spirit of understanding and tolerance. It should go without saying that it is essential to build confidence and trust between these two groups of stakeholders, while they and other actors also have the duty to respect the principles of good neighbourliness, friendly relations and cooperation between states. At no stage does the Framework Convention and at no time has the Advisory Committee encouraged unilateral action by states to promote the rights of national minorities in “kin-states”.
The Advisory Committee Opinions are debated at the Council of Europe Committee of Ministers, all states may participate in this debate and often a number of them do. The subsequent Resolutions are based on the Opinions of the Advisory Committee, they can be influenced by any state and they call on the relevant state to implement the Committee of Ministers’ recommendations/Resolutions and the Opinions of the Advisory Committee. These Resolutions do not specify any role for any other state, while the Resolutions have hitherto always been adopted unanimously.
The Framework Convention stipulates that persons belonging to national minorities (hereinafter national minorities) have themselves a duty to respect national legislation and the human rights of others, including other minorities.
Neither states nor national minorities should “cherry pick” which articles of the Framework Convention they will uphold, including the sovereign equality, territorial integrity and political independence of states or imply double standards in protecting national minorities in the same or different states.
The general principles of the Bolzano Recommendations (1-4) resonate with various articles of the Framework Convention including Article 2, referred to above, and Article 1 records that the protection of national minorities……… forms an integral part of the protection of human rights and as such falls within the scope of international cooperation.
3. COMPARISONS OF MANDATES
The High Commissioner in his introduction to the Bolzano Recommendations recalls that his mandate is to be an instrument of conflict prevention at the earliest possible stage in regard to tensions involving national minority issues. The primary aim of these Recommendations and indeed of the High Commissioner’s office is not to protect minorities and their rights but to prevent conflicts.
The Preamble to the Framework Convention notes that “the upheavals of European history have shown that the protection of national minorities is essential to stability, democratic security and peace in this continent” recognizing that this instrument of international human rights law is set within a security context.
The Preamble also refers to the positive interrelationship between a pluralist and genuinely democratic society and minority rights, while it recognizes that a climate of tolerance and dialogue is a factor not for division, but for the enrichment of each society. These sentiments are echoed in the High Commissioner’s introduction. Consequently in principle the two different mandates of the High Commissioner and of the Advisory Committee are potentially fully compatible, although both institutions approach the same issues from a different perspective.
At one stage there was some concern that the Bolzano Recommendations might not reflect human rights concerns sufficiently, however the finally adopted set of Recommendations emphasize the rights embodied in the Framework Convention and the importance that states should attach to human rights instruments. The first section on general principles (Recommendation 3) highlights the need for the full support of international human rights standards and their agreed international monitoring mechanisms by states. This naturally includes the Framework Convention and its monitoring mechanisms. Furthermore the language of the High Commissioner’s Recommendations and his Explanatory Note has a close correlation with the language of the Framework Convention itself. This should come as little surprise since the Preamble of the Framework Convention records that it had particular regard to the CSCE Human Dimension Meeting Concluding Document (Copenhagen June 1990). Similarly the very same CSCE document has been central to the High Commissioner’s work.
4. MINORITY RIGHTS AND STATE RESPONSIBILITIES
Recommendation 3 refers to the legitimate concern of the international community in protecting human rights, including minority rights, and calls for the full support by states of international human rights standards and their agreed international monitoring mechanisms.
Additionally Recommendation 6 stipulates that states should respect and promote the rights of persons belonging to minorities.
Furthermore Recommendations 1 and 2 have parallels with Article 21 of the Framework Convention, which emphasizes the importance of fundamental principles of international law and in particular the sovereign equality, territorial integrity and political independence of states:
“Nothing in the present framework Convention shall be interpreted as implying any right to engage in any activity or perform any act contrary to the fundamental principles of international law and in particular of the sovereign equality, territorial integrity and political independence of States.”
Declarations entered by two states (Azerbaijan and Bulgaria) on ratifying the Framework Convention, refer specifically to the sovereign equality and the territorial integrity of states.
Recommendation 3 indicates/clarifies the duties of states and implicitly of minorities, while the recommendations add value by showing the balance between rights and duties of both states (home and kin-states) and minorities in avoiding ethnic conflicts. Less dramatically the Framework Convention stipulates that “[t]he Parties shall encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and cooperation among all persons living on their territory, […].”
States are expected to implement the principles set out in the Framework Convention through national legislation and appropriate governmental policies. However it does not imply the recognition of collective rights rather the protection of national minorities, who may also exercise these individual rights in community with others.
This is important when taken in context with the Framework Convention that stipulates that every person belonging to a national minority has the right freely to choose to be treated or not to be treated as such. The Opinions of the Advisory Committee always give considerable attention to this Article (3.1) and reject any attempt by governments to remove this free choice. Consequently no state, including external states, has the authority to treat any individual as a member of a minority against their free will and by implication must ask their consent or be sure of their implicit consent before doing so. Similarly, Article 15 of the Framework Convention guarantees the right of minorities to effective participation in public affairs and once again states have no authority to speak specifically on behalf of national minorities without their consent, though this does not limit them from raising minority rights issues.
The last four Recommendations (16-19) of the Bolzano Recommendations address the issues of multilateral and bilateral instruments and mechanisms. Recommendation 17 stipulates that in protecting national minorities states should be guided by the rules and the principles established in international human rights documents. This would include the Framework Convention and its participatory, monitoring mechanism with the local engagement of government ministries and NGOs that has been specifically created to support the implementation of its standards.
Thirty-nine states, each of whom is a participating State in the OSCE, have ratified the Framework Convention, which is an instrument of international law and its implementation is formally monitored by the Council of Europe one year after its ratification by a state and subsequently every five years. There is a continuing dialogue with the Advisory Committee during this five-year period; moreover, internal monitoring mechanisms should be established by states to identify how the legislation and policies, which are necessary for the effective implementation of the Framework Convention, are being implemented. Furthermore the Advisory Committee places considerable emphasis on the active participation of national minorities in the monitoring process and encourages close cooperation between the government and national minorities.
The Council of Ministers takes advice from the 18 members of the Advisory Committee, composed of independent experts nominated by each State Party and appointed by the Council of Europe Committee of Ministers. The Advisory Committee began its work when the Framework Convention came into force in 1998 and formed its first Opinions on how the Framework Convention was being implemented in State Parties in 2000. At the time of writing, the Advisory Committee has completed the first cycle of monitoring in all states, with the exception of the Netherlands, who ratified the Framework Convention in 2005. The majority of Council of Europe Member States ratified the Framework Convention in 1997 and 1998 and for most states the second cycle of monitoring has been completed.
5. THE ADVISORY COMMITTEE’S DOCTRINE ON “KIN-STATE” ISSUE
In the first set of Opinions of the Advisory Committee on the implementation of the Framework Convention in State Parties it is clear that the word “kin” or the phrase “kin-state” is rarely used, as often more appropriate language is found to describe the situation and the involvement of specific, often neighbouring states, to provide support for national minorities with the agreement and support of the host state. Indeed states include details of this in their State Reports on the implementation of the Framework Convention.
A. Contacts across Frontiers
In Article 17.1 the Framework Convention refers to the rights of national minorities to establish and maintain free and peaceful contacts across frontiers with persons lawfully staying in other states. The Explanatory Report to the Framework Convention, a negotiated text, notes that there are two important undertakings here that relate to the development of culture and to the preservation of identity. It stipulates that the provisions of this Article are largely based upon paragraphs 32.4 and 32.6 of the Copenhagen Document of the CSCE.
The new borders of the European Union (EU) have been particularly problematic for national minorities and their families living either side of borders.
In its first Opinion on Albania the Advisory Committee encouraged the strengthening contacts across borders, especially to Greece, proposing an improvement of visa arrangements not just for minorities with a kin-state, but also for all persons belonging to national minorities, including Roma.
Similarly the Advisory Committee noted that the abolition of visa-free travel for residents of the Russian-Estonian border region had caused difficulties for national minorities. It proposed that the new visa requirements be implemented in a manner that enabled national minorities to establish and maintain contacts across frontiers. Furthermore, the Advisory Committee welcomed the initiatives that had been launched to create an expeditious procedure for issuing free visas for the border region residents.
In the subsequent second Opinion on Estonia in 2005, the Advisory Committee noted as a positive development that Estonia and the Russian Federation had concluded a new agreement in October 2003, simplifying visa procedures for residents of border regions . However it noted that there remained a need to extend the validity of the simplified visa regime in the cross-border region. Additionally in 2005 the Advisory Committee suggested pursuing further bilateral projects to tackle environmental issues around Lake Peipsi with national minorities residing in the lakeside communities, where fishing had traditionally been a key activity.
Additionally in the first Lithuanian Opinion it noted the concern of the Belarusian community over the difficulties of obtaining visas for families to travel between Belarus and Lithuania and this concern was repeated once again five years later in the second Opinion, emphasizing the problem for families to visit during All Souls Day. Also in the first Opinion of 2003 there were concerns that new visa requirement were about to be implemented in Slovakia and that historical cross border relations would be hampered by the pre-accession agreements on border control and the Acquis of the EU.
Similar pre-accession concerns were expressed for minorities in Serbia, anticipating the visa problems that there may be for Hungarian and other minorities, which would have included Czechs, Slovaks, Bulgarians and Romanians. The Advisory Committee was concerned that this may unduly restrict the right of national minorities to establish and maintain free contacts across borders, when these other states join the EU.
Visa regimes outside the EU have also been an issue of concern. The first Opinion on Croatia expressed concerns on the visa regime between Croatia and Bosnia and Herzegovina, but in the second Opinion the Advisory Committee welcomed its abolition and the introduction of temporary visa-free travel between Croatia and Serbia and Montenegro.
Similarly within the EU, too, there have been issues with the Slovak authorities being invited to ascertain that there are no undue obstacles complicating the recognition of diplomas for foreign teachers invited to work in Slovak primary schools with instruction in the Hungarian language.
B. Bilateral Agreements and Transfrontier Contact
Article 18.1 of the Framework Convention refers to bilateral and multilateral agreements with other states, in particular neighbouring states, to ensure the protection of national minorities. The Advisory Committee has welcomed a number of these specifically bilateral agreements between Romania, Slovakia and Hungary but also bilateral agreements with other states.
In the first Opinion on Slovakia the Advisory Committee welcomed the fact that Slovakia was party to numerous bilateral treaties and cultural agreements touching upon the protection of national minorities. In the second Opinion five years later the Advisory Committee was fulsome in recognizing positive developments and the positive developments for minorities. It highlighted a bilateral agreement signed in January 2003 between the government of the Slovak Republic and the government of the Republic of Hungary on “Co-operation in the Fields of Culture, Education, Science, Sports and Youth”, which was not exclusively aimed at addressing minority issues.
The Advisory Committee highlighted points of principle that emerged from this/the? bilateral agreement between the Slovak and Hungarian governments on “Mutual Support for National Minorities in the fields of Education and Culture” (December 2003).
It reported that this agreement, which recognized that each state may support its “kin minority” living in the territory of the other State Party under agreed conditions, appeared to take due account of the principles of good neighbourliness, friendly relations and cooperation between states, encapsulated in Articles 2 and 18 of the Framework Convention.
The Advisory Committee considered that these were important principles in the rules governing kin-state support for their minorities.
However there were problems for national minorities in states outside the EU, for example difficulties for Ukrainian Romanian national minority students studying in Romania.
Furthermore in both the first and second Opinions on Croatia, Croatia was encouraged to pursue and conclude bilateral agreements on the protection of national minorities with its neighbours, in particular with Slovenia, Serbia and Montenegro.
Across the border in Serbia and Montenegro the Advisory Committee also supported attempts to conclude bilateral agreements with Croatia, while welcoming the signature of a number of new bilateral treaties and cultural agreements touching upon the protection of national minorities that included Romania and Hungary.
It also paid particular attention to the importance of the United Kingdom “Belfast (Good Friday) Agreement” (1998) as a contribution towards peace and stability and the protection of human rights in the region. It involved a set of actors including representatives of national minorities, the United Kingdom (UK) and Irish governments.
Subsequently in its second Opinion on the UK the Advisory Committee welcomed the “St Andrew’s Agreement” of 2006 and the close cooperation established between the governments of the UK and the Republic of Ireland, to promote peace, stability and to protect human rights in Northern Ireland. This agreement addressed issues of human rights, as well as specific issues on political participation, language, culture and heritage.
Additionally Article 18.2 of the Framework Convention refers to State Parties taking measures to encourage transfrontier cooperation.
In its second Opinion on the UK the Advisory Committee encouraged the UK to continue its close cooperation with the Republic of Ireland on the protection of human rights in Northern Ireland and to continue encouraging transfrontier contacts between persons living in the Republic of Ireland and Northern Ireland.
Similarly the Advisory Committee recommended that Estonia should continue to introduce initiatives to facilitate cross border contacts between Estonia and the Russian Federation .
C. The Monitoring and Implementation of Agreements
On a number of occasions the Advisory Committee has commented on the need to monitor the effective implementation of these bilateral agreements.
The Advisory Committee called upon the German authorities to pursue their policy of dialogue with representatives of the Danish minority in order to deal with difficulties faced by workers who commute over the border.
In another Opinion, the Advisory Committee welcomed cooperation forums that had been established, including the regular meetings of the representatives of the local governments of the Estonian-Russian border region , and it supported attempts to conclude additional bilateral arrangements to reinforce the protection of national minorities.
The Advisory Committee has also welcomed the monitoring of these bilateral agreements in Ukraine, where bilateral commissions examining the implementation of bilateral agreements have been set up with Germany, Hungary, Romania and Slovakia.
In Armenia, while noting the range of bilateral treaties and cultural agreements that were in place, the Advisory Committee emphasized the importance of ensuring that they were effectively implemented for the benefit of national minorities.
Although Opinions on Articles 17 and 18 have the most obvious reference to other states, this is also a reoccurring theme elsewhere in the implementation of the Framework Convention. The personal scope of application of the Framework Convention is limited in a number of states, by definitions or by names, to those minorities with an interrelated state.
In Albania the government’s approach is to recognize only those minorities with a “kin-state” – Greeks, Macedonians and Serbo-Montenegrins – as national minorities. The Roma and Vlachs/Aromanians were not being afforded the same protection of the Framework Convention, but treated as ethnolinguistic minorities with lesser rights.
A similar situation exists in Poland where the Advisory Committee noted that the system for protection of national minorities appears to be closely linked to bilateral agreements with neighbouring countries. This approach is reflected, in particular, in the State Report and in the text of the declaration contained in Poland’s ratification instrument .
D. Cultural Support
Article 5 of the Framework Convention requires that State Parties promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity.
In a number of states non-governmental organizations and kin-states play an important role in providing cultural support for national minorities including Bulgaria and Albania, where external support is given to the Vlach/Aromanian minority.
The Advisory Committee has taken the view that the governments themselves should take further measures and not be over-reliant on civil society initiatives or on kin-state support from abroad. These resources from abroad can include support for the publication of school text books and their free distribution to pupils, and financial support inter alia for cultural and artistic activities, etc. Certain states fail to make sufficient funds available for the realization of the rights of national minorities and are content for other states to fund these activities of national minorities.
On a number of occasions the authorities spoke to the Advisory Committee of fruitful relations with other states. Moldova recorded relations with 30 states many of which were in the Commonwealth of Independent States (CIS), including Belarus, the Russian Federation, Ukraine, etc. as well as Bulgaria and Turkey. These were commented upon positively by the Advisory Committee. These countries cooperate in the organization of training sessions and teacher and student exchanges. They also supply school textbooks in the languages of the minorities concerned, based on lists of needs drawn up by the Moldovan Ministry of Education.
Concerns have been expressed by national minorities that in some states they allocate considerably more resources and attention to its community abroad than to national minorities domestically. This has been exacerbated by the major movement of EU citizens since ten new states joined the EU in 2004.
This Advisory Committee has frequently welcomed cooperation between states through bilateral agreements that may benefit national minorities.
One of many examples was where it was noted that the effective cooperation between Armenia and Ukraine enabled both countries to develop bilingual publications for the respective communities.
However in its first Opinion on Poland, it warned against making the implementation of protective measures for national minorities “systematically conditional to progress recorded on similar issues in neighbouring countries.” The Advisory Committee continued by observing that this is not in line with the spirit of the Framework Convention and cannot compensate for any shortcomings in the protection provided under domestic law.
E. Minority language Media
A number of states rely on neighbouring states to provide much or all of the television broadcasting in minority languages.
The Advisory Committee noted the Danish minority in Germany do not have television broadcasts specifically targeted at them, while the programmes broadcast in Denmark cannot sufficiently address their needs.
There were similar concerns in Denmark of inadequate domestic broadcasting of radio and television in German.
In the Baltic States, from time to time, there have been tensions between individual states and Russia over the treatment by individual Baltic States of their Russian national minority. Although the different communities often live tolerantly together locally, intercultural dialogue is restricted as a majority of members of national minorities watch Russian-based television and news services, as inadequate support is provided for domestic television in the Russian language.
F. Minority Language Education
The Framework Convention stipulates that through education and research, State Parties should foster a knowledge of the culture, history, language and religion of their national minorities and the majority. It records that additionally they need to recognize that every person belonging to a national minority has the right to learn his or her minority language.
In some countries, the state has not developed educational policy for the education of national minorities in minority languages and provides little or no support. Often minority communities ensure teaching of their language through community based Sunday language classes and other initiatives, which are mainly supported by their kin-states.
In Armenia the representatives of national minorities pointed out that the authorities rely heavily on the action of the persons concerned and the support of kin-states through bilateral agreements. Typically this has been helpful for specific groups, often those with “kin-states”, including the Greek, Belarusian, German and Jewish communities amongst others; however, this help has been targeted at specific national minorities.
In a number of countries, minorities, who do not have kin-states, are at a disadvantage as they do not receive support for education from a “kin-state”. This is clearly the case for Roma, but there are many other groups of numerically smaller minorities who are adversely affected both in schools and in preschool education. Good bilingual, early education is often crucial for the successful transition of minority-language speaking children into schools, especially where primary school teaching is exclusively in the dominant state language. These include the Vlach and Roma in Serbia, the Assyrians and Yezidi in Armenia and the Ukrainians and other smaller minorities in Romania.
In Poland, where the emphasis is on support through bilateral interstate agreements, the Jews, Karaites, Lemks, Roma, Tartars (inter alia) are not supported by a neighbouring state. Furthermore, representatives of the Slovak minority complained of not having been sufficiently involved in the design of the educational provisions in the bilateral cooperation agreement between Poland and Slovakia.
In a number of these cases the Advisory Committee has strongly encouraged the authorities to take additional measures on behalf of these minorities. Although the support of other states is seen to be valuable, offering specialist skills and expertise thereby ensuring that certain groups with kin-states are effectively supported, the provision of resources by “kin-states” should not be seen as a justification for a State Party failing to act itself. A state should formulate a coherent policy and ensure a baseline of support that can be enriched by external expertise and resources, working in partnership with the government to reinforce the domestic capacity.
6. THE OSCE HCNM RECOMMENDATIONS AND THE ADVISORY COMMITTEE
The Advisory Committee consists of independent experts in the field of national minorities coming from a background in law, policy making or programme delivery associated with national minorities. They are provided with a wide range of background information including the Commentaries of the Advisory Committee itself but also important related work, including the latest set of Recommendations of the OSCE High Commissioner on National Minorities. In particular those already produced on education, language and political participation were “a source of inspiration” to the Committee in its work on specific states and Opinions. The new Advisory Committee Commentary on “Effective participation in cultural, social and economic life and in public affairs” benefited from the Lund Recommendations on Effective Participation of National Minorities in Public Life (Lund Recommendations)and hopefully the office of the High Commissioner will benefit from this new analysis, especially on cultural, social and economic life.
The value that members of the Advisory Committee give to the new Recommendations on National Minorities in Inter-State Relations will depend on the intrinsic value of the individual recommendations and the high reputation that the office of the High Commissioner has for thoughtful and sensitive work. They may have an added value when contextualized in a state and when the Advisory Committee hears the views of governments and of minorities on these recommendations and how useful they are The Bolzano Recommendations are timely as a valuable “source of inspiration” for the third cycle of monitoring of the Framework Convention that is due to begin in 2009.
There is no doubt that technically the Advisory Committee will benefit from these, as it reviews the implementation of the Framework Convention Article by Article and in particular Articles 5 on culture and 9 on media and Articles 12 and 14 on education and language, as well as article 17 and 18 on contacts across borders, bilateral and multilateral agreements including transfrontier cooperation.
The Advisory Committee will always be mindful that the High Commissioner has a conflict prevention role using diplomatic skills and confidence building, while the Framework Convention is a rights-based approach looking at rights holders and duty bearers. There can be many overlaps and synergies and these should be developed where ever possible, without confusing mandates and perspectives. The same state and its minority can be viewed from different perspectives and different remedies can be sought, with the Advisory Committee emphasizing processes as well as products in the implementation of its standards progressively over long periods of time based on a rights paradigm. Each party has very considerable respect for each other and neither would want to undertake anything that made the important work of the other more difficult, rather they want to build synergies.
The Advisory Committee Commentary on “Effective participation in cultural, social and economic life and in public affairs” was undertaken in three phases, two under two different Advisory Committees and the third through a highly participatory process of involving national minorities, the High Commissioner’s office and governments. It took advantage of the Lund Recommendations on political participation and during each phase the wide consultation led to some radical rethinking of the issues and to a much wider ownership. It was important to ensure the right process as well as the right product to give the Commentary an authenticity and a strong body of support.
Consequently it is valuable that the High Commissioner is continuing with a series of discussions on the Recommendations on National Minorities in Inter-State Relations. This will not only help lead to a deeper understanding and more effective interpretation of the Recommendations but also command a body of support. It also demonstrates a participatory approach enabling national minorities to speak for themselves.
7. CONCLUSIONS
The monitoring of the Framework Convention in 38 countries across Europe has shown the wide-ranging cooperation between states to protect national minorities. The Framework Convention, as a multilateral human rights treaty, is evidence of a desire by states to cooperate and be seen to cooperate multilaterally to protect national minorities. Evidence in the State Reports and the Opinions shows how the interest and sometimes legitimate concerns of states can be channelled constructively through forms of interstate cooperation to add to the strengthening of the implementation of the Framework Convention. Experience shows that in such a delicate area as interstate relations it is essential that this is conducted in a spirit of good faith, good neighbourliness, friendly relations and cooperation of all the states and national minorities concerned.
The protection of national minorities is the primary responsibility of states in which national minorities are part. They must ensure that they act in good faith and do not abrogate their responsibilities for minority rights to other states in an unreasonable way of reducing costs and their basic responsibilities to national minorities. Coherent policies and adequate resources are necessary to meet the obligations of the Framework Convention, while encouraging partnerships with other states whose expertise and capacity in certain areas may enhance this work. Where there are reciprocal forms of support and exchanges of expertise and good will between governments and minorities across frontiers, cultural diversity can be a source of enrichment for each society and for all communities.
There are a limited number of cases where the lack of protection of national minorities has caused tensions between states, these need to be resolved multilaterally through the support of the High Commissioner and the Council of Europe and its Resolutions based on the Advisory Committee Opinions. However there are very many more circumstances where governments have successfully cooperated together to promote the protection of national minorities.
The High Commissioner on National Minorities’ Bolzano Recommendations reflects his security mandate, drawing on his experience in this domain and the potential risks that he has seen. The Advisory Committee Opinions focus on the benefits that have been seen, or where more support is needed to ensure that the obligations of states to national minorities are met. Where there is cooperation between states that have a shared concern and there is a constructive approach to providing specific resources and expertise, it can lead to the more effective realization of minority rights. It can also help build good will between states and reduce the risk of tensions.
Nevertheless it remains important to be continually sensitive to the fact that unless the sovereign equality, territorial integrity and political independence of a state are respected by cooperating states, tensions can and will occur between states.
The responsibility to implement the Framework Convention effectively clearly rests with the state in which the national minorities are living. Furthermore it is the responsibility of the Council of Europe, with this multilateral instrument supported collectively by its 39 State Parties and its 47 Member States, to monitor and influence the effective implementation of the Framework Convention. It is in this “influencing” where close cooperation between the High Commissioner and the Council of Europe Framework Convention mechanisms is essential.
Consequently the frequent reference to international human rights standards and the language of the Framework Convention within the “Recommendations on
National Minorities in Inter-State Relations” is crucial and forms a good platform for future cooperation.
Alan Phillips
Independent Expert on National Minorities